Report of the Standing Committee on Legislation

SECOND SESSION OF THE THIRTY-SIXTH PARLIAMENT

REPORT OF THE

STANDING COMMITTEE ON LEGISLATION

IN RELATION TO THE

STATE ADMINISTRATIVE TRIBUNAL BILL 2003 AND THE STATE ADMINISTRATIVE TRIBUNAL (CONFERRAL OF JURISDICTION) AMENDMENT AND REPEAL BILL 2003

Presented by Hon Jon Ford MLC (Chairman)

Report 24 October 2004 STANDING COMMITTEE ON LEGISLATION

Date first appointed:

May 24 2001

Terms of Reference:

The following is an extract from Schedule 1 of the Legislative Council Standing Orders:

“1. Legislation Committee

1.1 A Legislation Committee is established.

1.2 The Committee consists of 5 members.

1.3 The functions of the Committee are to consider and report on any bill or other matter referred by the House.

1.4 Unless otherwise ordered, the policy of a bill referred under subclause 1.3 at the second reading or any subsequent stage is excluded from the Committee’s consideration.”

Members as at the time of this inquiry:

Hon Jon Ford MLC (Chairman) Hon Peter Foss MLC

Hon Giz Watson MLC (Deputy Chair) Hon Bill Stretch MLC

Hon Kate Doust MLC

Staff as at the time of this inquiry:

Paul Grant, Advisory Officer (Legal) David Driscoll, Senior Committee Clerk

Johanna Edwards, Advisory Officer (Legal)

Address: Parliament House, Perth WA 6000, Telephone (08) 9222 7222 Website: http://www.parliament.wa.gov.au ISBN 1 9208 8620 6 Government Response

This Report is subject to Standing Order 337: After tabling, the Clerk shall send a copy of a report recommending action by, or seeking a response from, the Government to the responsible Minister. The Leader of the Government or the Minister (if a Member of the Council) shall report the Government’s response within 4 months. The four-month period commences on the date of tabling.

List of Acronyms and Defined Terms

AAT Commonwealth Administrative Appeals Tribunal

AAT Act Administrative Appeals Tribunal Act 1975

AAT Regulations Administrative Appeals Tribunal Regulations 1976

ADT New South Wales Administrative Decisions Tribunal

ART Administrative Review Tribunal

BDT Building Disputes Tribunal

BRB Builders’ Registration Board of Western Australia

Chief Justice The Chief Justice of Western Australia

Committee Legislative Council Standing Committee on Legislation

Conferral Bill State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003

Departmental appeals Appeals under Part V of the Environmental Protection Act 1986 arise from various licensing decisions and pollution control actions of the Chief Executive Officer of the Department of Environmental Protection

EDO Environmental Defender’s Office Western Australia (Inc)

EPA appeals Appeals under Part IV of the Environmental Protection Act 1986 arise from decisions of the Environmental Protection Authority when assessing proposals

FOI Freedom of Information

FRMA Fish Resources Management Act 1994 GAB Guardianship and Administration Board

Joint Statutory Committee New South Wales Joint Statutory Committee on the Office of the Ombudsman and the Police Integrity Commission

MBA Master Builders Association of Western Australia

MHRB Mental Health Review Board

Ombudsman Parliamentary Commissioner for Administrative Investigations

PRB Painters’ Registration Board

RPAT Racing Penalties Appeal Tribunal of Western Australia

RWWA Racing and Wagering Western Australia

SAT State Administrative Tribunal

SAT Bill State Administrative Tribunal Bill 2003

SCT Western Australian Small Claims Tribunal

TAB Totalisator Agency Board of Western Australia

VCAT Victorian Civil and Administrative Tribunal

WACARTT Western Australian Civil and Administrative Review Tribunal Taskforce

WACAT Western Australian Civil and Administrative Tribunal CONTENTS

GOVERNMENT RESPONSE LIST OF ACRONYMS AND DEFINED TERMS EXECUTIVE SUMMARY AND RECOMMENDATIONS ...... i

EXECUTIVE SUMMARY ...... i The Committee’s General Observations on the Legislation...... i Matters Relating to the Practical Implementation of the Legislation ...... ii Amendments Proposed by the Committee...... ii State Administrative Tribunal Bill 2003 ...... ii State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003...... ii Amendments Proposed by the Government and Supported by the Committee...... iii State Administrative Tribunal Bill 2003 ...... iii State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003...... iii RECOMMENDATIONS...... iv CHAPTER 1 BACKGROUND ...... 1

REFERRAL ...... 1 CONSULTATION WITH STAKEHOLDERS ...... 1 CHAPTER 2 ADMINISTRATIVE LAW IN WESTERN AUSTRALIA - THE EXISTING TRIBUNAL SYSTEM ...... 3

WHAT IS ADMINISTRATIVE LAW? ...... 3 THE DISTINCTION BETWEEN MERITS REVIEW OF ADMINISTRATIVE DECISIONS AND JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS ...... 4 THE IMPORTANCE OF AN EFFECTIVE ADMINISTRATIVE LAW SYSTEM ...... 6 A MYRIAD OF TRIBUNALS ...... 8 RECOMMENDATIONS FOR REFORM OF THE SYSTEM OF ADMINISTRATIVE LAW IN WESTERN AUSTRALIA OVER THE LAST TWO DECADES ...... 10 Law Reform Commission of Western Australia (1982)...... 10 “WA Inc” Royal Commission (1992)...... 11 Thirty-Sixth Report of the Legislative Council Standing Committee on Government Agencies (1994) ...... 12 Commission on Government (1996)...... 12 Law Reform Commission of Western Australia’s Review of the Criminal and Civil Justice System (1999) ...... 13 THE WESTERN AUSTRALIAN CIVIL AND ADMINISTRATIVE REVIEW TRIBUNAL TASKFORCE REPORT ...... 15 ADVANTAGES OF THE PROPOSED SAT...... 16 SUPPORT FOR THE CONCEPT OF THE PROPOSED SAT...... 18 CHAPTER 3 ADMINISTRATIVE TRIBUNALS IN OTHER AUSTRALIAN JURISDICTIONS...... 21

VICTORIA...... 21 Structure ...... 22 Jurisdiction ...... 23 Application Fees...... 24 Timeliness ...... 25 NEW SOUTH WALES ...... 27 Structure ...... 27 Jurisdiction ...... 28 Application Fees...... 29 Timeliness ...... 29 Parliamentary Inquiry into the Jurisdiction and Operation of the ADT...... 30 User Group Satisfaction with the ADT ...... 30 COMMONWEALTH...... 30 Structure ...... 31 Jurisdiction ...... 32 Application Fees...... 33 Timeliness ...... 33 Concerns Regarding the Legalistic Nature of the AAT ...... 34 THE COMMITTEE’S OBSERVATIONS ...... 35 CHAPTER 4 OVERVIEW OF THE BILLS...... 37

THE LEGISLATIVE SCHEME ...... 37 THE SAT BILL...... 37 Part 1 - Preliminary Matters ...... 37 Part 2 - Establishment of the SAT...... 37 Part 3 - Jurisdiction of the SAT...... 38 Part 4 - SAT’s Procedure ...... 39 Part 5 - Appeals from the SAT...... 42 Part 6 - Membership of the SAT ...... 43 Part 7 - Administration of the SAT ...... 44 Part 8 - Other Matters...... 44 Part 9 - Minor Amendments to other Acts ...... 45 THE CONFERRAL BILL...... 45 CHAPTER 5 PROPOSED GOVERNMENT AMENDMENTS TO THE BILLS...... 51

PROPOSED GOVERNMENT AMENDMENTS TO THE SAT BILL...... 51 Clause 3...... 51 Clause 11...... 52 Clause 32...... 52 Clause 34...... 52 Clause 35...... 53 Clause 36...... 53 Clause 37 ...... 53 Clause 39 ...... 53 Clause 43 ...... 54 Clause 44 ...... 54 Clause 45 ...... 54 Clause 48 ...... 56 Clause 52 ...... 56 Clause 54 ...... 56 Clause 58 ...... 56 Clause 60 ...... 56 Clause 61 ...... 57 Clause 63 ...... 57 Clause 66 ...... 57 Clause 75 ...... 57 New Clause 79A...... 57 Clause 83 ...... 58 Clause 91 ...... 58 Clause 93 ...... 58 Clause 99 ...... 58 Clause 104 ...... 59 Clause 155 ...... 59 Clause 158 ...... 60 New Clause 159A...... 60 Clause 164 ...... 60 Clause 166 ...... 62 New Clause 166A...... 62 PROPOSED GOVERNMENT AMENDMENTS TO THE CONFERRAL BILL ...... 62 CHAPTER 6 THE JURISDICTION OF THE PROPOSED SAT...... 69

THE OBJECTIVES OF THE PROPOSED SAT ...... 69 THE JURISDICTION OF THE PROPOSED SAT...... 69 The Original Jurisdiction ...... 70 The Review Jurisdiction ...... 71 ENCOURAGING THE RESOLUTION OF MATTERS BEFORE PROCEEDINGS ARE COMMENCED IN THE PROPOSED SAT...... 74 THE COMMITTEE’S OBSERVATIONS ...... 76 THE COMMITTEE’S ANALYSIS OF THE PROPOSED JURISDICTION OF THE SAT ...... 79 THE INCLUSION OF MATTERS WITHIN THE JURISDICTION OF THE PROPOSED SAT BY WAY OF ENABLING LEGISLATION...... 80 PARLIAMENTARY REVIEW OF THE JURISDICTION AND OPERATION OF THE PROPOSED SAT ...... 81 CHAPTER 7 THE STRUCTURE OF THE PROPOSED SAT...... 83 THE BASIC STEPS TO BE TAKEN BY THE PROPOSED SAT WHEN DEALING WITH A MATTER ...... 83 MEMBERSHIP OF THE PROPOSED SAT...... 83 The Exclusion of Public Sector Employees from Membership of the SAT...... 84 JUDICIAL LEADERSHIP AND THE PERCEIVED LEGALISTIC NATURE OF THE PROPOSED SAT ...... 90 Judicial Leadership...... 90 The Committee’s Observations...... 93 The Perceived Overly Legalistic Nature of the Proposed SAT...... 94 The Lack of a Less Formal, Low Cost, Alternative within the Proposed SAT...... 102 Proposed Amendments to the Taxation Administration Act 2003 ...... 105 Small Claims Tribunal ...... 108 THE COMMITTEE’S OBSERVATIONS ...... 111 REPRESENTATION OF PARTIES BEFORE THE SAT...... 113 Representation by Non-Lawyers...... 113 Representation of Incapacitated Persons...... 118 STANDING FOR THIRD PARTIES...... 121 EXPERT ASSISTANCE AND SPECIAL REFEREES ...... 125 WHETHER THE PROPOSED SAT MODEL HAS SUFFICIENT REGARD TO THE ROLE OF THE OMBUDSMAN IN RESOLVING DISPUTES ARISING FROM ADMINISTRATIVE DECISIONS ...... 127 CHAPTER 8 THE POWERS OF THE PROPOSED SAT...... 133

FAILURE TO COMPLY WITH A DECISION OF THE PROPOSED SAT ...... 133 POWERS OF ENTRY AND INSPECTION ...... 136 POWER OF ARREST ...... 141 THE POWER TO ISSUE INJUNCTIONS AND MAKE DECLARATIONS...... 143 THE ABROGATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION...... 151 PARLIAMENTARY PRIVILEGE ...... 153 CONTEMPT...... 154 ACCESS TO DOCUMENTS AND THE CONFIDENTIALITY PROVISIONS OF THE FISH RESOURCES MANAGEMENT ACT 1994 ...... 157 CHAPTER 9 APPEALS FROM THE PROPOSED SAT...... 161

APPEALS AGAINST DECISIONS OF THE PROPOSED SAT...... 161 Appeals “…on a question of law” ...... 162 Existing Appeal Rights for Matters Proposed to be Transferred to the SAT...... 174 LOSS OF APPEAL RIGHTS UNDER THE TRANSITIONAL ARRANGEMENTS...... 189 THE ABOLITION OF PRIVATIVE CLAUSES...... 189 THE COST OF APPEALS ...... 190 THE COMMITTEE’S OBSERVATIONS ...... 196 CHAPTER 10 PRACTICAL ISSUES ASSOCIATED WITH THE IMPLEMENTATION OF THE PROPOSED SAT ...... 197 CONSULTATION ON THE DEVELOPMENT AND IMPLEMENTATION OF THE PROPOSED SAT ...... 197 Committee Finding ...... 199 FITTINGS AND LAYOUT OF THE PROPOSED SAT ...... 200 Client Access to the SAT Building...... 200 The Court-like Design of Hearing Rooms...... 201 ACCESSIBILITY AND SECURITY FOR TRIBUNAL MEMBERS ...... 202 Elevator...... 202 Guardianship and Mental Health Hearing Rooms ...... 203 The Largest Hearing Room...... 204 THE OPERATION OF THE PROPOSED SAT IN RURAL AND REMOTE AREAS OF THE STATE ...... 204 THE PROVISION OF ASSISTANCE TO UNREPRESENTED LITIGANTS...... 209 RULES COMMITTEE...... 210 CHAPTER 11 REGULATION OF OCCUPATIONAL GROUPS BY THE PROPOSED SAT ...... 213

VOCATIONAL GROUPS TO BE REGULATED BY THE PROPOSED SAT ...... 213 PROCEDURE WITHIN THE DISCIPLINARY JURISDICTION OF THE PROPOSED SAT ...... 214 Public Hearings...... 214 The Removal of Investigatory Powers from Vocational Bodies ...... 217 SUBMISSIONS RECEIVED IN RELATION TO THE PROPOSED LEGISLATION FROM VARIOUS OCCUPATIONS ...... 217 Architects...... 217 Builders...... 218 Dentists ...... 221 Doctors...... 227 Electricians ...... 228 Hairdressers ...... 228 Lawyers...... 229 Nurses ...... 232 Occupational Therapists ...... 232 Painters ...... 233 Pharmacists...... 233 Security Agents...... 238 Veterinary Surgeons ...... 239 THE COMMITTEE’S OBSERVATIONS ...... 240 CHAPTER 12 THE FINANCIAL IMPLICATIONS OF THE PROPOSED SAT...... 241

THE COST OF THE PROPOSED SAT ...... 241 Estimated Cost of the SAT ...... 241 Costs Incurred to Date on the Administrative Arrangements for the Proposed SAT ...... 241 The Cost of the Existing Board/Tribunal System...... 242 Factors to be Considered in a Cost Comparison ...... 245 IMPACTS ON INDUSTRY AND PROFESSIONS...... 246 ESTIMATED RUNNING COSTS OF THE PROPOSED SAT...... 247 Appropriations from Certain Government Departments...... 247 FILING FEES...... 250 CHAPTER 13 RACING INDUSTRY APPEALS...... 253

THE CURRENT ARRANGEMENTS FOR THE CONDUCT OF RACING INDUSTRY APPEALS IN WESTERN AUSTRALIA ...... 253 WILL THE PROPOSED SAT BE ABLE TO MATCH THE CURRENT LEVEL OF EXPEDITIOUS DECISION-MAKING IN RACING INDUSTRY APPEALS? ...... 258 PRACTICAL PROBLEMS ASSOCIATED WITH THE PROPOSED SAT CONDUCTING RACING APPEALS AS HEARINGS DE NOVO...... 263 THE FINALITY OF DECISIONS ON RACING APPEALS...... 265 TIME LIMITS ON RACING APPEALS ...... 266 THE PRACTICALITIES OF REMOVING RACING APPEALS FROM THE PROPOSED SAT’S JURISDICTION...... 266 CHAPTER 14 THE PROPOSED GUARDIANSHIP AND ADMINISTRATION JURISDICTION OF THE SAT...... 269

INTRODUCTION ...... 269 The WACARTT Report ...... 269 The Conferral Bill ...... 270 JURISDICTION OF THE GAB...... 270 COMPOSITION AND FUNCTIONS...... 271 GUARDIANSHIP AND ADMINISTRATION - OTHER JURISDICTIONS...... 272 Victoria...... 272 New South Wales...... 273 Other States and Territories...... 274 OVERVIEW OF ISSUES RAISED BY THE SUBMISSIONS...... 274 SUBMISSIONS DIRECTED TO THE EXCLUSION OF THE GAB FROM THE SAT ...... 275 Special Nature of the Jurisdiction ...... 275 What is to be Gained by Amalgamation?...... 277 Accessibility...... 278 Confidentiality...... 282 Legalistic Framework...... 284 Observations Relating to the Exclusion of the GAB from the SAT...... 284 SUBMISSIONS RELATING TO THE SAT BILL, THE CONFERRAL BILL AND THE GAB...... 286 Clause 45 - Copies of Applications...... 286 Own Motion Power ...... 287 Examination of Accounts ...... 289 Setting Aside Transactions...... 292 Supervision by the Supreme Court...... 293 Exclusion of Public Servants...... 294 Review ...... 294 CHAPTER 15 THE PROPOSED MENTAL HEALTH JURISDICTION OF THE SAT ...... 297

THE ABOLITION OF THE MHRB...... 297 The Role of the MHRB...... 297 The Proposed SAT’s Mental Health Jurisdiction ...... 299 SUBMISSIONS IN FAVOUR OF THE PROPOSED SAT’S MENTAL HEALTH JURISDICTION ..300 SUBMISSIONS RAISING ISSUES OF CONCERN WITH THE PROPOSED SAT’S MENTAL HEALTH JURISDICTION...... 301 Practical Issues Associated with the Transfer of the Functions of the MHRB to the Proposed SAT ...... 301 REVIEW OF INVOLUNTARY PATIENT ORDERS IN OTHER AUSTRALIAN JURISDICTIONS..309 THE COMMITTEE’S OBSERVATIONS ...... 310 CHAPTER 16 MATTERS EXCLUDED FROM THE JURISDICTION OF THE PROPOSED SAT...... 317

INTRODUCTION ...... 317 APPEALS UNDER THE ENVIRONMENTAL PROTECTION ACT 1986 ...... 317 Previous Proposals to Include Environmental Appeals in a General Administrative Tribunal...... 317 Submissions in Support of the Proposed SAT Determining Appeals under the Environmental Protection Act 1986...... 319 THE COMMITTEE’S OBSERVATIONS ...... 322 APPEALS UNDER THE FREEDOM OF INFORMATION ACT 1992...... 324 The Determination of Freedom of Information Appeals in Victoria and New South Wales...... 324 The Government’s Position on the Absence of Freedom of Information Matters from the Jurisdiction of the Proposed SAT...... 324 THE COMMITTEE’S OBSERVATIONS ...... 326 CHAPTER 17 OTHER ISSUES RAISED ...... 327

INTRODUCTION ...... 327 INCORPORATED ASSOCIATIONS...... 327 THE OFFICIAL VISITOR OF WESTERN AUSTRALIA’S PUBLIC UNIVERSITIES ...... 327 MATTERS CONTAINED IN THE CONFERRAL BILL WHICH MAY BE BEYOND THE SCOPE AND PURPOSE OF THE BILLS ...... 328 ALTERNATIVES TO THE PROPOSED SAT MODEL ...... 329 A Number of Subject-Based Administrative Tribunals...... 329 THE COMMITTEE’S RECOMMENDATIONS REGARDING THE PASSAGE OF THE BILLS ...330 APPENDIX 1 STAKEHOLDERS TO WHOM THE COMMITTEE WROTE ...... 331

APPENDIX 2 WRITTEN SUBMISSIONS RECEIVED...... 337 APPENDIX 3 WITNESSES WHO APPEARED BEFORE THE COMMITTEE ...... 343

APPENDIX 4 MEETINGS IN MELBOURNE AND SYDNEY...... 347

APPENDIX 5 STATE ADMINISTRATIVE TRIBUNAL BILL 2003 - PROPOSED GOVERNMENT AMENDMENTS ...... 351

APPENDIX 6 STATE ADMINISTRATIVE TRIBUNAL (CONFERRAL OF JURISDICTION) AMENDMENT AND REPEAL BILL 2003 - PROPOSED GOVERNMENT AMENDMENTS ...... 365

APPENDIX 7 OUTLINE OF PROPOSED AMENDMENTS TO CONFERRAL BILL AND ENABLING ACTS ...... 415

APPENDIX 8 OUTLINE OF THE CURRENT POWERS OF ENTRY AND INSPECTION HELD BY THOSE VOCATIONAL BODIES TO BE INCORPORATED WITHIN THE PROPOSED STATE ADMINISTRATIVE TRIBUNAL...... 423

APPENDIX 9 ESTIMATED FINANCIAL IMPACT OF THE SAT ON INDUSTRY..431

APPENDIX 10 ESTIMATED ALLOCATION OF RUNNING COSTS FOR THE SAT ...... 441 EXECUTIVE SUMMARY AND RECOMMENDATIONS

EXECUTIVE SUMMARY

1 On September 16 2003, the Legislative Council referred both the State Administrative Tribunal Bill 2003 and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 to the Standing Committee on Legislation for consideration and to report back to the House by November 11 2003.

2 Over the course of its inquiry into the bills, the Committee received 48 written submissions, held public hearings involving a total of 24 witnesses, conducted site visits, and met with relevant parties in Melbourne and Sydney.

The Committee’s General Observations on the Legislation

3 The basic structure of the proposed State Administrative Tribunal is modelled closely on the Victorian Civil and Administrative Tribunal, although the types of matters dealt with by these two tribunals will vary considerably.

4 From the Committee’s meetings in Melbourne and Sydney, it became clear to the Committee that the ability of an administrative tribunal to achieve the aims of timeliness, informality and economy, is almost entirely dependent on the skills and vigour of the tribunal’s President. This suggests that the appointment of a suitable President will be critical in achieving the Government’s aims for the State Administrative Tribunal.

5 The experience of the Victorian Civil and Administrative Tribunal illustrates a general reluctance by parties to certain administrative decisions to genuinely resolve issues at the original decision-making stage. The Committee is of the view that the State Administrative Tribunal should encourage a full consideration of the issues raised by an administrator’s decision before lodgement of an application to review the decision.

6 Whilst judges and lawyers have supported the concept of judicial leadership, the Committee is not convinced by the arguments put forward in favour of the contention. The Committee remains concerned at the risk of excessive legalism and formality in proceedings in an organization where senior lawyers dominate. The Committee, however, does not propose any amendment to the State Administrative Tribunal Bill 2003 based on this view.

7 The Committee is of the view that it is important that both the State Administrative Tribunal Bill 2003 and relevant enabling Acts contain mechanisms to ensure that matters before the State Administrative Tribunal do not escalate into long, drawn-out,

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc i Legislation Committee TWENTY-FOURTH REPORT formal proceedings with appeals on technical points of law all the way to the High Court of Australia.

Matters Relating to the Practical Implementation of the Legislation

8 There were two matters of concern to the Committee relating to the practical implementation of the proposed State Administrative Tribunal - the consultation on practical problems and the design of the tribunal’s premises. The Committee has found that the consultation process was unsatisfactory in that it was inadequate, one- way and patchy. Some of the Committee’s recommendations in relation to the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 came about as a result of the Committee’s own public consultation, which quickly revealed the practical problems.

9 CHAPTER 10 deals with the concerns as to the structural design and location of the building which has led to unsuitable interior areas and inappropriate layout as well as poor access to the premises. Proper design of premises is a matter that was emphasised with the Committee by existing tribunals in Victoria and New South Wales.

10 The Committee has made 46 recommendations arising from its examination of the bills. This report also contains three minority recommendations of Hon Giz Watson MLC, which are not supported by the majority of the Committee.

Amendments Proposed by the Committee

State Administrative Tribunal Bill 2003

11 The Committee has recommended amendment to, or deletion of, the following clauses of the State Administrative Tribunal Bill 2003:

• Clauses 3, 11, 29, 39, 40, 64, 65, 86, 87, 89, 90, 92, 94, 104, 106, 115, 117, 118, 147 and 167.

12 The Committee has recommended the insertion of the following new clauses or schedules into the State Administrative Tribunal Bill 2003:

• New clauses 91A, 114A, 164A, 167A and New Schedule 1.

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003

13 The Committee has recommended amendment to, or deletion of, the following clauses of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003:

ii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations • Clauses 234, 237, 238, 242, 314, 388, 747 to 780, 782, 783, 786, 787, 788 to 794, 983, 984, 986, 1043 to 1062, 1259, 1406 and 1407.

14 The Committee has recommended the insertion of the following new clauses into the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003:

• New clauses 309, 315, 416, 457, 781 and 795.

Amendments Proposed by the Government and Supported by the Committee

15 The Committee worked closely with the Government over the course of the inquiry with respect to the Government’s proposed amendments to both bills.

16 The Committee has recommended that the State Administrative Tribunal Bill 2003 and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be amended by the Government’s proposed amendments as set out in appendices 5 and 6 of this report.

17 The Government’s proposed amendments as set out in appendices 5 and 6 also incorporate those amendments that the Government wishes to proceed with that are contained on Supplementary Notice Paper No 213, Issue No 1, September 10 2003 for the State Administrative Tribunal Bill 2003, and Supplementary Notice Paper No 214, Issue No 5, November 17 2003 for the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003.

State Administrative Tribunal Bill 2003

18 In Appendix 5, the Government has proposed amendment to, or deletion of, the following clauses of the State Administrative Tribunal Bill 2003:

• Clauses 3, 11, 32, 34 to 37, 39, 43 to 45, 48, 52, 54, 58, 60, 61, 63, 66, 75, 83, 91, 93, 99, 104, 155, 158, 164 and 166.

19 In Appendix 5, the Government has also proposed the insertion of the following new clauses into the State Administrative Tribunal Bill 2003:

• New clauses 79A, 159A and 166A.

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003

20 In Appendix 6, the Government has proposed amendment to, or deletion of, the following clauses of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003:

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc iii Legislation Committee TWENTY-FOURTH REPORT • Clauses 15, 72, 73, 111, 116, 144, 193, 215, 223, 237, 248, 298, 299, 309, 351, 378, 415, 426, 461, 470, 474, 476, 490, 522, 527, 530, 581, 585 to 587, 591, 593, 595, 598, 609, 634, 637, 638, 640 to 670, 672, 688, 691, 701, 714, 736, 742, 745, 782, 784, 813, 819, 821, 823, 834, 862, 875, 884, 886, 887, 925, 951, 952, 956, 982, 990, 1023, 1073 to 1078, 1081, 1083, 1085, 1093, 1094, 1137, 1140, 1141, 1149, 1155, 1159 to 1163, 1165, 1173, 1178, 1183 to 1185, 1190, 1199, 1200, 1204, 1233, 1238, 1247 to 1252, 1258, 1259, 1265, 1270, 1280, 1284, 1285, 1300, 1310, 1325, 1379, 1409 and 1410.

21 In Appendix 6, the Government has also proposed the insertion of the following new clauses into the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003:

• New clauses 12, 298, 299, 300 (x2), 301, 582, 585 to 587, 588, 604, 618, 672, 687 to 689, 690 (x2), 691 (x3), 692 (x3), 693 (x2), 694, 695, 986, 1198, 1252 and 1411.

RECOMMENDATIONS

22 Recommendations are grouped as they appear in the text at the page number indicated:

Page 39

Recommendation 1: The Committee recommends that the Government give consideration to extending the general administrative law principles relating to the provision of reasons for decisions, as contained in Subdivision 2 of Division 3 of Part 3 of the State Administrative Tribunal Bill 2003, to all administrative decision-making in Western Australia.

Page 42

Recommendation 2: The Committee recommends that the Government give consideration to extending, either through legislation or by non-statutory means, the 90-day time limit on the handing down of reserved decisions by the proposed State Administrative Tribunal, to all court and tribunal jurisdictions in Western Australia.

Page 62

Recommendation 3: The Committee recommends that the State Administrative Tribunal Bill 2003 be amended by the Government’s proposed amendments as set out in Appendix 5 of this report.

iv G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 68

Recommendation 4: The Committee recommends that the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be amended by the Government’s proposed amendments as set out in Appendix 6 of this report.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc v Legislation Committee TWENTY-FOURTH REPORT

Page 78

Recommendation 5: The Committee recommends that clauses 86 and 87 of the State Administrative Tribunal Bill 2003 be amended to apply a costs penalty in certain types of decisions to be reviewed by the proposed State Administrative Tribunal against those parties that have made no genuine attempt to resolve the matter when the original decision was made. This could be effected in the following manner:

Clause 86

Page 51, after line 16 — To insert —

“

(3a) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to —

(a) whether the party (in bringing or conducting the proceeding before the decision–maker in which the decision under review was made) genuinely attempted to enable and assist the decision–maker to make a decision on its merits;

(b) whether the party (being the decision–maker) genuinely attempted to make a decision on its merits.

”.

Clause 87

Page 52, after line 5 — To insert —

“

(aa) section 86(3a) applies to the party; or

”.

vi G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 79

Recommendation 6: The Committee recommends that Clause 29 of the State Administrative Tribunal Bill 2003 be amended to provide for certain reviewable decisions to be returned to the original decision-maker in those circumstances that the proposed State Administrative Tribunal is of the opinion that a matter before the Tribunal is substantially different to that which was dealt with by the decision-maker. This can be effected in the following manner:

Page 21, after line 24 — To insert —

“

(9) To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision–maker.

”.

Page 81

Recommendation 7: The Committee recommends that a new Clause 167A be inserted into the State Administrative Tribunal Bill 2003 to provide for a parliamentary inquiry into the proposed State Administrative Tribunal after it has been in operation for two years. This can be effected in the following manner:

Page 96, after line 4 — To insert —

“

167A. Legislative Council inquiry

As soon as practicable after the end of the period of 2 years after the day on which section 7 comes into operation an inquiry into the jurisdiction and operation of the Tribunal is to be conducted by —

(a) a committee of the Legislative Council established to conduct that inquiry; or

(b) an existing committee of the Legislative Council upon which the function of conducting that inquiry is conferred by that House.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc vii Legislation Committee TWENTY-FOURTH REPORT

Page 89

Recommendation 8: The Committee recommends that clauses 115, 117 and 118 of the State Administrative Tribunal Bill 2003 be amended to allow for the appointment of public sector employees as members of the proposed State Administrative Tribunal. This can be effected in the following manner:

Clause 115

Page 68, before line 17 — To insert —

“

(5) A person who is a public sector employee may be appointed to be a non- judicial member in respect of matters in the Tribunal’s original jurisdiction that are —

(a) of a class prescribed by the regulations; and

(b) specified in the instrument of appointment,

and a person so appointed is not allowed to be a sitting member of the Tribunal, or perform any function as a Tribunal member, in relation to any other matter.

”.

Clause 117

Page 69, after line 13 — To insert —

“

(5) A determination cannot be made under this section in respect of a person appointed under section 115(5) unless the Minister for Public Sector Management approves of it being made.

”.

viii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Clause 118

Page 70, line 1 — To insert after “member” —

“ (other than a person appointed under section 115(5)) ”.

Page 90

Recommendation 9: The Committee recommends that the President of the proposed State Administrative Tribunal develop guidelines for constituting a Tribunal with a member or members who may be public sector employees.

Page 98

Recommendation 10: The Committee recommends that Clause 11 of the State Administrative Tribunal Bill 2003 be amended to remove the requirement that at least one tribunal member on every tribunal must be a lawyer. This can be effected in the following manner:

Page 9, lines 4 and 5 — To delete the lines.

Page 9, lines 19 to 25 — To delete the lines.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc ix Legislation Committee TWENTY-FOURTH REPORT

Page 107

Recommendation 11: The Committee recommends that Clause 1259 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be amended to ensure that minor taxation matters are dealt with through the minor matters procedure of the proposed State Administrative Tribunal as recommended by the Committee’s Recommendation 12, subject to the retention of a very limited right of appeal by the Government on a specific question of law to the Supreme Court. This may be effected in the following manner:

Clause 1259

Page 572, line 7 — To insert after “(2)” —

“ or (2aa) ”.

Page 572, line 18 — To insert after “alone” —

“ unless subsection (2aa) applies ”.

Page 572, after line 18 — To insert the following subsections —

“

(2aa) A proceeding brought before the State Administrative Tribunal under this Act is included in the operation of section 91A of the State Administrative Tribunal Act 2003 if it is —

(a) a proceeding of a kind described in paragraph (a) of the definition of “minor proceeding” in subsection (1) of that section or included by regulations referred to in paragraph (b) of that definition;

(b) a proceeding for the review of a directly reviewable decision; or

(c) a proceeding for the review of a decision of the Commissioner under section 47 in connection with extending time for payment of tax or approving payment of tax in instalments,

but the effect of a no appeals election made under that section in relation to the proceeding is modified as described in subsection (2ab).

x G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

(2ab) The no appeals election does not prevent the Commissioner from making an appeal under the State Administrative Tribunal Act 2003 Part 5, without leave, against the decision in the proceeding on a question of law if the Treasurer —

(a) certifies in writing that the question is significant for the protection of the revenue of the State; and

(b) agrees to indemnify each other party to the proceeding in respect of any cost involved in the appeal,

but a decision made by the Supreme Court in dealing with the appeal does not affect the decision in the proceeding from which the appeal arose and the matter cannot be sent back to the State Administrative Tribunal for reconsideration.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xi Legislation Committee TWENTY-FOURTH REPORT

Page 112

Recommendation 12: The Committee recommends that a new Clause 91A be inserted into the State Administrative Tribunal Bill 2003 to provide for a minor matters procedure. This can be effected in the following manner:

Page 54, after line 15 — To insert —

“

91A. Minor matters procedure

(1) In this section —

“legally qualified person” means —

(a) a legal practitioner or a person entitled to practise as a legal practitioner in any other place; or

(b) any other person who, in the opinion of the Tribunal, has such qualifications or experience in law (whether acquired in Western Australia or in any other place in or outside Australia) as would be likely to afford an advantage in the proceeding;

“minor proceeding” means —

(a) a proceeding in which a monetary value can be ascribed to the matter in issue other than —

(i) a proceeding in which that monetary value exceeds the specified amount;

(ii) a proceeding dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act; or

(iii) a proceeding of a kind that an enabling Act excludes from the operation of this section;

(b) a proceeding of a kind that the regulations include in the operation of this section; or

xii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

“specified amount” means $7 500 and, on and after 1 January 2009, means $10 000.

(2) At or before an initial directions hearing in a minor proceeding the applicant may make one or more of the following elections in relation to the proceeding —

(a) a no legal representation election;

(b) a no hearings election;

(3) If the applicant makes a no legal representation election, a party —

(a) cannot be represented by a legally qualified person; and

(b) cannot be represented by any other person except as authorised by section 39(1)(a) to (e).

(4) If the applicant makes a no hearings election, the Tribunal is to conduct the proceeding in accordance with section 60(2).

(5) If the applicant makes a no appeals election, any decision in the proceeding is final and is not subject to appeal or review whether under Part 5 or otherwise.

(6) Without limiting section 166, the rules may provide for the practice and procedure to be followed in a proceeding in relation to which an election is made under subsection (2) and, for that purpose, may include provisions that modify the operation of this Act.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xiii Legislation Committee TWENTY-FOURTH REPORT

Page 118

Recommendation 13: The Committee recommends that Clause 39 of the State Administrative Tribunal Bill 2003 be amended to expand the class of persons who may represent a party as of right before the proposed State Administrative Tribunal to various experts. This can be effected in the following manner:

Page 28, after line 13 — To insert —

“

(ca) the person has particular knowledge or experience relevant to the matter that is being dealt with (other than experience obtained as or representing a party in another Tribunal proceeding);

”.

Page 121

Recommendation 14: The Committee recommends that Clause 40 of the State Administrative Tribunal Bill 2003 be amended to address the representation of persons before the proposed State Administrative Tribunal who are of age but not of legal capacity to represent themselves. This can be effected in the following manner:

Page 28, line 28 — To delete “child” and insert instead —

“ person who is not of full legal capacity ”.

Page 28, line 30 — To delete “child’s” and insert instead —

“ person’s ”.

Page 125

Recommendation 15: A minority of the Committee (Hon Giz Watson MLC) recommends that the Government should give consideration to allowing third party appeals to the proposed State Administrative Tribunal in environmental matters.

Page 125

Recommendation 16: A minority of the Committee (Hon Giz Watson MLC) recommends that the Government should give consideration to removing the proposed State Administrative Tribunal’s power to require undertakings as to costs or damages when a party seeks an injunction in an environmental matter.

xiv G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 126

Recommendation 17: The Committee recommends that Clause 64 of the State Administrative Tribunal Bill 2003 be amended to allow the parties to make submissions to the proposed State Administrative Tribunal in circumstances where the Tribunal wishes to engage advice or professional services at the parties’ expense. This can be effected in the following manner:

Page 42, after line 23 — To insert —

“

(3) Subsection (2) does not apply in relation to a party unless, before obtaining the assistance, the Tribunal advised the party of —

(a) its intention to obtain the assistance;

(b) the likely costs of obtaining the assistance; and

and gave the party an opportunity to be heard on the matter.

”.

Page 126

Recommendation 18: The Committee recommends that Clause 65 of the State Administrative Tribunal Bill 2003 be amended to remove the liability of the parties to pay for the appointment of a special referee and to clarify the effect of a special referee’s decision on the State Administrative Tribunal. This can be effected in the following manner:

Page 42, lines 29 to 31 — To delete the lines and insert instead —

“

(2) The Tribunal may either adopt a special referee’s decision or opinion, in whole or in part, or reject it.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xv Legislation Committee TWENTY-FOURTH REPORT

Page 131

Recommendation 19: The Committee recommends that a new Clause 164A be inserted into the State Administrative Tribunal Bill 2003 to recognize the inter-relationship between the proposed State Administrative Tribunal and the Ombudsman. This can be effected in the following manner:

Page 95, before line 7 — To insert —

“

164A. Arrangements with Parliamentary Commissioner

(1) In this section —

“Parliamentary Commissioner” means the Parliamentary Commissioner for Administrative Investigations appointed under the Parliamentary Commissioner Act 1971.

(2) The President and the Parliamentary Commissioner may enter into arrangements regarding the following —

(a) the co-operative exercise of the respective functions of the Tribunal and the Parliamentary Commissioner;

(b) measures to be taken by the Tribunal and the Parliamentary Commissioner to increase public awareness of the functions of the other.

(3) The Tribunal and the Parliamentary Commissioner are authorised to perform their functions in conformity with any relevant arrangements entered into under subsection (2).

”.

xvi G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 136

Recommendation 20: The Committee recommends that Clause 94 of the State Administrative Tribunal Bill 2003 be amended so as to limit the application of the penalty for non-compliance to only those orders where the clause has been expressly stated to apply in the terms of the order. This can be effected in the following manner:

Page 57, after line 10 — To insert —

“

(2a) Subsection (1) does not apply in relation to a decision unless —

(a) the Tribunal, in the decision, declares that subsection (1) applies; or

(b) after a person fails to comply with the decision, the Tribunal makes an order declaring that subsection (1) applies and the failure continues after notice of that order is served on the person.

”.

Page 141

Recommendation 21: The Committee recommends that Clause 92 of the State Administrative Tribunal Bill 2003 be deleted to remove from the proposed State Administrative Tribunal the power of entry and inspection. This can be effected in the following manner:

Page 54, line 16 to page 55, line 21 — To delete the clause.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xvii Legislation Committee TWENTY-FOURTH REPORT

Page 150

Recommendation 22: The Committee recommends that Clause 89 of the State Administrative Tribunal Bill 2003 be amended so that injunctions may only be issued by a judicial member of the Tribunal and on an interim basis only. This may be effected in the following manner:

Page 52, line 14 — To insert after “an” —

“ interim ”.

Page 52, lines 17 to 20 — To delete —

“

—

(a) in the case of an interim injunction, a legally qualified member; and

(b) in any other case,

”.

xviii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 151

Recommendation 23: The Committee recommends that Clause 90 of the State Administrative Tribunal Bill 2003 be amended to limit the application of a declaration to the parties and certain subsequent transactions involving the parties. This can be effected in the following manner:

Page 53, after line 26 — To insert —

“

(5) A declaration made under subsection (1) is binding, according to its terms, on—

(a) the parties to the proceeding; or

(b) such of them as are specified in the declaration,

and not otherwise.

”.

Page 159

Recommendation 24: The Committee recommends that Clause 388 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be deleted to remove the proposed State Administrative Tribunal’s access to certain information provided to the Department of Fisheries by commercial fishers. This can be effected in the following manner:

Clause 388

Page 169, lines 17 to 19 - To delete the clause.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xix Legislation Committee TWENTY-FOURTH REPORT

Page 166

Recommendation 25: The Committee recommends that Clause 104 of the State Administrative Tribunal Bill 2003 be amended to ensure that all personal rights matters before the State Administrative Tribunal may be appealed as of right to the Supreme Court of Western Australia. This can be effected in the following manner:

Page 63, before line 23 — To insert —

“

(13) Despite subsection (2), if the Tribunal’s decision —

(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and

(b) has the effect of depriving a person of the person’s capacity to lawfully pursue a vocation,

an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.

(14) In subsection (13) —

“relevant Act” means —

(a) an Act specified in Schedule 1, if it is an enabling Act; or

(b) an enabling Act prescribed by the regulations for the purposes of subsection (13).

”.

xx G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 167

Recommendation 26: The Committee recommends that clauses 314, 782 and 783 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be amended to give further effect to the Committee’s Recommendation 25:

Clause 314

Page 145, line 26 — To delete “, 133 and 134” and insert instead —

“ and 133 ”.

Clause 782

Page 348, line 2 — To delete “repealed” and insert instead —

“

amended as follows —

(a) by deleting “Board” and inserting instead —

“ State Administrative Tribunal ”;

(b) by deleting “appeal to the Supreme Court” and inserting instead —

“

without leave, appeal under section 104 of the State Administrative Tribunal Act 2003

”;

”.

Page 348, line 4 — To delete the line.

Page 348, line 11 — To delete the line.

Clause 783

Page 348. line 17 — To insert after “decision” —

“ or order ”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxi Legislation Committee TWENTY-FOURTH REPORT

Page 168

Recommendation 27: The Committee recommends that a new Schedule 1 be inserted into the State Administrative Tribunal Bill 2003 to give further effect to the Committee’s Recommendation 25. This may be effected in the following manner:

New Schedule 1

Page 98, after line 21 — To insert —

“

Schedule 1 — Relevant Acts for section 104

[s. 104]

Architects Act 1921

Builders’ Registration Act 1939

Chiropractors Act 1964

Dental Act 1939

Dental Prosthetists Act 1985

Employment Agents Act 1976

Finance Brokers Control Act 1975

Fish Resources Management Act 1994

Hairdressers Registration Act 1946

Land Valuers Licensing Act 1978

Legal Practice Act 2003

Licensed Surveyors Act 1909

xxii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Medical Act 1894

Motor Vehicle Dealers Act 1973

Nurses Act 1992

Occupational Therapists Registration Act 1980

Optical Dispensers Act 1966

Optometrists Act 1940

Osteopaths Act 1997

Painters’ Registration Act 1961

Pearling Act 1990

Pharmacy Act 1964

Physiotherapists Act 1950

Podiatrists Registration Act 1984

Psychologists Registration Act 1976

Real Estate and Business Agents Act 1978

Settlement Agents Act 1981

Taxi Act 1994

Travel Agents Act 1985

Valuation of Land Act 1978

Veterinary Surgeons Act 1960

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxiii Legislation Committee TWENTY-FOURTH REPORT

Page 170

Recommendation 28: The Committee recommends that new clauses 315 and 416 be inserted into the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 to give further effect to the Committee’s Recommendation 25. This may be effected in the following manner:

New Clause 315

Page 145, after clause 314 — To insert the following new clause —

“

315. Section 134 amended

(1) Section 134(1) is amended as follows:

(a) by deleting “125, 126, 127 or 128(2)” and inserting instead —

“ 126 or 127 ”;

(b) by deleting all of the subsection after “appeal” and inserting instead —

“

under section 104 of the State Administrative Tribunal Act 2003.

”.

(2) After section 134(1) the following subsection is inserted —

“

(1a) An appeal may be brought on any ground that involves a question of law, a question of fact or a question of mixed law and fact.

”.

(3) Section 134(2), (3) and (4) are repealed.

”.

xxiv G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

New Clause 416

Page 182, after clause 415 — To insert the following new clause —

“

416. Section 3A inserted

After section 3 the following section is inserted —

“

3A. Inherent jurisdiction of Supreme Court not affected

Nothing in this Act affects the inherent jurisdiction of the Supreme Court.

”.

Page 174

Recommendation 29: The Committee recommends that Clause 104 of the State Administrative Tribunal Bill 2003 be amended to ensure that government parties to matters before the State Administrative Tribunal are not able to use their greater financial resources to disadvantage other parties on an appeal to the Supreme Court. This can be effected in the following manner:

Page 63, after line 22 — To insert —

“

(12) In the case of a decision in a proceeding coming within the Tribunal’s review jurisdiction, any leave to appeal granted to the decision–maker is to be granted on the condition that the costs of each other party are to be met by the decision–maker, unless the court considers that it would be unjust or unreasonable to impose that condition, whether generally or in respect of the costs of a particular party.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxv Legislation Committee TWENTY-FOURTH REPORT

Page 207

Recommendation 30: The Committee recommends that clauses 3, 106, 115 and 147 of the State Administrative Tribunal Bill 2003 be amended to provide for magistrates outside of the metropolitan area to be made ex officio members of the State Administrative Tribunal. This can be effected in the following manner:

Clause 3

Page 4, after line 16 — To insert —

“

(aa) a magistrate performing functions as a member of the Tribunal; or

”.

Page 4, line 28 — To delete “or” and insert a comma instead.

Page 4, line 28 — To insert after “Deputy President” —

“ or an ex officio member ”.

Page 4, line 30 — To delete “or”.

Page 4, line 30 — To insert after “member” —

“ or an ex officio member ”.

Page 6, line 7 — To insert after “is” —

“ appointed, or authorised to perform functions, as ”.

xxvi G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Clause 106

Page 64, after line 8 — To insert —

“

(aa) ex officio members under Subdivision 3a;

”.

Clause 115

Page 67, line 28 — To delete “or” and insert a comma instead.

Page 67, line 28 — To insert after “Deputy President” —

“ or an ex officio member ”.

Page 68, lines 14 to 16 — To delete the lines.

Page 68, lines 19 and 20 — To delete “and, in the case of a magistrate, the Chief

Stipendiary Magistrate,”.

Clause 147

Page 83, line 5 — To insert after “than” —

“ — (a) ”.

Page 83, line 5 — To insert after “President” —

“

; or

(b) a magistrate performing functions as a member of the Tribunal.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxvii Legislation Committee TWENTY-FOURTH REPORT

Page 209

Recommendation 31: The Committee recommends that a new Clause 114A be inserted into the State Administrative Tribunal Bill 2003 to give further effect to the Committee’s Recommendation 30. This can be effected in the following manner:

Page 67, after line 24 — To insert —

“

Subdivision 3a — Ex officio members

114A. Magistrates to be ex officio members

(1) A magistrate is ex officio a member of the Tribunal.

(2) The President and the Chief Stipendiary Magistrate may enter into arrangements regarding the performance by magistrates of functions as members of the Tribunal.

(3) A magistrate is not authorised to perform any function as a member of the Tribunal except —

(a) when performing functions as a magistrate, as directed by the Chief Stipendiary Magistrate, in a place that is prescribed by the regulations for the purposes of this section; and

(b) as authorised by, and in conformity with, any relevant arrangements entered into under subsection (1).

”.

Page 210

Recommendation 32: The Committee recommends that the proposed State Administrative Tribunal have a well-resourced duty lawyer scheme.

Page 210

Recommendation 33: The Committee recommends that the proposed State Administrative Tribunal provide for a duty Tribunal member to be assigned to act as a ‘chamber magistrate’, to assist applicants with procedural issues arising at the initial application stage.

xxviii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 212

Recommendation 34: The Committee recommends that Clause 167 of the State Administrative Tribunal Bill 2003 be amended to extend the membership of the State Administrative Tribunal’s Rules Committee to include user group representatives. This may be effected in the following manner:

Page 95, line 26 — To delete “and” and insert a comma instead.

Page 95, line 26 — To insert after “President” —

“

and 2 persons appointed by the Minister who are not Tribunal members but have knowledge and experience that is relevant to matters that may be decided by the Tribunal

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxix Legislation Committee TWENTY-FOURTH REPORT

Page 223

Recommendation 35: The Committee recommends that clauses 234, 237, 238 and 242 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be amended to provide the Dental Board of Western Australia with a summary jurisdiction to deal with minor disciplinary matters. This may be effected in the following manner:

Clause 234

Page 99 line 8 — To delete the line.

Clause 237

Page 104 line 26 — To delete “Role of State Administrative Tribunal” and insert

instead —

“ Proceedings ”

Clause 238

Page 105 lines 3 to 8 — To delete the lines and insert instead —

“

(a) by deleting all of the subsection before paragraph (a) and inserting instead —

“

(1) There is proper cause for disciplinary action in respect of a registered person if —

”;

xxx G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

(b) in paragraph (b) —

(i) by deleting “named”; and

(ii) by deleting “, in the opinion of the Board,”;

(i) by deleting “other”;

(ii) by deleting “Board” before “by this Act” and inserting instead —

“ State Administrative Tribunal ”; and

(iii) by deleting “in the opinion of the Board”.

”.

Page 105 after line 8 — To insert —

“

(2) After section 30(1) the following subsections are inserted —

“

(1aa) The Board may allege to the State Administrative Tribunal that there is proper cause for disciplinary action, as mentioned in subsection (1), in respect of a person who is or was a registered person.

(1ab) If in a proceeding commenced by an allegation under this section in respect of a registered person, the State Administrative Tribunal is of the opinion that proper cause exists for disciplinary action the Tribunal may order that the name of the person be struck off the Register.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxxi Legislation Committee TWENTY-FOURTH REPORT

Page 105 after line 12 — To insert —

“

(b) by deleting “(1)” and inserting instead—

“ (1ab) ”;

Page 105 after line 26 — To insert —

“

(5) After section 30(2) the following subsections are inserted —

“

(2a) Instead of making an allegation to the Tribunal under subsection (1aa) or referring an allegation to the Tribunal under subsection (2), if the Board —

(a) is of the opinion that a proceeding before the Tribunal is not warranted by the nature of the allegations;

(b) has afforded to the person concerned the opportunity of giving an explanation to the Board either in person or in writing and is not satisfied by any explanation offered; and

(c) has afforded to the person concerned the option of the matter proceeding before the Tribunal and that option has not been taken up,

the Board may deal with the matter as described in subsection (3)(a), (b), (c), or (d) except that it cannot order that a person be fined more than $2 500 and it cannot make an order under subsection (3)(a) or (c) in respect of a person who is no longer a registered person.

xxxii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

(2b) The Board may, in addition to or instead of imposing 1 or more penalties under provisions referred to in subsection (2a), order the person concerned to pay all or any of the costs and expenses of or incidental to the proceedings.

(2c) The amount of any penalty, costs, or expenses that the Board orders under subsection (2a) or (2b) that a person pay is recoverable by the Board in any court of competent jurisdiction as a debt due to the Board.

”.

Page 106 line 8 — To insert before “Board” —

“ the ”.

Page 106 line 10 — To delete “Tribunal specifies” and insert instead —

“ is specified ”.

Page 106 line 11 — To insert before “Board” —

“ the ”.

Page 106 line 13 — To delete “Tribunal specifies” and insert instead —

“ may be specified ”.

Page 106 line 14 — To insert before “Board” —

“ the ”.

Page 106 line 14 — To insert after “Board” —

“ thinks fit ”.

Page 106 line 16 — To delete “Tribunal” and insert instead —

“ is specified in the order ”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxxiii Legislation Committee TWENTY-FOURTH REPORT

Clause 242

Page 108 after line 10 — To insert the following proposed paragraph —

“

”.

xxxiv G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 237

Recommendation 36: The Committee recommends that clauses 983, 984 and 986 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be amended to provide the Pharmaceutical Council of Western Australia with a summary jurisdiction to deal with minor disciplinary matters concerning pharmacists. This can be effected in the following manner:

Clause 983

Page 456 after line 15 — To insert —

“

(4) Instead of making an allegation to the Tribunal under subsection (2), if the Council —

(a) is of the opinion that a proceeding before the Tribunal is not warranted by the nature of the matter involved;

(b) has afforded to the person concerned the opportunity of giving an explanation to the Council either in person or in writing and is not satisfied by any explanation offered; and

(c) has afforded to the person concerned the option of the matter proceeding before the Tribunal and that option has not been taken up,

the Council may deal with the matter as described in subsection (3)(a)(iii) or (iv), (3)(b), or (3)(c) except that it cannot impose a fine of more than $2 500.

(5) The Council may, in addition to or instead of imposing 1 or more penalties under provisions referred to in subsection (4), order the person concerned to pay all or any of the costs and expenses of or incidental to the proceedings.

(6) The amount of any penalty, costs, or expenses that the Council orders under subsection (4) or (5) that a person pay is recoverable by the Council in any court of competent jurisdiction as a debt due to the Council.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxxv Legislation Committee TWENTY-FOURTH REPORT

Clause 984

Page 456 line 23 — To insert after “by” —

“

a penalty imposed under section 32(4), an order made under section 32(5) for the payment of costs or expenses, or

”.

Clause 986

Page 457, line 12 — To delete the line.

Page 240

Recommendation 37: The Committee recommends that the Government undertake a review of the legislation for those vocational bodies whose disciplinary functions are to be transferred to the proposed State Administrative Tribunal in order to develop a summary jurisdiction within all of those bodies for minor disciplinary matters.

xxxvi G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 251

Recommendation 38: The Committee recommends that a new Clause 309 be inserted into the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 to ensure that no fee is applied for the commencement of proceedings in the proposed State Administrative Tribunal’s under the Equal Opportunity Act 1984. This can be effected in the following manner:

Page 145, after clause 308 — To insert the following new clause —

“

309. Section 107 amended

After section 107(4) the following subsection is inserted —

“

(5) No fee is payable in respect of a proceeding commenced before the Tribunal under this Act.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxxvii Legislation Committee TWENTY-FOURTH REPORT

Page 252

Recommendation 39: The Committee recommends that a new Clause 457 be inserted into the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 to ensure that no fee is applied for the commencement of proceedings in the proposed State Administrative Tribunal’s under the Guardianship and Administration Act 1990. This can be effected in the following manner:

Page 193, after clause 456 — To insert the following new clause —

“

457. Section 119A inserted

After section 119 the following section is inserted —

“

119A. No fee for application to State Administrative Tribunal

No fee is payable in respect of an application made to the State Administrative Tribunal under this Act.

”.

Page 267

Recommendation 40: The Committee recommends that Division 113 and clause 1407 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be deleted so as to remove racing penalty appeals from the jurisdiction of the proposed State Administrative Tribunal. This can be effected in the following manner:

Division 113

Page 494, line 1 to page 501, line 31 - To delete the lines.

Clause 1407

Page 642, lines 1 to 8 - To delete the clause.

xxxviii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 292

Recommendation 41: The Committee recommends that the Government undertake a re-examination of the structure of the Public Trustee’s supervision of alternate administrators.

Page 292

Recommendation 42: The Committee recommends that as part of the deliberations of the Legislative Council committee of review established under the Committee’s Recommendation 7, the review committee should consider the issue of the potential conflict of interest in the Public Trustee supervising other administrators.

Page 311

Recommendation 43: The Committee recommends that clauses 747 to 780 inclusive, Clause 786, and clauses 788 to 794 inclusive of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be deleted so as to retain the existing Mental Health Review Board of Western Australia and provide for an appeal from that Board to the State Administrative Tribunal. This can be effected in the following manner:

Clauses 747 to 780 inclusive

Page 337, line 9 to page 347, line 23 - To delete the clauses.

Clause 786

Page 349, lines 11 to 16 - To delete the clause.

Clauses 788 to 794 inclusive

Page 349, line 19 to page 353, line 20 - To delete the clauses.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xxxix Legislation Committee TWENTY-FOURTH REPORT

Page 311

Recommendation 44: The Committee recommends that clauses 787 and 1406 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be amended so as to give further effect to the Committee’s Recommendation 43. This can be effected in the following manner:

Clause 787

Page 349, line 18 — To insert after “sections” —

“ 153, ”.

Clause 1406

Page 641, line 10 — To delete item 1 in the Table to clause 1406(2).

xl G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

Page 312

Recommendation 45: The Committee recommends that new clauses 781 and 795 be inserted into the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 so as to give further effect to the Committee’s Recommendation 43. This can be effected in the following manner:

New Clause 781

Page 347, after clause 780 — To insert the following new clause —

“

781. Part 6 Division 2A inserted

After section 148 the following Division is inserted —

“

Division 2A — Applications to State Administrative Tribunal

148A. Application for review

(1) A person in respect of whom the Board makes a decision or order who is dissatisfied with the decision or order may, without payment of any fee, apply to the State Administrative Tribunal for a review of the decision or order.

(2) Any other person who, in the opinion of the State Administrative Tribunal, has a sufficient interest in the matter may, with the leave of the Tribunal and without payment of any fee, appeal to the Tribunal against the decision or order.

148B. Constitution of State Administrative Tribunal, generally

(1) Except as provided in section 148C, for the purpose of exercising jurisdiction conferred under section 148A the State Administrative Tribunal is to include —

(a) a person who is a legally qualified member of the Tribunal;

(b) a person who is a psychiatrist or, if subsection (2) allows it, a medical practitioner who is not a psychiatrist; and

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xli Legislation Committee TWENTY-FOURTH REPORT

(2) If a person who is a psychiatrist is not readily available but a medical practitioner is available, that other person may be included instead of the psychiatrist if the proceedings do not involve anything that requires a clinical judgment to be made about a patient’s treatment.

148C. Constitution of State Administrative Tribunal, psychosurgical matters

For the purpose of exercising its jurisdiction under section 148A on an application for review of a decision or order under Part 5 Division 4, the State Administrative Tribunal is to include —

(a) a person who is a legally qualified member;

(b) a person who has experience and qualifications in neurosurgery and who was appointed to the State Administrative Tribunal after consultation by the Minister administering the State Administrative Tribunal Act 2003 with the Minister administering the Health Act 1911 after that Minister has consulted with the Royal Australasian College of Surgeons;

(d) a person who is neither a legally qualified member nor a medical practitioner.

148D. Proceeding before State Administrative Tribunal

Schedule 2A has effect with respect to a proceeding before the State Administrative Tribunal when exercising jurisdiction conferred by section 148A.

148E. Application for determination of question of law

Where a question of law arises in proceedings before the Board, the Board may apply to the State Administrative Tribunal for determination of the question.

”.

xlii G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

New Clause 795

Page 353, after clause 794 — To insert —

“

795. Schedule 2A inserted

After Schedule 2 the following Schedule is inserted —

“

Schedule 2A — Provisions concerning a proceeding before the State Administrative Tribunal

[Section 148D]

1. Representation

(1) A party to a proceeding before the State Administrative Tribunal may appear personally unless the State Administrative Tribunal, being of the opinion that the personal appearance of a person would be detrimental to the health of the person, orders that the person be represented.

(2) The State Administrative Tribunal may arrange for a person to be represented in proceedings before it if the person wishes the State Administrative Tribunal to do so.

2. Closed hearings

(1) A hearing before the State Administrative Tribunal is not open to the public unless the State Administrative Tribunal orders that it is open to the public.

(2) The State Administrative Tribunal may permit specified persons to be, or preclude specified persons (which may include witnesses) from being, present at a hearing.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xliii Legislation Committee TWENTY-FOURTH REPORT

(3) In this clause a reference to a hearing includes a reference to a part of a hearing.

3. Suppression of publication

(1) A person is not to publish by any means —

(a) any account of any proceeding or part of a proceeding before the State Administrative Tribunal commenced under this Act;

(b) any evidence given before the State Administrative Tribunal in a proceeding commenced under this Act;

(c) the contents of any document produced to the State Administrative Tribunal in a proceeding commenced under this Act; or

(d) any other information relating to a proceeding before the State Administrative Tribunal commenced under this Act,

that might identify —

(e) a person who is a party to the proceeding;

(f) a person who is related to, or associated with, a party to the proceeding or is, alleged to be, in any other way concerned in the matter to which the proceeding relates; or

(g) a witness in the proceeding.

(2) Except as permitted by regulations a person is not to publish by any means (other than by the display of a notice in the premises of the State Administrative Tribunal), a list of proceedings to be dealt with by the State Administrative Tribunal identified by reference to the names of the parties to those proceedings.

(3) Subclauses (1) and (2) do not apply to —

(a) the communication to persons concerned in proceedings in any court or tribunal of any transcript of evidence or other document for use in connection with those proceedings;

xliv G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT Executive Summary and Recommendations

(b) the communication of any transcript of evidence or any other document to a body that is responsible for disciplining members of the legal or medical profession or to persons concerned in proceedings before such a body;

(c) the communication to a body that grants assistance by way of legal aid of any transcript of evidence or any other document for the purpose of facilitating the making of a decision as to whether such assistance should be granted or continued in any particular case; or

(d) the publishing of a publication genuinely intended primarily for the use of members of any profession, being —

(i) a separate volume or part of a series of law reports; or

(ii) any other publication of a technical character.

(4) Without limiting subclauses (1) and (2) the State Administrative Tribunal may in any particular case order that —

(a) any evidence given before it;

(b) the contents of any document produced to it; or

must not be published, or must not be published except in the manner or to persons specified by the State Administrative Tribunal.

(5) A person who contravenes subclause (1) or (2) commits an offence and is liable to a fine of $5 000.

”.

Page 323

Recommendation 46: A minority of the Committee (Hon Giz Watson MLC) recommends that the proposed State Administrative Tribunal should determine appeals under the Environmental Protection Act 1986.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc xlv Legislation Committee TWENTY-FOURTH REPORT

Page 326

Recommendation 47: The Committee recommends that the Government amend, as a matter of urgency, the Freedom of Information Act 1992 so as to provide for a full merits review of decisions of the Information Commissioner by the State Administrative Tribunal. The Government should also streamline the appeal processes under the Freedom of Information Act 1992 so as to eliminate some of the earlier stages of review.

Page 330

Recommendation 48: The Committee recommends that, subject to the amendments recommended in this report, the State Administrative Tribunal Bill 2003 be passed.

Page 330

Recommendation 49: The Committee recommends that, subject to the amendments recommended in this report, the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 be passed.

xlvi G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 1 BACKGROUND

REFERRAL

1.1 On September 16 2003, the Legislative Council referred both the State Administrative Tribunal Bill 2003 (SAT Bill) and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 (Conferral Bill) to the Standing Committee on Legislation (Committee) for consideration and to report back to the House by November 11 2003.

1.2 Over the ensuing 13 months the Committee subsequently sought, and was granted by the Legislative Council, the following extensions of time in which to complete its inquiry and report on the two bills:

• to December 4 2003;1

• to April 30 2004;2

• to June 30 2004;3

• to September 23 2004;4 and finally

• to October 27 2004.5

CONSULTATION WITH STAKEHOLDERS

1.3 The Committee published an advertisement calling for public submissions on both bills in The West Australian newspaper on Saturday, October 11 2003. The deadline for lodgement of written submissions was November 11 2003.

1.4 The Committee also wrote to a large number of stakeholder organisations and individuals directly, inviting written submissions. Appendix 1 lists the stakeholder organisations and individuals that were contacted by the Committee.

1.5 The Committee received 48 written submissions, which are listed at Appendix 2.

1 Legislative Council, Parliamentary Debates (Hansard), October 14 2003, p11821. 2 Ibid, December 2 2004, p13843. 3 Ibid, April 7 2004, p1814. 4 Legislative Council, June 22 2004, Minutes No 139, p1090. 5 Legislative Council, Parliamentary Debates (Hansard), September 21 2004, p6025.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 1 Legislation Committee TWENTY-FOURTH REPORT 1.6 The Committee conducted hearings on Monday, March 8 2004, Wednesday, March 17 2004, Thursday, March 18 2004, Tuesday, March 23 2004 and Monday, April 5 2004. A list of the witnesses that appeared before the Committee is at Appendix 3.

1.7 The Committee conducted a site visit on Monday, March 29 2004 to the former premises of the Guardianship and Administration Board (GAB) at 20 Terrace Road, East Perth. On that same day, the Committee also inspected the current premises for the GAB, and the intended premises for the proposed State Administrative Tribunal (SAT) at 12 St George’s Terrace, Perth.

1.8 Between August 2 and 5 2004, the Committee travelled to Melbourne and Sydney and met with representatives and user groups of the Victorian Civil and Administrative Tribunal (VCAT) and the New South Wales Administrative Decisions Tribunal (ADT). Appendix 4 lists the people that the Committee met with in Melbourne and Sydney.

1.9 The Committee would like to thank the Attorney General, Hon Jim McGinty MLA, for granting the Committee access to the resources of the Parliamentary Counsel’s Office for the drafting of the Committee’s recommendations.

1.10 The Committee takes this opportunity to acknowledge the services of Hansard in the transcription of evidence gathered by the Committee. The Committee also expresses its appreciation to the staff of the Legislative Council Committee Office, and in particular: Paul Grant, Advisory Officer (Legal), Johanna Edwards, Advisory Officer (Legal) and David Driscoll, Senior Committee Clerk, for their assistance during the Inquiry and the preparation of this report.

2 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 2 ADMINISTRATIVE LAW IN WESTERN AUSTRALIA - THE EXISTING TRIBUNAL SYSTEM

WHAT IS ADMINISTRATIVE LAW?

2.1 Administrative law is that area of the law relating to the decisions of administrators.6 Halsbury’s Laws of Australia notes that:

“The exercise of power by administrators, including the State (or Crown), ministers, departmental officials, tribunals, boards, commissions and so on, must be based upon legal authority. The source of that legal authority may be statute or the common law, which includes prerogative power. The ambit of jurisdiction, or power, exercised by administrators may be interpreted by those administrators themselves, by tribunals and by courts. The courts have final authority to determine the scope of administrators’ power.”7

2.2 Butterworths Australian Legal Dictionary defines “administrative law” in the following terms:

“The legal principles governing the relationship between the government and the governed.”8

2.3 However, as Margaret Allars noted in her book, Introduction to Australian Administrative Law, public servant administrators are not the only decision-makers affected by administrative law:

“The core of central administration is found in government departments. But many areas of administration have been hived off to a variety of bodies, including boards, tribunals, advisory councils, bureaux, commissions, local councils or individuals holding particular offices. Not all of these are statutory authorities, deriving their legal powers from a statute. Some may be established in exercise of prerogative power, or on an informal basis for the purpose of consultation between a number of bodies or individuals… .

6 Margaret Allars, Introduction to Australian Administrative Law, Butterworths, Sydney, 1990, p1. 7 Halsbury’s Laws of Australia (Internet subscription service), paragraph 10-5 (current at July 13 2004). 8 The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p28.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 3 Legislation Committee TWENTY-FOURTH REPORT All these bodies and individuals, including Ministers, can be called administrators.

…

Power to make decisions affecting large numbers of members of the public is not only exercised by bodies deriving power from statute or prerogative. Political parties, trade unions, professional and sporting associations, and social clubs, whose rules are based upon contractual relationships between their members, exercise far- reaching power to affect individuals in pursuing a profession, trade or social interest. These are sometimes called “domestic bodies”… .”9

2.4 The key distinction in administrative law between public sector decision-makers and domestic bodies is that the prerogative superior court remedies (that is, certiorari, mandamus, and prohibition) are not available against the decisions of domestic bodies which obtain their decision-making authority from a contractual relationship without statutory backing.10

THE DISTINCTION BETWEEN MERITS REVIEW OF ADMINISTRATIVE DECISIONS AND JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

2.5 The SAT Bill is designed to establish a simple, uniform, system of merit review of administrative decisions. The Committee understands that the proposed SAT is not meant to displace the role of the Supreme Court of Western Australia in providing judicial review of administrative decisions.

2.6 The distinction between merit and judicial review of administrative decisions was clearly set out in a 2002 report of the Law Reform Commission in the following terms:

“The judicial review of administrative decisions is a compendious description of the process whereby a court determines whether or not decisions having an administrative character comply with the requirements of the law. The process includes the remedies the court should provide in consequence of any non-compliance with the law.

…

It is important to emphasise that the judicial review of administrative decisions is concerned only with the legality of those decisions.

9 Margaret Allars, Introduction to Australian Administrative Law, Butterworths, Sydney, 1990, p2. 10 Ibid, p34.

4 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System Judicial review is not concerned with the general merits of the decision under review, in the sense of whether the decision was the correct or preferable decision. The court will only be concerned with factual issues to the extent that a breach of the law is said to have occurred in the determination of the facts. Further, in conducting a judicial review, the court will only consider policy to the extent that it is said that the application of any particular policy contravened the law. If the decision maker complied with the law in arriving at his or her conclusion, the court has no power to intervene.

Judicial review is, therefore, very different to the review of administrative decisions on their merits. “Merits review” will not ordinarily be concerned with the legality of the decision under review because, unlike a court, the jurisdiction of the merits reviewer to intervene is not dependent upon the establishment of legal error. The merits reviewer will be concerned with the identification of the legal principles governing the decision under review. The primary focus of merits review, however, will be other factors relating to the decision under consideration. These other factors include the identification of relevant facts relating to the decision, the elucidation of any policy or policies appropriately applied in the administration of the power being exercised in the making of the decision and the application of that policy or policies to the facts as determined.

The contrast in the powers available to a merits reviewer as compared to a judicial reviewer reflects the fundamental difference in the functions being undertaken by those reviewers. After completing a review on the merits, it is usual for the merits reviewer to have power to substitute his or her decision for that of the original decision maker. By contrast, if a court arrives at the conclusion that an administrative decision has been made in contravention of the law, its powers will generally be limited to the making of declarations or orders giving effect to that conclusion and setting aside the decision under review. The usual result of such a conclusion is that the decision has to be made again by the decision maker, but this time according to the law as declared by the court. In this way the court confines itself to the determination of whether or not the law has been contravened and does not usurp the administrative powers and functions of the decision maker.

In Western Australia, merits review is currently undertaken by a diverse range of bodies, such as the Town Planning Appeals Tribunal and the Land Valuation Tribunal. In addition, the power to review on the merits a diverse range of administrative decisions is conferred

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 5 Legislation Committee TWENTY-FOURTH REPORT upon the courts – generally the Local Court, the Court of Petty Sessions, the District Court and, very occasionally, the Supreme Court. This merits review function has in the past been reposed in the courts largely because of the lack of a general merits review tribunal in Western Australia that is capable of conducting merits review in a broad range of subject areas. That omission is to be remedied by the creation of the SAT… .

In Western Australia, the judicial review of administrative decisions is undertaken in the Supreme Court of Western Australia. Parties seeking judicial review generally invoke one or other of two separate areas of jurisdiction of the Court. The first is the jurisdiction of the Court to grant prerogative remedies. Prerogative remedies involve the Court’s exercise of powers delegated to it by the Sovereign in relation to the direction of the actions of administrative officials, and the remedies granted by the Court are granted in the form of writs issued in the name of the Sovereign. The other jurisdiction commonly invoked is that of the Court relating to the grant of the remedies of injunction and declaration.”11

THE IMPORTANCE OF AN EFFECTIVE ADMINISTRATIVE LAW SYSTEM

2.7 Mr L B Marquet’s submission notes that:

“Fundamental to the concept of the Rule of Law is the right it confers on each citizen to equal treatment under the law. Adherence to that grundnorm obliges a government, in its relations with members of the community, to administer law and policy “without fear, favor, bias or discrimination”. It has the tandem responsibility to maintain a system that requires public officers in the course of making decisions affecting personal rights, title or interests to act within the relevant law and make a decision that is fair, reasonable and consistent with decisions made in similar cases.

The practical implementation of those principles, in common law jurisdictions, is that part of the general law referred to as “administrative law”. It forms a barrier against improper or corrupt bureaucratic practices. It subjects decisions to external scrutiny both as to the law invoked and the appropriateness of the decision made in reliance on the factual circumstances known to the decisionmaker.

11 Law Reform Commission of Western Australia, Report on Judicial Review of Administrative Decisions, Project No 95, December 2002, pp2-3.

6 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System External scrutiny goes beyond a ritualistic accountability mechanism that merely overturns arbitrary or capricious decisions. Arguably, it delimits state constitutional power and its use by the executive government, its servants or agents, where it is an interference with a person’s possession, enjoyment or exercize of rights that include such matters as livelihood.”12

2.8 The Law Society of New South Wales has set out the following administrative law principles that should be adopted by all tribunals conducting merits review of the decisions of administrators:13

• Generic issues of importance should be inherent in the decision-making processes of administrative tribunals.

• Alternate dispute resolution mechanisms should be incorporated into the tribunal’s processes.

• Modern mechanisms available with the latest technology should be adopted by tribunals to make their processes more efficient, such as electronic filing of documents, video/telephone conferencing, and in some matters conducting the proceedings using the Internet (as in the case of the Federal Court’s eCourt).

• Standards need to be imposed such as key performance indicators in the process of decision-making.

• Suitable powers should be available to give declaratory relief in appropriate circumstances.

• Members should have specialised skills and experience in dealing with issues arising during the proceedings and should not be intimidated by persons putting up issues for determination.

• Relevant and appropriate statistics should be kept for all matters dealt with by the tribunal, including differentiating between the nature, type and complexity of matters.

• Written procedures should be drafted to assist the parties in matters before the tribunal including making the procedures flexible and written in clear English without resorting to legalism and ‘court rules’ type procedures.

12 Submission No 47 from Mr L B Marquet, May 17 2004, p2. 13 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, pp1-2. The Committee notes that these points reflect the comments made to the Committee by Mr Peter Johnstone, Treasurer, The Law Society of New South Wales, at a meeting in Sydney on August 4 2004.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 7 Legislation Committee TWENTY-FOURTH REPORT • Written procedures should deal with making an application, the submission of information to be used in the proceedings, determining issues and matters on the documents only and other processes where the parties need assistance.

• Costs need to be awarded by administrative tribunals as part of determining the matter based on cost scales for events rather than on an item-by-item basis to cap costs in matters.

• Internet case search facilities should be available generally using computer technologies including the use of key word functions.

• Training of all staff of tribunals is essential and continuing legal education needs to form part of performance agreements with staff and adequate funding needs to be made available and quarantined for training.

A MYRIAD OF TRIBUNALS

2.9 The Commission on Government noted in 1996 that:

“Western Australia has a proliferation of tribunals which have been criticised for having no scheme or pattern, no common objectives or principles and no uniformity of procedures. The number of tribunals is increasing. The Western Australian Law Reform Commission (WALRC) reported that in 1981 there were approximately 257 appeal provisions in various pieces of legislation to more than 40 appeal bodies. In 1994, the Tribunals Review Discussion Paper produced for the Attorney General (Gotjamanos, 1994), prepared as part of a current review of the State’s independent tribunals stated that, so far, an estimated 360 appeal provisions in various Acts to approximately 54 diverse appeal bodies had been identified.

The WALRC (1982) recognised the following shortcomings in the Western Australian system:

• there were too many and varied rights of appeal;

• there were inconsistencies in rights of appeal from decisions of similar bodies;

• there was no consistent or simple code of procedure; and

• there was no consistent provision for ultimate determination of questions by the Supreme Court.

Other criticisms are that, in some circumstances, there are no appeal rights at all, people are not made aware of appeal rights and some 8 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System procedures are not easy to understand. There is little consistency in the composition of tribunals and, in some instances, ministers may determine appeals. Constitutionally, both the Franks Committee in the UK (1957: 25)14 and the EARC (1993: 2.101)15 do not consider ministerial determination of appeals to be desirable. Further, there is no general right for a person affected by an administrative decision to obtain reasons for that decision.”16

2.10 The Commission on Government observed that the following options are available in Western Australia to review the decisions of administrators:

“There are three main ways in which a person can have a decision independently reviewed. If legislation specifically provides for it, there may be an administrative appeal, that is, a review of the appropriateness of the decision. The appropriateness of a decision is determined on its own merits and not on a technical or legal basis.

Another way, under the common law, is a review of the lawfulness of the decision by the Supreme Court. According to the Royal Commission into Commercial Activities of Government and Other Matters (WA Royal Commission), the procedures for this type of judicial review could be described as ‘museum pieces’ (1992: II 3.6.1).

The third main avenue of redress is an investigation by an ombudsman. Matters of administration are the concern of an ombudsman, who can make recommendations for improvement. An ombudsman does not have determinative or enforcement power.

Decisions may also be reviewed by parliament and ministers. This informal method of appeal was considered ‘to be inadequate’ by the Commonwealth Administrative Review Committee (Kerr Committee) (1971: 8).”17

2.11 In April 1994, the former Legislative Council Standing Committee on Government Agencies noted that:

14 United Kingdom, Committee on Administrative Tribunals and Enquiries (Franks Committee Report) (1957) Report London: HMSO. 15 Queensland, Electoral and Administrative Review Commission (EARC) Report on Review of Appeals From Administrative Decisions, Brisbane, 1993. 16 Western Australia, Commission on Government, Report No. 4, July 1996, pp103-104. 17 Ibid, p94.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 9 Legislation Committee TWENTY-FOURTH REPORT “Cursory examination of the statute book will demonstrate that there are as many variations on the appeal/review question as there are statutes. Written laws of recent vintage tend to be more explicit about the rights and extent of appeal or review and include, or make provision for, the application of procedural safeguards.

Western Australia has no Administrative Law Act codifying the rights and obligations of parties to administrative appeals or review, the qualifications of adjudicators, the remedies available, and defining the supervisory jurisdiction of the [Supreme] Court.

The committee is not about to criticize the approach taken in the State and cast itself as the Moses of public administration. However, the committee does believe that the time has arrived when a more coherent approach can profitably be adopted to the question of administrative decisionmaking and review.”18

RECOMMENDATIONS FOR REFORM OF THE SYSTEM OF ADMINISTRATIVE LAW IN WESTERN AUSTRALIA OVER THE LAST TWO DECADES

Law Reform Commission of Western Australia (1982)

2.12 In January 1982, the Western Australian Law Reform Commission recommended the creation of a codified administrative appeals system within the existing court system.19 Specifically, the following arrangement was recommended:

“• An administrative appeal system should be developed which should consist of the Full Court of the Supreme Court, an administrative law division of the Supreme Court and of the Local Court and a limited number of specialist appellate bodies. Where there is an appeal in the first instance to the Administrative Law Division of the Local Court or to a specialist appellate tribunal there should be a further appeal on points of law to the Administrative Law Division of the Supreme Court. Appeals to the Full Court should be restricted to appeals on questions of law.

• Provision should be made for the appointment of lay members of the Administrative Law Divisions by the Chief Justice or the Chief Stipendiary Magistrate in appropriate cases.

18 Western Australia, Legislative Council, Standing Committee on Government Agencies, State Agencies: Their Nature and Function, Thirty-Sixth Report, April 1994, pp20-21. 19 Law Reform Commission of Western Australia, Reference 26(1), Review of Administrative Decisions: Appeals, January 1982.

10 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System • The appellate bodies should have power to exercise all of the powers and discretions conferred on the original decision- maker and should have power to: affirm the decision; vary the decision, or; set aside the decision and substitute a decision of its own; or remit the matter for reconsideration with or without direction or recommendations from the appellate body. A judge of the Administrative Law Division of the Supreme Court should have the power, either on his or her own motion or on application of a party to an appeal, after giving parties the opportunity to be heard in chambers, to remit a matter from the Administrative Law Division of the Local Court or vice versa.

• Each party should bear its own costs, subject to any special reasons for the appellate body to order one party to pay the costs of the other.

• A code of procedure for the appellate bodies should be developed. The Commission suggested that the appellate bodies should not be bound by the rules of evidence, there should be provision made for preliminary conferences in appropriate cases, and a person entitled to appeal against a decision should be able to require the decision-maker to furnish written reasons, which include findings of material questions of fact, with reference to the evidence.”20

“WA Inc” Royal Commission (1992)

2.13 In Part II of its 1992 report, which covered general matters associated with the Parliament, Government and public sector in Western Australia, the “WA Inc” Royal Commission endorsed the 1982 recommendations of the Law Reform Commission of Western Australia. The Royal Commission, however, was of the view that merits review should be conducted independently of the existing court system:

“The Law Reform Commission recommended the administrative appeals system should be located within the Supreme Court and Local Court and should involve judges and magistrates in appeal adjudication, although allowing for non-lawyer participation. In essence, this would result in members of the judiciary engaging in a review of the merits of various administrative decisions made by public officials, including ministers. Such decisions will often involve

20 Law Reform Commission of Western Australia, 30th Anniversary Reform Implementation Report (2002), at Internet site: http://www.lrc.justice.wa.gov.au/References/P26(I).PDF (current at September 30 2004), p84.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 11 Legislation Committee TWENTY-FOURTH REPORT a close consideration of discrete areas of commercial and economic activity and of relevant government policy, a responsibility going beyond the traditional function of the judiciary. There is a danger in such a process that the constitutional values inherent in a separation of judicial and executive power could be compromised. At the very least, the performance by the judiciary of such functions is not a traditional one for which it is uniquely qualified.

Since the Law Reform Commission first gave consideration to the matters here under consideration, both the Commonwealth and, more recently, the State of Victoria have had extensive experience with a system of administrative appeals conducted by an Administrative Appeals Tribunal which operates quite separately from the judiciary. In the Commonwealth, this separation is required by reason of a constitutional embargo on the merging of judicial and administrative functions embodied in the Commonwealth Constitution. The values reflected in the principle of separation of powers are also reflected in the administrative appeal system adopted in Victoria. The Commission believes this principle to be of importance to the maintenance of a strong and independent judiciary. In consequence, we invite consideration to the adoption of the separate structure for administrative appeals. We believe an Administrative Appeals Tribunal should be established to meet the needs identified in the Law Reform Commission's report.”21

Thirty-Sixth Report of the Legislative Council Standing Committee on Government Agencies (1994)

2.14 In its Thirty-Sixth Report, the former Legislative Council Standing Committee on Government Agencies included a draft State Agencies Bill 1994. This draft bill proposed the establishment of a standardised administrative decision-making process across government with decisions being made by suitably qualified “deciders”, with a judicial review role for the District Court.22

Commission on Government (1996)

2.15 The Commission on Government noted that there has been a division of opinion in Western Australia as to whether a separate administrative appeals tribunal was

21 WA Inc Royal Commission, Report II, 1992, at Internet site: http://www.slp.wa.gov.au/publications/publications.nsf/DocByAgency/EB7A73F79B8C4FCA48256985 0012E10E/$file/report2.pdf , (current at June 15 2004), pp3 - 8 and 3 - 9. 22 Western Australia, Legislative Council, Standing Committee on Government Agencies, State Agencies: Their Nature and Function, Thirty-Sixth Report, April 1994, Appendix: State Agencies Bill 1994, Parts 3 and 4, pp8-14.

12 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System required or whether a more suitable option was the establishment of an administrative law division within the existing court structure:

“The Chief Justice of Western Australia, the Hon. David Malcolm, chaired, in 1992, a Law Society seminar ‘Reform of Administrative Law’. The arguments for and against the WALRC proposal to use the existing court system or an [Administrative Appeals Tribunal], were considered. At the seminar, Mr Wayne Martin argued for the creation of a single tribunal separate from the courts. In his view, it was important to maintain the distinction between the arms of government. A separate tribunal was more likely to provide a cheaper, more informal and more accessible system for citizens. However, given the absence of a constitutional requirement to have a separate administrative merits review system, the model favoured by the Courts Committee of the Law Society was that of an administrative law division of the Supreme Court.”23

2.16 The Commission on Government itself was of the view that an “Administrative Review Tribunal” (ART) should be established under an Administrative Review Tribunal Act.24 The Commission noted that:

“Administrative justice must remain the priority. The primary objective of our proposed ART is to achieve the correct and preferable decision. We are mindful of the criticisms of legalism and formality made of both the Commonwealth and Victorian AATs. Ideally some form of mediation will result in a decision acceptable to the parties in dispute. For this reason, we recommend the new body be called an administrative review tribunal, rather than an administrative appeal tribunal. An excessively legalistic or formal approach is not required and can operate against the people for whom the system exists. An administrative review tribunal should not be like a court primarily because it exists for the convenience and benefit of applicants.”25

Law Reform Commission of Western Australia’s Review of the Criminal and Civil Justice System (1999)

2.17 The Law Reform Commission of Western Australia considered the existing board and tribunal system in Western Australia in its wide-ranging Review of the Criminal and

23 Western Australia, Commission on Government, Report No 4, July 1996, p105. 24 Ibid, p116. 25 Ibid, p116.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 13 Legislation Committee TWENTY-FOURTH REPORT Civil Justice System (1999).26 It recommended the establishment of a State administrative review tribunal with a broad-ranging jurisdiction, similar to the VCAT.27

2.18 The Law Reform Commission of Western Australia’s recommended “Western Australian Civil and Administrative Tribunal” (WACAT) model was broader in scope than the now proposed SAT, with a jurisdiction that included review of decisions under the Freedom of Information Act 1992 and the hearing of appeals from decisions of the Assessor for Criminal Injuries.28

2.19 The Law Reform Commission of Western Australia made a number of recommendations on a number of procedural and practical matters, many of which have carried through to the proposed SAT. For instance, it was recommended that any administrative board or tribunal that was not to be incorporated into the WACAT should be co-located with the WACAT for administrative economy.29 It was also recommended that where an existing board has an investigative function to determine if a regulation or code of conduct has been breached, then the investigative function should remain with that board, with the matter being referred to the WACAT for adjudication only if there is a case warranting determination.30 The Law Reform Commission also recommended that:

“The WACAT should be inquisitorial in nature and demonstrate a commitment to informality and accessibility for applicants.

The WACAT should ensure accessibility by travelling on circuit to determine matters where necessary and permit evidence to be taken by telephone and video-conference link where possible.

The WACAT should not be bound by the rules of evidence, legal technicalities or legal forms. It should be able to inform itself as it thinks fit and act according to equity, good conscience and the substantial merits of the case.

The procedure of the WACAT should rely heavily on conciliation, mediation and the facilitation of settlement of matters prior to hearing.”31

26 The Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System, 1999, at http://www.lrc.justice.wa.gov.au/index.htm , (current at August 24 2004). 27 Ibid, p293. 28 Ibid, pp294 and 296. 29 Ibid, p295. 30 Ibid, p295. 31 Ibid, p296.

14 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System

THE WESTERN AUSTRALIAN CIVIL AND ADMINISTRATIVE REVIEW TRIBUNAL TASKFORCE REPORT

2.20 The Western Australian Civil and Administrative Review Tribunal Taskforce (WACARTT), chaired by Mr Michael Barker QC (as he then was), produced a report in May 2002 which recommended the establishment of the SAT.32

2.21 The WACARTT itself had been established by Hon Jim McGinty MLA, Attorney General, in March 2001 to develop a model of a civil and administrative review tribunal as part of the Government’s program of law and justice reforms.33

2.22 The WACARTT report stated that:

“There currently exists a large number of statutory bodies usually described as tribunals or boards, as well as ministers and public officials (all of which may be referred to as administrative tribunals), which exercise a wide range of administrative review functions and other administrative powers. Many of these administrative tribunals, together with existing courts, conduct review of administrative decisions.

It has been a long-standing policy concern in this State that, while citizens can turn to a large number of bodies to appeal against particular administrative decisions or apply for the resolution of disputes, there is no coherent, unified and relatively comprehensive system through which they can seek redress of their grievances.

…

The Taskforce believes that the SAT it has recommended will avoid the proliferation of tribunals and boards and various court and ministerial administrative appeal avenues, reverse the apparent lack of uniformity and confusing variety of both procedures and administrative appeal avenues that currently exist, ensure effective and timely decision making, and provide the people of Western Australia with an administrative review and original decision making system which is independent and impartial and in which the people of the State may have the fullest confidence.”34

32 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australian Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002. 33 Ibid, p1. 34 Ibid, ppii-iii and vi-vii.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 15 Legislation Committee TWENTY-FOURTH REPORT 2.23 The Committee was advised that WACARTT’s report “…provided the blueprint…” for the SAT.35 The SAT Bill itself was drafted based on both the WACARTT report and the Victorian Civil and Administrative Tribunal Act 1998 (Vic).36

ADVANTAGES OF THE PROPOSED SAT

2.24 In his Second Reading Speech on the State Administrative Tribunal Bill 2003, Hon Nick Griffiths MLC, Minister for Housing and Works representing the Attorney General, stated:

“One of the Labor Government’s major commitments to the people of Western Australia at the last election was to establish a modern, efficient and accessible system of administrative law decision making across a wide range of areas. The need for a state administrative tribunal was very clear. The first recommendation for a SAT came from Mr John Wickham, later Hon Justice Wickham, in 1964 and was followed by numerous other recommendations, including the 1982 report of the Law Reform Commission, then chaired by Mr David Malcolm; and the 2002 report of the Western Australian Civil and Administrative Review Tribunal - WACART - task force, which was chaired by Hon Justice Michael Barker.

One of the primary benefits of a SAT is the right of citizens to have government decisions that affect their everyday lives reviewed by an impartial tribunal, independent of government. Caesar will no longer judge Caesar. Ministers will not be involved in reviewing decisions of their departments. The other benefits are numerous and include a right to obtain reasons for decisions made by public servants; improved quality and consistency in decision making by government; one overarching tribunal in which the public can seek redress without excessive delay, the need for legal representation or high costs; a forum that will be less formal, less expensive and more flexible than courts and will be more inquisitorial and less adversarial; transparent review of decisions resulting in greater public accountability of official decision making; the development of best tribunal practices - both procedural and in terms of common decision-making principles across various jurisdictions; and no more judgment of peers by their peers. Vocational bodies will no longer register people, investigate complaints and then prosecute and judge those complaints. The licensing and registration functions carried out

35 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p5. 36 Ibid.

16 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System by vocational bodies will be separate from the disciplinary function. Vocational bodies will now be accountable to Parliament and the decisions in disciplinary matters will be transparent.

SAT will create a cohesive new jurisdiction that will provide a clear and reliable framework for the resolution of a wide range of disputes and appeals currently undertaken by over 40 boards and tribunals and a range of administrative and ministerial appeal processes. SAT will consolidate over 500 decisions and appeal rights arising under 142 Acts. It will make decisions in a number of areas ranging from an appeal in a complex state revenue matter involving millions of dollars through to a decision about whether a dangerous dog should be put down.”37

2.25 The following advantages of the proposed SAT were identified in the WACARTT report:38

• the removal of confusion in the public mind by the creation of a single overarching tribunal;

• less formal, less expensive and more flexible procedures than traditional courts by adopting a more inquisitorial and less adversarial approach;

• the development of best tribunal practices, in both procedures and decision- making principles, across various jurisdictions;

• the provision of more appropriate and timely administrative justice;

• improvement in public accountability of official decision-making flowing from heightened scrutiny of administrative decisions; and

• avoiding the ad hoc creation of new tribunals in evolving areas of government decision-making.

2.26 It was submitted by the Government that:

“It is recognised that the establishment of SAT is long overdue. It is an exciting reform. It can only result in a system that is better than what is currently available. It will lead to greater accountability of

37 Hon Nick Griffiths MLC, Minister for Housing and Works representing the Attorney General, Western Australia, Legislative Council, Parliamentary Debates (Hansard), September 9 2003, p10736. 38 Department of Justice, Notes for Legislation Committee of the Legislative Council - SAT, February 26 2004, p3, and Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australian Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, piv.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 17 Legislation Committee TWENTY-FOURTH REPORT the public sector and decision making. It will allow for the normative effect: the dissemination of important decisions throughout government. It will assist uniform decision making processes throughout government. And it will provide quick, low cost, accessible dispute resolution for the general public without the necessity for lawyers or detailed knowledge of legalities and the rules of evidence.

With the establishment of SAT Western Australia will lead the country in providing responsive and affordable justice for many people, quickly and in a friendly, non-intimidating atmosphere.”39

2.27 The question as to whether the proposed SAT will, in fact, provide “…quick, low cost, accessible dispute resolution for the general public without the necessity for lawyers or detailed knowledge of legalities and the rules of evidence”, will be examined in detail in the following chapters.

2.28 The centralisation and wider publication of administrative decisions is viewed as a particularly significant benefit that will arise from the proposed SAT:

“…SAT’s decisions will be published on the web site. There is provision for that in the principal Bill. I think one of the greatest benefits of SAT is that the decisions will filter down through the public service. Hopefully, mechanisms will be implemented so that when a decision is made which affects health services and which has a direct impact on transport, for example, it will be filtered through the broader public service; whereas now it is very limited in its application.”40

SUPPORT FOR THE CONCEPT OF THE PROPOSED SAT

2.29 A number of submissions expressed support for the general principle of the proposed SAT.

2.30 The Law Society of Western Australia stated in its submission that it “…generally welcomes and supports the introduction of the proposed [SAT].”41 In a letter to the Committee dated May 24 2004, The Law Society of Western Australia further stated that:

39 Letter from Ms Judy Eckert, Barrister, Instructing Officer on the State Administrative Tribunal Legislation, June 17 2004, “Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submissions made to the Committee on the SAT Bills”, pp21-22. 40 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p19. 41 Submission No 36 from The Law Society of Western Australia, November 11 2003, p1.

18 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 2: Administrative Law in WA - the Existing Tribunal System “[T]he Society’s primary concern in relation to the SAT legislation is that it should move expeditiously through the legislature so that the State Administrative Tribunal can become operational. Presently, for example, obvious logistical problems are being caused by the need for many boards and tribunals, including the Legal Practitioners Disciplinary Tribunal, to make temporary or interim arrangements in anticipation of the introduction of the State Administrative Tribunal.”42

2.31 The Community Legal Centres Association (Western Australia) Incorporated stated that:

“The Association is of the opinion that the proposed [SAT] will improve access to justice for the clients of Community Legal Centres. The proposed structure and processes of the SAT allow for greater transparency and better administration of the law. The “user- friendly” nature of the SAT, as opposed to the current options available, will increase the accessibility to appeal and review of decisions which can have a significant impact on members of our community. The Association commends the State Government for its commitment to processes of administrative appeal and natural justice.”43

2.32 The Pastoralists and Graziers Association of Western Australia expressed its support for the proposed SAT, although it had some concerns that certain matters under the Environmental Protection Act 1986 would not be within the SAT’s jurisdiction:

“The proposed State Administrative Tribunal having legally qualified, independent persons with expertise in government administration will be welcomed.”44

42 Letter from Mr Ian Weldon, President, The Law Society of Western Australia, May 24 2004, p2. 43 Submission No 34 from the Community Legal Centres Association (Western Australia) Incorporated, November 11 2003, p1. 44 Submission No 29 from the Pastoralists and Graziers Association of Western Australia, November 11 2003, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 19

CHAPTER 3 ADMINISTRATIVE TRIBUNALS IN OTHER AUSTRALIAN JURISDICTIONS

3.1 The proposed SAT is modelled closely on the VCAT. Another relevant Statewide administrative tribunal model in Australia is the ADT in New South Wales. At the federal level, the Administrative Appeals Tribunal (AAT) may also be seen as a useful model for a large administrative tribunal with a wide-ranging jurisdiction.

3.2 It was suggested to the Committee that the ADT may represent a more suitable model on which to base a State administrative tribunal than the VCAT.45

3.3 The Committee travelled to Melbourne and Sydney in the first week of August 2004 and met with representatives of both the VCAT and the ADT, as well as key user groups and stakeholders in those jurisdictions.

3.4 Response to the proposals contained in the SAT Bill from people familiar with the operation of administrative tribunals in Victoria and New South Wales was generally positive. The Committee gained the impression from these meetings that the SAT Bill was widely seen as incorporating some of the most up-to-date and best practice administrative tribunal provisions in Australia.

VICTORIA

3.5 The VCAT was created on July 1 1998 and is established by the Victorian Civil and Administrative Tribunal Act 1998 (Vic). All, or part, of 14 boards and tribunals were amalgamated to form the VCAT. All of the major State tribunals have been amalgamated into the VCAT, except for the Victorian Mental Health Review Board.46 The Committee understands that it is anticipated that in 2005, the VCAT will also assume a professional disciplinary jurisdiction over lawyers and will also determine lawyer-client disputes.47

45 Submission No 47 from Mr L B Marquet, May 17 2004. 46 Meeting with representatives of the Victorian Civil and Administrative Tribunal, Melbourne, August 3 2004. 47 The Honourable Justice Stuart Morris, President, Victorian Civil and Administrative Tribunal, The Emergence of Administrative Tribunals in Victoria, a paper delivered at the Annual General Meeting of the Victorian Chapter of the Australian Institute of Administrative Law Incorporated, November 13 2003, p10.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 21 Legislation Committee TWENTY-FOURTH REPORT 3.6 There are 120 separate pieces of enabling legislation that provide for matters to be referred to the VCAT for determination.48

Structure

3.7 The VCAT is divided into three broad “Divisions” covering the following subject matters:

• Civil: dealing with disputes relating to consumer matters; credit; domestic building works; residential tenancies; and retail tenancies;

• Administrative: dealing with disputes between people and government agencies concerning land valuation; business licensing; planning; state taxation; freedom of information; Transport Accident Commission decisions; and various other administrative decisions; and

• Human Rights: dealing with matters relating to guardianship and administration, and discrimination.

3.8 The VCAT also reviews decisions made by a number of statutory professional bodies, such as the Medical Practice Board of Victoria.49

3.9 The VCAT had a budget of $22.73m for 2002-03. In that year, the VCAT was comprised of the following personnel:50

• seven judicial members;

• 39 full-time members;

• 148 sessional members; and

• 169 staff.

3.10 The President of the VCAT, currently the Honourable Justice Stuart Morris, is a Supreme Court Judge. There are also six Vice-Presidents, all County Court judges, from whom the heads of the three Divisions of the VCAT are appointed.51 The judicial members of the VCAT continue to sit as members of their respective Court as

48 Victorian Civil and Administrative Tribunal Internet site: http://www.vcat.vic.gov.au/CA256DBB0022825D/page/Legislation%2fPractice+Notes?OpenDocument &1=25-Legislation%2fPractice+Notes~&2=~&3=~ , (current at July 14 2004). 49 Victorian Civil and Administrative Tribunal, 2002-03 Annual Report, September 30 2003, p1. 50 Ibid, p2. 51 Ibid, pp24 and 34.

22 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 3: Administrative Tribunals in other Australian Jurisdictions well as in the VCAT.52 A number of Deputy Presidents are appointed to manage specialist case “Lists” within the three divisions of the VCAT.53 Senior members and other members serve on either a full time or sessional basis.54

3.11 Members are assigned by the President to specific Lists according to their expertise and experience. Of the 39 full time members, 30 are allocated to more than one List, with the remaining nine working exclusively within the Planning and Environment List.55

Jurisdiction

3.12 Applications received by the VCAT per List in 2001-02 and 2002-03 are set out in the table below:

Table 3.1 Applications Received by VCAT56

VCAT List 2001-02 2002-03

Residential Tenancies 69,191 66,216

Guardianship 8,743 8,717

Civil Claims 5,124 5,109

Planning and Environment 3,349 3,271

General and Taxation 1,537 1,843

Domestic Building 829 866

Anti-Discrimination 469 464

Retail Tenancies 215 222

Occupational and Business 107 137 Regulation

Land Valuation 182 124

52 The Honourable Justice Murray Kellam, ‘Civil and Administrative Tribunals - Can Their Performance be Improved?’, AIAL Forum No 29, Australian Institute of Administrative Law Inc, June 2001, p35. 53 Victorian Civil and Administrative Tribunal, 2002-03 Annual Report, September 30 2003, p34. 54 Ibid. 55 Ibid, p1. 56 Ibid, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 23 Legislation Committee TWENTY-FOURTH REPORT

VCAT List 2001-02 2002-03

Credit 77 103

Real Property 31 35

Total 89,854 87,107

3.13 The Honourable Justice Stuart Morris, President of the VCAT, advised the Committee that he believes that the breadth of the VCAT’s jurisdiction has been beneficial in a number of respects:

“First, it has added to the administrative efficiency of the tribunal by simply adding bulk and creating economies of scale. Residential tenancies, civil claims and domestic building make up about 50% of VCAT in a resource sense. Second, there are some synergies between these lists and other matters within the tribunal’s jurisdiction. Obviously these synergies are stronger in other areas, but there are advantages in members being able to sit in a number of different lists and in physical infrastructure being available to support different lists, which may have different peaking characteristics. Third, the breadth of the jurisdictions which form part of VCAT has enabled the whole structure to be led by judicial officers, which, in turn, has enhanced the status of the tribunal, as well as its independence.”57

Application Fees

3.14 Most of the commercial dispute, taxation, planning and environment, and business and occupational licensing and regulation matters dealt with by the VCAT attract an application lodgement fee of $262.90.58 Disputes under the Fair Trading Act 1999 (Vic) to a value of under $10,000 attract a fee of $31.70, whilst disputes in excess of $100,000 attract a fee of $526.80.

3.15 The most expensive matters to bring before the VCAT attract a fee of $1,053.70 and relate to:

• the Consumer Credit (Victoria) Code (s 101) and Credit Act 1984 (Vic) (ss 85, 85B and 86) where an application is made by a credit provider and the number of credit contracts exceed 3,000; and

57 Letter from the Honourable Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, July 22 2004, p1. 58 http://www.vcat.vic.gov.au/CA256DBB0022825D/page/Fees%2fForms%2fBrochures- Fees?OpenDocument&1=15-Fees%2fForms%2fBrochures~&2=10-Fees~&3=~ , (current at July 14 2004).

24 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 3: Administrative Tribunals in other Australian Jurisdictions • certain applications under the Planning and Environment Act 1987 (Vic) where the project is valued at $5,000,000 or more.

3.16 Anti-discrimination, guardianship and administration matters, and those freedom of information (FOI) applications relating to personal information about the applicant, do not attract a fee.

Timeliness

3.17 The following table provides a general guide as to the average time taken to complete various matters before the VCAT:

Table 3.2 General Guide to the Time Taken by the VCAT to Resolve Disputes59

Types of Matters Usual number of 60% of matters that 80% of matters that weeks from finished between finished between application to first 1/1/04 and 31/3/04 1/1/04 and 31/3/04 hearing or were finished within were finished within mediation held the following the following before hearing (if number of weeks number of weeks held)

Anti-Discrimination 4 (directions hearing) 18 29 List

Civil Claims List 4 (compulsory 12 18 (usually final conferences for cases hearing) over $10,000)

8 (hearing in Melbourne)

12 to 14 (hearing out of Melbourne)

Credit List 4 (repossession 4 6 application hearing)

Domestic Building 5 (directions hearing, 27 57-60 List mediation)

59 “How long does VCAT take to resolve disputes?”, Information Sheet, http://www.vcat.vic.gov.au/CA256902000FE154/Lookup/miscellaneous_pdfs/$file/time_taken_to_resolv e_disputes.pdf , (current at July 14 2004).

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 25 Legislation Committee TWENTY-FOURTH REPORT

Guardianship List 4 (hearing) 4 4 (Initial Applications)

General List - Varies because under 41-44 65-68 Transport Accident law the VCAT may Commission Matters not act for up to 26 weeks while parties are negotiating

General List - FOI 4 (directions hearing) 15 25

General List - Other 4 (directions hearing) 16 20 Matters

Land Valuation List 8 (compulsory 24 45-48 conference)

Occupation and 5 (directions hearing) 13 21 Business Regulation List

Planning & 2 (urgent cases) 20 26 Environment List 6 to 8 (mediations)

12 to 14 (hearings)

Real Property List 4 (directions hearing) 25 49-52

Residential 3 (hearing) 3 4 Tenancies List

Retail Tenancies List 5 (directions hearing) 8 14

Taxation List 8 (directions hearing) 15 24

26 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 3: Administrative Tribunals in other Australian Jurisdictions 3.18 Only about 0.1 per cent of the VCAT’s decisions are appealed (to the Supreme Court of Victoria).60

NEW SOUTH WALES

3.19 The ADT is established under the Administrative Decisions Tribunal Act 1997 (NSW). It commenced operation in October 1998.

3.20 The Administrative Decisions Tribunal Act 1997 (NSW) is quite unique amongst the various State administrative tribunals in that a significant portion of the Act deals with primary decision-making by administrators and the internal review of administrative decisions within government agencies.

3.21 As at June 30 2003, 93 separate pieces of legislation facilitated applications to the ADT.61

Structure

3.22 During the financial year 2002-03, the ADT’s membership comprised 67 judicial members (also known as “presidential” members), and 73 non-judicial members.62 Only the President, and one of the three Deputy Presidents, is employed full-time on the ADT. Non-judicial members are generally appointed to one of the six divisions of the ADT, whilst judicial members may be appointed to more than one division.63

3.23 From its meetings in Sydney, the Committee understands that, in practice, the ADT has followed the recommendations of the New South Wales Committee on the Office of the Ombudsman and the Police Integrity Commission that all ADT tribunals must be composed of at least one legally-qualified member.64 The Committee also understands that approximately half of all applications received by the ADT are dealt with by a single member tribunal.

3.24 The ADT’s staff consists of a Registrar, Deputy Registrar and nine Tribunal officers.65

3.25 The ADT had a total budget of $3,417,408 in 2002-03.66

60 The Honourable Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, VCAT Practices and Procedures: Recent Developments, (speech delivered at a seminar held on July 20 2004 at Melbourne to mark the launching of the 2nd edition of Pizer’s Annotated VCAT Act), p8. 61 Administrative Decisions Tribunal (NSW), Annual Report 2002-2003, September 10 2003, pp40-41. 62 Ibid, p9. 63 Ibid, p9. 64 New South Wales, Joint Statutory Committee on the Office of the Ombudsman and the Police Integrity Commission, Report on the Jurisdiction and Operation of the Administrative Decisions Tribunal, November 2002, at Internet site: http://www.parliament.nsw.gov.au/prod/web/phweb.nsf/frames/committees?open&tab=committees (current at September 1 2004), Recommendation 10, p55. 65 Administrative Decisions Tribunal (NSW), Annual Report 2002-2003, September 10 2003, p36.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 27 Legislation Committee TWENTY-FOURTH REPORT Jurisdiction

3.26 The ADT is made up of six divisions as follows:67

• General Division: hears applications by persons for the review of certain administrative decisions or administrative conduct. This division also has disciplinary functions with respect to a number of occupational groups;

• Community Services Division: hears applications for review of certain administrative decisions made in the Community Services, Disability Services and Ageing portfolios;

• Revenue Division: hears applications for review of various State taxation decisions;

• Equal Opportunity Division: hears complaints of unlawful discrimination referred to it by the President of the Anti-Discrimination Board;

• Retail Leases Division: hears claims by parties to retail shop leases; and

• Legal Services Division: hears complaints against legal practitioners.

3.27 The ADT has an Appeal Panel that hears both internal appeals from decisions of the various divisions (the Committee understands by leave of the Appeal Panel and generally on a question of law only)68 and external appeals from decisions of the Guardianship Tribunal and the Mental Health Review Tribunal.69

3.28 The ADT received 695 applications in 2001-02, and 766 applications in 2002-03.70 About 45 per cent of applications (344 in 2002-03) are dealt with by the General Division, and primarily involve occupational licensing decisions and freedom of information reviews.71

3.29 The Law Society of New South Wales noted that the jurisdiction of the ADT is not as broad as had been hoped for during the drafting stages of the Administrative Decisions Tribunal Act 1997 (NSW):

66 Ibid, p42. 67 Ibid, p12. 68 Administrative Decisions Tribunal Internet site: http://www.lawlink.nsw.gov.au/adt.nsf/pages/adt_11 (current at September 1 2004), p1. 69 Administrative Decisions Tribunal (NSW), Annual Report 2002-2003, September 10 2003, p12, and Administrative Decisions Tribunal Internet site: http://www.lawlink.nsw.gov.au/adt.nsf/pages/guardianship (current at September 1 2004), p1. 70 Administrative Decisions Tribunal (NSW), Annual Report 2002-2003, September 10 2003, p35. 71 Ibid, p13.

28 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 3: Administrative Tribunals in other Australian Jurisdictions “The intention of the legislature in establishing the ADT was to incorporate a large number of existing tribunals, boards and committees in the ADT. Consequential amendments legislation was also enacted. The process is still progressing to incorporate other bodies into the ADT. Resistance has been due to political and vested interest issues and this has delayed the effectiveness of the ADT to coordinate the law and promote consistency in decisions for administrative appeals. Consequently, the benefits of ongoing administrative law developments are not being applied consistently across government agencies in their decision-making processes."72

3.30 The Law Society of New South Wales also expressed the view that it is likely that the ADT will be modified in future to become a similar type of tribunal as the VCAT and the proposed SAT.73

Application Fees

3.31 Most applications to the ADT incur a fee of either $55 (if the matter can be determined by a single tribunal member) or $115 (if the relevant enabling legislation provides that the application must be dealt with by two or more tribunal members). Appeals to the ADT Appeal Panel cost $230.74

3.32 No fee is payable for applications under the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)75 or the Anti-Discrimination Act 1977 (NSW).76

Timeliness

3.33 The average time taken across the ADT for dealing with applications is six months.77 Four of the six divisions of the ADT have adopted a time standard of completing 85 per cent of applications within six months of lodgement, and that all applications be dealt with within 12 months.78

72 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p3. 73 Ibid, p4. 74 Administrative Decisions Tribunal Internet site: http://www.lawlink.nsw.gov.au/adt.nsf/pages/adt_8 (current at September 1 2004). Regulations 5A and 5B, Administrative Decisions Tribunal (General) Regulation 1998 (NSW). 75 Section 56(3), Administrative Decisions Tribunal Act 1997 (NSW). 76 Regulation 5B, Administrative Decisions Tribunal (General) Regulation 1998 (NSW). 77 Administrative Decisions Tribunal (NSW), Annual Report 2002-2003, September 10 2003, p35. 78 Ibid, p35.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 29 Legislation Committee TWENTY-FOURTH REPORT Parliamentary Inquiry into the Jurisdiction and Operation of the ADT

3.34 Section 146 of the Administrative Decisions Tribunal Act 1997 (NSW) contains a requirement that a joint parliamentary committee inquire into the jurisdiction and operation of the ADT and table a report in the New South Wales Parliament as soon as practicable after the expiration of 18 months from the establishment of the ADT.

3.35 In November 2002, the New South Wales Joint Statutory Committee on the Office of the Ombudsman and the Police Integrity Commission (Joint Statutory Committee) presented its final report on the jurisdiction and operation of the ADT to the New South Wales Parliament.79

3.36 The Joint Statutory Committee recommended the further merger of separate tribunals into the ADT, except in those circumstances where it can be demonstrated that such a merger would be inappropriate or impractical. In particular, it was felt that the ADT should take over the disciplinary role for all professions.80

User Group Satisfaction with the ADT

3.37 The Committee received generally favourable comments about the ADT from those user groups that the Committee met with in Sydney.

3.38 The Law Society of New South Wales noted that in most of the ADT’s divisions, the ADT’s process is non-legalistic and decisions are made expeditiously.81 The Law Society of New South Wales did, however express concerns about the delays and legalistic nature of proceedings in the ADT’s Legal Services Division.82

COMMONWEALTH

3.39 The AAT was established by the Administrative Appeals Tribunal Act 1975 (AAT Act). The AAT Act and the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations) set out its powers, functions and procedures.83

3.40 The AAT’s jurisdiction is contained in 395 separate Acts and Statutory Instruments, covering such areas as: 84

79 New South Wales, Joint Statutory Committee on the Office of the Ombudsman and the Police Integrity Commission, Report on the Jurisdiction and Operation of the Administrative Decisions Tribunal, November 2002, at Internet site: http://www.parliament.nsw.gov.au/prod/web/phweb.nsf/frames/committees?open&tab=committees (current at September 1 2004). 80 Ibid, Recommendation 1, p44. 81 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p3. 82 Ibid, pp2-3. 83 Administrative Appeals Tribunal, Annual Report 2002-2003, September 15 2003, p7. 84 Ibid, p8.

30 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 3: Administrative Tribunals in other Australian Jurisdictions • taxation;

• social security;

• veterans’ entitlements;

• Commonwealth employees’ compensation and superannuation;

• criminal deportation;

• civil aviation;

• customs;

• freedom of information;

• bankruptcy;

• student assistance;

• security assessments undertaken by the Australian Security Intelligence Organization;

• corporations; and

• export market development grants.

Structure

3.41 The Honourable Justice Garry Keith Downes AM, a Judge of the Federal Court of Australia, is the Acting President of the AAT.85

3.42 During the financial year 2002-03, the AAT had a total of 73 members. The AAT’s membership comprised of the President, seven Federal Court Judges, two Family Court Judges, four full-time and five part-time Deputy Presidents, ten (full-time and part-time) Senior Members and 44 (full-time and part-time) Members.86 Senior Members may be lawyers or have special expertise in other areas. Members have expertise in a variety of areas including law, medicine, accountancy and actuarial skills.87

85 http://www.aat.gov.au/AboutTheAAT/Membership.htm , (current at July 19 2004). 86 Administrative Appeals Tribunal, 2002-2003 Annual Report, September 15 2003, p10. 87 Ibid, p10.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 31 Legislation Committee TWENTY-FOURTH REPORT 3.43 As at June 30 2003, there were 129 staff employed by the AAT.88

3.44 The AAT had a total budget of $28,168,000 in 2002-03.89

Jurisdiction

3.45 The number of applications lodged at the AAT in 2001-02 and 2002-03 are set out in the table below:

Table 3.3 Applications lodged with the AAT90

Jurisdiction 2001-0291 2002-0392

Bankruptcy 20 25

Compensation 2,299 2,292

Corporations 23 16

Customs and Excise 82 63

Health and Aged Care 61 86

Higher Education Funding 27 16

Immigration and Citizenship 424 507

Income Support 1,535 1,805

Industry 40 18

Information 101 119

Primary Industries 59 198

Professional Qualifications 40 34

Security Appeals 9 4

88 Ibid, p11. 89 Ibid, p61. 90 Ibid, p106. 91 Administrative Appeals Tribunal, 2001-2002 Annual Report, September 11 2002, p100-5. 92 Administrative Appeals Tribunal, 2002-2003 Annual Report, September 15 2003, p106-111.

32 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 3: Administrative Tribunals in other Australian Jurisdictions

Jurisdiction 2001-0291 2002-0392

Taxation - Taxation Appeals 1,254 856 Division

Taxation - Small Taxation 215 149 Claims Tribunal

Transport 44 44

Veterans’ Entitlements 1,397 1,202

Other 77 242

Total 7,707 7,676

Application Fees

3.46 Most applications lodged with the AAT incur a fee of $606. If the claim is dealt with by the Small Taxation Claims Tribunal, the fee is $61.93

3.47 No fee is payable for those applications contained in Schedule 3 of the Administrative Appeals Tribunal Regulations 1976, such as those arising from decisions relating to social security and veteran’s affairs.94

Timeliness

3.48 In order to monitor the AAT’s performance in providing effective procedures for the resolution of applications, the AAT has set time standards for each step, from the receipt of an application to delivery of a decision.95

3.49 The general target is for 80 per cent of applications to be finalised within 12 months of lodgement.96 Table 3.4 sets out the details of the AAT’s performance for the major jurisdictions against those standards for 2001-02 and 2002-03.

Table 3.4

Percentage of applications to the AAT finalised within 12 months97

93 http://www.aat.gov.au/FormsAndFees/Fees.htm, (current at July 19 2004). 94 Ibid. 95 Administrative Appeals Tribunal, 2001-2002 Annual Report, September 11 2002, p16. 96 Ibid. 97 Administrative Appeals Tribunal, 2002-2003 Annual Report, September 15 2003, p19.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 33 Legislation Committee TWENTY-FOURTH REPORT

Jurisdiction Target % 2001-2002 % 2002-2003 %

Social Security 90 91 87

Compensation 75 66 64

Veterans 80 59 56

General & Veterans’ 80 71 71 Divisions

Taxation Division 75 64 7

Concerns Regarding the Legalistic Nature of the AAT

3.50 Of all the Australian administrative tribunals, the AAT has received the most criticism for its strong resemblance to a court.98

3.51 The Administrative Review Council also noted in its 1995 review of Commonwealth merits review tribunals that:

“Many submissions to the Council were critical of the role of lawyers within the tribunal review process, suggesting that the presence of lawyers, both as tribunal members but particularly as representatives of applicants and agencies, has resulted in tribunals (and particularly the AAT) operating in court-like ways that are more complex, formal, costly and inaccessible than need be the case.”99

3.52 In 1996 the Commission on Government noted the following reported concerns regarding the increasing formality and legalism in AAT proceedings:

“By the late 1980s, the AAT was being criticised because of its alleged excessive legalism, formality and insensitivity to the implication of its decisions for government policy. Pearce100 wrote of the ‘fading of the vision splendid’:

The Kerr Committee’s vision of a system of administrative review was heavily lawyer orientated and heavily rule orientated ... It was very much the sort of package that it

98 The Australian Law Reform Commission, Review of the Adversarial System of Litigation, Issues Paper 24, 1998, para 12.4-12.5. 99 Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39, 1995, p61. 100 Dennis Pearce, ‘The Fading of the Vision Splendid’, Canberra Bulletin of Public Administration, No 58, 1989, pp15-24.

34 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 3: Administrative Tribunals in other Australian Jurisdictions could be expected that a committee of lawyers would produce. (Pearce, 1989: 18).

De Maria (1991) 101 used stronger language:

Like all legal administrations it is becoming insulated, ponderous, nepotistic and legalistic. (1991: 11).

The Hon. Justice Deidre O’Connor, President of the Administrative Appeals Tribunal, writing in 1991 emphasised that the AAT was a legal institution and therein lay its strength, although she acknowledged it was more court-like than was desirable. At the public seminar in Perth, she reiterated this view:

At the risk of making unfashionably favourable comments about the involvement of lawyers in the administrative process I believe that at the level of a generalist merits review tribunal, legal training assists in speeding the process and improving the quality rather than impeding it. Legally unmeritorious claims can be screened out quickly and relevant legal submissions are more likely to be made.”102

THE COMMITTEE’S OBSERVATIONS

3.53 From the Committee’s meetings in Melbourne and Sydney, it became clear to the Committee that the ability of an administrative tribunal to achieve the aims of timeliness, informality and economy, is almost entirely dependent on the skills and vigour of the tribunal’s President. This suggests that the appointment of a suitable President will be critical in achieving the Government’s aims for the SAT.

101 William De Maria, ‘Exposing the AAT’s Private Parts’, Legal Service Bulletin, No 16(1), 1991, pp10-14. 102 Western Australia, Commission on Government, Report No. 4, July 1996, p97.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 35

CHAPTER 4 OVERVIEW OF THE BILLS

THE LEGISLATIVE SCHEME

4.1 The jurisdiction and operation of the proposed SAT is based upon not only the two bills before the House, but also a significant number of “enabling Acts”:

• the SAT Bill establishes the proposed SAT and deals with matters relating to the SAT’s powers, procedures and administration;

• the Conferral Bill amends 144 Acts and creates a large number of enabling Acts that each confer jurisdiction on the proposed SAT over a range of matters; and

• for each specific application or right of appeal to the SAT, there will be an enabling Act that grants such a right of application or appeal. In the event of inconsistency, the provisions of an enabling Act override the provisions of the SAT Bill (cl 5, SAT Bill).

THE SAT BILL

Part 1 - Preliminary Matters

4.2 The long title of the SAT Bill is:

“An Act to establish a tribunal with jurisdiction under this and other Acts to review certain administrative decisions and deal with certain other matters, and for related purposes.”

4.3 Part 1 of the SAT Bill (cll 1-6) deals with preliminary matters. Clause 4 of the SAT Bill links the definition of vexatious proceedings to that as defined in the Vexatious Proceedings Restriction Act 2002. Clause 5 provides that where there is any inconsistency between the proposed Act and an enabling Act, the enabling Act prevails over the proposed Act.

Part 2 - Establishment of the SAT

4.4 Clauses 7 to 12 of the SAT Bill deals with the establishment of the SAT.

4.5 The main objectives of the SAT, as set out in cl 9 of the SAT Bill, are:

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 37 Legislation Committee TWENTY-FOURTH REPORT “(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;

(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and

4.6 It is proposed that the SAT may sit at any place in Western Australia (cl 10) and that it may sit simultaneously as multiple, differently constituted, tribunals (cl 12).

4.7 The President of the SAT will determine the composition of the SAT for each matter by making appointments from amongst both the full-time and part-time SAT membership: cl 11(1). Ordinarily the SAT will not be constituted by more than three members when dealing with a matter, although the President has discretion to appoint up to five members if the President thinks that it is appropriate to do so in the circumstances: cl 11(2)-(3). Unless the President is satisfied that no legal issues will arise (or the SAT is dealing with certain interlocutory proceedings), the SAT must always be constituted by at least one lawyer: cl 11(4)-(6).

Part 3 - Jurisdiction of the SAT

4.8 Clauses 13 to 31 of the SAT Bill deal with the jurisdiction of the SAT.

4.9 The jurisdiction of the SAT is established by the SAT Bill and any enabling Act: cl 13. The SAT is proposed to have both an original and a review jurisdiction.103

4.10 Part 3 of the SAT Bill also deals with the requirements for decision-makers to furnish statements of reasons for decisions (cll 21-23) and for all relevant documentation to be forwarded by decision-makers to the SAT (cl 24). The Committee makes the general observation that Subdivision 2 of Division 3, Part 3 of the SAT Bill (that is, cll 20 to 24 of the SAT Bill), dealing with the obligations of primary decision-makers prior to the SAT’s involvement in reviewing a decision, is the most significant reform under the SAT Bill, and that these administrative law principles should be extended to all administrative decisions and not just those reviewable by the SAT.

103 The State Administrative Tribunal’s original jurisdiction will encompass all those matters where the Tribunal will be making the first decision or order in a matter. The Tribunal’s review jurisdiction refers to those matters where another person or body has previously made a decision or order with respect to the matter being considered by the Tribunal.

38 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 4: Overview of the Bills

4.11 Clause 27 provides that the SAT’s hearings in its review jurisdiction are to be conducted as a hearing de novo; that is, the SAT is to ‘step into the shoes’ of the original decision maker and make the decision anew based on both the material that was before the original decision-maker and any other relevant material.

4.12 Clause 28 imposes a requirement on agencies to publish in the Government Gazette certain statements of policy that it intends to rely upon in making decisions that are subject to review by the SAT.

4.13 Clause 30 requires a decision-maker to use its best endeavours to assist the SAT to make its decision on review.

4.14 Clause 31 provides that the SAT may, at any time, invite a decision-maker whose decision is under review by the SAT to reconsider its decision.

Part 4 - SAT’s Procedure

4.15 The bulk of the SAT Bill (cll 32-103) deals with the procedures of the SAT.

4.16 Clause 32 provides that, unless expressly excluded, the SAT is bound by the rules of natural justice104. Furthermore, the SAT is not bound by the rules of evidence, and is to:

“…act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.”

4.17 The SAT may inform itself on any matter as it sees fit: cl 32(4).

4.18 A Rules Committee of the SAT, comprising the President and Deputy President of the SAT and other SAT members appointed by the President, may issue practice notes concerning the practice and procedure of the SAT: cl 33.

4.19 Clauses 34 and 35 provide the SAT with the power to direct or order the production to it of documentation or other material, except where that documentation or other material is subject to a claim of legal professional privilege.

104 Natural justice is: “the right to be given a fair hearing and the opportunity to present one’s own case, the right to have a decision made by an unbiased or disinterested decision maker and the right to have that decision based on logically probative evidence”: Salemi v Mackeller (No 2) (1977) 137 CLR 396. Cited in The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p776.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 39 Legislation Committee TWENTY-FOURTH REPORT 4.20 Clause 37 provides that the Attorney General may intervene in a proceeding of the SAT at any time. An intervener is a person who seeks to intervene as a party in proceedings to protect their interests where those interests are different from those of the existing parties.105 The Committee queried whether it would be more appropriate to simply give the Attorney General standing in all matters before the SAT rather than a power of intervention in all matters. The Government advised that it had included this right to intervene, rather than merely a right of standing, based on the WACARTT report and the corresponding legislation for the VCAT, ADT and the AAT. The Government further advised that:

“The right to intervene is likely to be used by the Attorney General in limited circumstances where the overriding public interest of the State requires it.”106

4.21 The Commissioner for Fair Trading may also intervene in certain matters. The SAT may give leave at any time for any other person to intervene in proceedings before it.

4.22 Under cl 38 the SAT may order a person to be joined as a party to a proceeding.

4.23 Clause 39 grants a general right to be represented and imposes restrictions upon the types of persons, other than legal practitioners, who may represent a party before the SAT. Under cl 40 the SAT may appoint a representative for an unrepresented party or a litigation guardian for a child.

4.24 Clause 41 permits the use of interpreters, unless the SAT directs otherwise.

4.25 Clause 42 notes that proceedings must be commenced in accordance with the Act and any relevant enabling Act. Clause 42(2) provides that the SAT’s executive officer is to ensure reasonable assistance is given to any person wishing to commence a proceeding.

4.26 Under cl 43, the SAT’s rules may require the payment of a fee for the commencement of a proceeding before the SAT. The rules may also deal with matters associated with non-payment, waiver and reduction in such fees.

4.27 Clause 44 sets out the powers of the executive officer of SAT in accepting or rejecting applications to commence proceedings.

4.28 Clause 45 deals with the provision of copies of an application to commence a proceeding to relevant parties.

105 Ibid, p629. 106 Letter from Ms Judy Eckert, Barrister, Instructing Officer on the State Administrative Tribunal Legislation, June 17 2004, p1.

40 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 4: Overview of the Bills 4.29 Clauses 46 to 50 deal with the withdrawal or dismissal of proceedings for various reasons, including for frivolous or vexatious proceedings and the existence of a more appropriate forum for the matter.

4.30 Under cl 51 the SAT may consolidate or simultaneously hear and determine two or more proceedings of a similar nature.

4.31 Clauses 52 to 55 deal with the SAT’s power to direct parties to undertake compulsory conferences or mediation.

4.32 Clause 56 relates to settlement of proceedings and the SAT’s power to make orders giving effect to such settlements.

4.33 Clauses 57 to 59 deal with how decisions of the SAT are to be made, and the additional authority of presiding and legally qualified members in certain circumstances. Clause 59 provides that questions of law may be referred to the President of the SAT for determination or for further referral to the Supreme Court.

4.34 Clause 60 provides for SAT hearings to be conducted by electronic means (such as by telephone or video link), if appropriate.

4.35 Clause 61 states that unless another provision of the Act provides otherwise, the hearings of the SAT are to be held in public. The SAT may order a hearing, or any part of a hearing, to be held in private.

4.36 Clause 62 relates to the power of the SAT to order that certain material before the SAT is not to be published. Exempt documents under the Freedom of Information Act 1992 and matter protected by a certificate of the Attorney General (cl 157) are automatically protected from publication.

4.37 Clause 63 deals with the giving of notice of hearings.

4.38 Clause 64 provides that the SAT may appoint a legal practitioner or any other person with relevant knowledge or experience to assist the Tribunal either by the provision of professional services or the giving of expert evidence.

4.39 Under cl 65 the SAT may refer any question arising in a proceeding to a ‘special referee’ to either decide the matter or provide an opinion in relation to the matter.

4.40 Clauses 66 to 71 deal with witnesses, and include the SAT’s power to summons witnesses and the rights of witnesses to claim certain privileges. Clause 68 deals with the abrogation of the privilege against self-incrimination.

4.41 Clause 72 relates to the SAT’s power to deal with documents and any other thing produced to the SAT.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 41 Legislation Committee TWENTY-FOURTH REPORT 4.42 Clauses 73 to 85 deal with the SAT’s decisions. Clause 76 sets a 90-day time limit for the giving of reserved decisions. The Committee is of the view that the Government should consider extending, either through legislation or by non-statutory means, this time limit on the handing down of reserved decisions to all court and tribunal jurisdictions in the State. Clause 78 provides that a party may request that the SAT give reasons in writing for its decision if it has provided a decision without written reasons.

4.43 Clauses 86 to 88 deal with costs; the general principle being that parties bear their own costs in a proceeding of the SAT unless otherwise provided for in the Act, an enabling Act or an order of the SAT.

4.44 Clauses 89 and 90 respectively deal with the SAT’s power to grant injunctions and to make declarations concerning any matter.

4.45 Clause 91 provides the SAT with a discretion to dispense with procedural requirements in certain circumstances.

4.46 Clause 92 provides the SAT with extensive powers of entry and inspection of any place, building, vehicle, vessel or other thing.

4.47 Clause 93 refers to the transfer of documents and other material to the Supreme Court in the event of an appeal from a decision of the SAT or the referral to the Supreme Court from the SAT of a question of law.

4.48 Clauses 94 to 99 establish a series of offences, such as a failure to comply with a decision or summons of the SAT, and contempt.

4.49 Clauses 100 to 103 deal with the power of the SAT to issue a warrant for the arrest of persons who fail to attend before the SAT as required by a summons. Any subsequent detention may be reviewed by an application to the Supreme Court.

Part 5 - Appeals from the SAT

4.50 Part 5 of the SAT Bill deals with appeals from decisions of the proposed SAT.

4.51 Clause 104 provides for appeals against decisions of the SAT to the Supreme Court. The Supreme Court must grant leave to appeal from the SAT, and the appeal must, unless otherwise stated, be on a question of law only. Pursuant to cl 105, unless the

42 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 4: Overview of the Bills Supreme Court orders a stay107 on the operation of the SAT’s decision, an appeal to the Supreme Court does not affect the implementation of the SAT’s decision.

Part 6 - Membership of the SAT

4.52 Part 6 of the SAT Bill deals with matters relating to the membership of the SAT.

4.53 Clause 106 provides that the SAT is to have a President and at least one Deputy President (the “judicial members”), and other members are appointed as either senior or ordinary members.

4.54 Clauses 107 to 110 deal with the appointment of the President of the SAT, who must be a Judge of the Supreme Court.

4.55 Clauses 111 to 114 deal with the appointment of a Deputy President of the SAT, who must be a Judge of the District Court.

4.56 Clauses 115 to 125 deal with the appointment of non-judicial members of the SAT. Under cl 115, non-judicial members must be lawyers with at least five years experience or persons with “extensive or special knowledge of, or experience with” any class of matter in the SAT’s jurisdiction. Pursuant to cl 118(3), non-judicial members are prohibited from engaging in paid employment in the public sector. This restriction does not apply, however, to members who are magistrates: cl 115(5).

4.57 Clauses 126 to 131 deal with appointments as Acting President of the SAT. Clauses 132 to 135 deal with appointments as Acting Deputy President. Clauses 136 to 139 deal with the appointment of a ‘supplementary’ President or Deputy President to carry out the role for the purposes of a particular matter or matters or for a specified period.

4.58 Clause 140 relates to matters to be considered when determining the period of appointment of members (which may be for a period of up to five years).

4.59 Clause 141 deals with the ongoing training and professional development of SAT members, which is to be directed by the judicial members.

4.60 Clause 142 deals with the disclosure of possible conflicts of interest by members of the SAT.

4.61 Clause 143 allows SAT members to complete their hearing and determination of matters beyond the term of their appointment in those circumstances where such matters remain incomplete at the date of expiration of the member’s term.

107 A stay order is an: “order of a court which has the effect of suspending the operation of an earlier order, generally pending the occurrence of some specified event such as the hearing of an appeal against the original order.” Cited in: The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p1117.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 43 Legislation Committee TWENTY-FOURTH REPORT Part 7 - Administration of the SAT

4.62 Part 7 of the SAT Bill deals with the administration of the SAT and the Act generally.

4.63 Clause 144 establishes responsibility for the administration of the Act in the President of the SAT. Under cl 145 the President of the SAT is to advise the Minister responsible for the SAT (that is, the Attorney General) on possible actions to improve the effectiveness of the SAT.

4.64 Clause 146 deals with the appointment of the executive officer of the SAT and the allocation of staff to the SAT from the Department of Justice.

4.65 Under cl 147 judicial members of the SAT may delegate a power or duty of an administrative nature.

4.66 An annual report on the operations of the SAT is required to be prepared and tabled in Parliament each year pursuant to cll 148 and 149.

Part 8 - Other Matters

4.67 Part 8 of the SAT Bill deals with a wide variety of matters, such as:

• the official seal/s of the SAT (cl 150);

• judicial notice of the SAT (cl 151);

• the validity of decisions made by the SAT notwithstanding certain irregularities in procedure or administration (cl 152);

• the maintaining of a register of proceedings of the SAT (cl 153);

• publication of the SAT’s decisions (cl 154);

• the disclosure of secrets by the SAT members or staff (cll 155 to 156);

• public interest disclosures (cl 157);

• how the SAT is to deal with protected matter (cl 158);

• the application of the Freedom of Information Act 1992 (cl 159);

• the immunity of SAT members (to be the same as the protection and immunity of a Judge of the Supreme Court), and other persons involved in SAT proceedings (cl 160);

44 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 4: Overview of the Bills • the protection from liability of SAT members and staff (and the Crown generally) for the bona fide actions of the SAT (cl 161);

• the protection of persons from civil or criminal liability for actions done bona fide pursuant to a requirement of the Act, such as for the production to the SAT of confidential documentation (cl 162);

• protection against defamation proceedings for the publication of the SAT’s proceedings (cl 163);

• transfer of jurisdiction to the SAT from another body (cl 164); and

• regulations and rules for the SAT (cll 165 to 167).

Part 9 - Minor Amendments to other Acts

4.68 Part 9 of the SAT Bill deals with minor amendments to the following Acts:

• Constitution Acts Amendment Act 1899;

• Interpretation Act 1984;

• Legal Representation of Infants Act 1977; and

• Parliamentary Commissioner Act 1971.

THE CONFERRAL BILL

4.69 Due to the size of the Conferral Bill and the wide range of matters it deals with, the Committee did not examine the Conferral Bill in detail.

4.70 The Committee was advised by the Government of the following purpose of the Conferral Bill:

“The Conferral Bill merely transfers existing review rights and original jurisdictions to SAT. In most cases the Bill does not create or develop new rights or obligations or fundamentally change things (other than to simplify procedure): rather it consolidates an array of existing rights. The Conferral Bill therefore transfers existing rights set out in a large number of Acts in to a more accessible, flexible, transparent and uniform structure.”108

108 Notes for Legislation Committee of the Legislative Council - SAT, February 26 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 45 Legislation Committee TWENTY-FOURTH REPORT 4.71 The Conferral Bill seeks to amend a large number of existing Acts in order to establish those Acts as enabling Acts for the purposes of the SAT Bill. Enabling Acts create matters that fall within the jurisdiction of the SAT.

4.72 The Conferral Bill proposes:109

• The amendment of 144 Acts.

• The abolition of the following 17 current boards and tribunals:110

1. Biological Control Appeal Board;

2. Commercial Tribunal;

3. Compensation Courts (under the Land Administration Act 1997);

4. Equal Opportunity Tribunal;

5. Firearms Appeals Tribunal;

6. Fisheries Adjustment Compensation Tribunal;

7. Fisheries Objections Tribunal;

8. GAB;

9. Land Valuation Tribunal;

10. Legal Practitioners Disciplinary Tribunal;

11. Mental Health Review Board (MHRB);

12. Racing Penalties Appeals Tribunal;

13. Retirement Villages Disputes Tribunal;

14. Strata Titles Referee;

15. Town Planning Appeals Tribunal;

16. Water Resources Appeals Tribunal; and

17. Western Australia Certificates of Competency Appeal Authority (Marine Appeals).

109 Department of Justice, State Administrative Tribunal, Briefing Paper, provided to the Committee on March 8 2004, p2.

46 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 4: Overview of the Bills • Modification to 40 existing boards and tribunals, including the following:

1. Agriculture Protection Board;

2. Architects’ Board;

3. Builders’ Registration Board;

4. Chiropractors’ Registration Board;

5. Dental Board;

6. Electrical Licensing Board;

7. Finance Brokers Supervisory Board;

8. Gender Reassignment Board;

9. Government Employees Superannuation Board;

10. Hairdressers’ Registration Board;

11. Land Surveyors Licensing Board;

12. Land Valuers Licensing Board;

13. Legal Practice Board;

14. Medical Board;

15. Metropolitan Cemeteries Board;

16. Motor Vehicle Dealers Licensing Board;

17. Nurses Board;

18. Occupational Therapists Registration Board;

19. Optometrists Registration Board;

20. Osteopaths Registration Board;

21. Painters’ Registration Board;

22. Pharmaceutical Council;

110 Ibid, p3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 47 Legislation Committee TWENTY-FOURTH REPORT 23. Physiotherapists Registration Board;

24. Plumbers Licensing Board;

25. Podiatrists Registration Board;

26. Psychologists Board of Western Australia;

27. Real Estate and Business Agents Supervisory Board;

28. Settlement Agents Supervisory Board;

29. Veterinary Surgeons’ Board;

30. Water Board; and

31. Western Australian Egg Marketing Board.

4.73 The Committee notes that some occupations that are presently regulated by courts or tribunals111 will, under the proposed Conferral Bill, be regulated at first instance by the Commissioner for Fair Trading (a public sector administrator), with a subsequent right of appeal to the SAT. The Government advised the Committee that this apparently fundamental change in the way debt collectors, in particular, are licensed has been proposed as it is considered “inappropriate” for the Local Court to be the actual licensing body.112

4.74 The Committee, however, notes that auctioneers are currently licensed by the Court of Petty Sessions under the Auction Sales Act 1973, and that liquor licensees are licensed by the Liquor Licensing Court under the Liquor Licensing Act 1988. Neither auctioneers nor liquor licensees are to be affected by the proposed SAT. When the Committee queried the omission of the regulation of auctioneers and liquor licensees from the jurisdiction of the proposed SAT, the Government advised as follows:

“Debt collectors and auctioneers are the only occupations which are currently licensed by courts that were considered as part of the proposal to establish SAT. A distinction was drawn regarding occupational licensing, such as for lawyers, doctors, settlement agents and travel agents and other licensing areas such as under fisheries, taxi, aerial spraying and liquor licensing legislation, which are not strictly ‘vocational’. …

111 Such as debt collectors via the Local Court, and credit providers, employment agents and travel agents via the Commercial Tribunal. 112 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, p2.

48 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 4: Overview of the Bills With respect to auctioneers, Cabinet resolved that the issue of application for auctioneers’ licences should be dealt with by a separate submission to Cabinet. I understand that the relevant department is looking at this, but I have no direct knowledge of it. It should be noted that the [WACARTT] Report made no recommendation as to auctioneers.

The [WACARTT] Report, at page 125 [198] adopts the recommendations of the WA Law Reform Commission Review into the Criminal and Civil Justice System and the Gotjamanas Report, that it is inappropriate, on the grounds of the subject matter and the policy areas involved, for the jurisdiction of the Licensing Court to be transferred to SAT. The Committee should note that for the purposes of the SAT Bill and the Conferral Bill, liquor licensing is not a vocational/occupational matter.”113

4.75 As noted earlier in the report, a significant proportion of the VCAT’s caseload involves residential tenancies matters (76 per cent of the VCAT’s caseload in 2002- 03).114 The VCAT also deals with a large number of civil contractual disputes. The proposed SAT, however, will not have jurisdiction over many of the smaller scale civil disputes that are currently dealt with by the Local Court. The Committee understands that this approach was taken, in large part, due to the logistical problems posed by the size of Western Australia. As the Chief Magistrate advised the Committee:

“The difficulties that would face SAT endeavouring to service the whole of the State on a regular basis during its formative years was appreciated by the [WACARTT] Report… . This, as I understand it, is the reason that jurisdiction under the Residential Tenancies Act, Small Claims Tribunal Act and Minor Disputes under the Local Court Act are all to remain within the jurisdiction of the Magistrates Court. Whilst it was logical to move these matters to SAT on the basis that their removal from Courts would encourage and support the use of alternative procedures and less legalistic approaches the geography of this State remained the barrier. It was suggested that these matters be revisited [at] some future time.

In my view, the opportunity to explore the greater use of technology in order to provide services to rural and remote areas was not fully explored. I appreciate however that to have dealt with these problems at the same time as attempting to establish the Tribunal

113 Ibid, p3. 114 Victorian Civil and Administrative Tribunal, 2002-03 Annual Report, September 30 2003, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 49 Legislation Committee TWENTY-FOURTH REPORT would have been too great a burden. This would be particularly so given that there would have been a requirement for some capital expenditure to ensure that a network of video facilities was established across the State.”115

115 Letter from Mr Steven Heath, Chief Magistrate, August 27 2004, pp1-2.

50 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 5 PROPOSED GOVERNMENT AMENDMENTS TO THE BILLS

5.1 The Government has proposed a significant number of amendments to both the SAT Bill and the Conferral Bill. These proposed amendments have taken the form of both amendments on the respective supplementary notice papers, as well as additional drafted amendments.

5.2 The Government has provided the Committee with a set of amendments for each of the two bills incorporating all of the Government’s proposed amendments as at October 14 2004 (including those from Supplementary Notice Paper No 213, Issue No 1, September 10 2003 for the SAT Bill, and Supplementary Notice Paper No 214, Issue No 5, November 17 2003 for the Conferral Bill). The Government’s proposed amendments are at Appendix 5 (with respect to the SAT Bill) and Appendix 6 (with respect to the Conferral Bill) of this report.

5.3 The Committee notes that some of the Government’s proposed amendments are in response to evidence given during public hearings held as part of this inquiry.

PROPOSED GOVERNMENT AMENDMENTS TO THE SAT BILL

5.4 Attached at Appendix 5 are the Government’s drafted amendments to the SAT Bill, dated October 19 2004.116 Amendments are proposed to the following clauses of the SAT Bill:

Clause 3

5.5 The proposed amendments to cl 3 of the SAT Bill seek to alter the definition of “exempt document” in the Bill and introduce a definition for “exempt matter”.

5.6 Proposed amendments to cll 3, 34, 39, 52 and 63 of the SAT Bill are designed to extend the provisions of cl 60 of the SAT Bill (regarding the use of electronic hearings and conducting proceedings on the papers alone) to mediations and compulsory conferences.117 The proposed amendment to cl 3 specifically introduces a definition for the word “hearing” that states that it is to include a compulsory conference or mediation.

116 Parliamentary Counsel’s Office, State Administrative Tribunal Bill 2003 Draft amendments, Draft No 9 (AIC 5-09), October 19 2004. 117 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, Attachment 2, State Administrative Tribunal Bill 2003 - Draft Amendments, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 51 Legislation Committee TWENTY-FOURTH REPORT 5.7 Clause 3 is further proposed to be amended by amending the definition of “vocational regulatory body” so as to provide that such a body is established by an enabling Act which has been prescribed by regulations as a “vocational Act”.

Clause 11

5.8 Clause 11(4)(b) deals with the special membership requirements of the SAT when exercising its vocational regulation jurisdiction.

5.9 The proposed amendment to cl 11 of the SAT Bill seeks to broaden the range of matters that the President of the SAT must take into account when selecting members of the SAT to deal with a particular matter (that is, the President must take into account any relevant provision of the SAT Bill or another written law).

5.10 This clause currently only refers to matters appealed to SAT from a decision of a vocational regulatory body or a matter brought to the SAT by a vocational regulatory body. This provision is proposed to be amended so that it is widened to also include those vocational regulatory matters commenced in the SAT by a licensee or a director of a corporate licensee without reference to a vocational regulatory body. For example, applications to SAT to cancel a suspension imposed by SAT or to restore a name to the register where it has been removed by order of the SAT (s 13(2), Builders’ Registration Act 1939).118 It is proposed that “any other person under a vocational Act” may bring a matter before the SAT.

5.11 Clause 11 is also proposed to be amended to include a reference to a proposed new s115(5a) as one of the matters that the President of the SAT is to have regard to when constituting SAT to deal with a particular matter.

Clause 32

5.12 Clause 32 (5) provides that the SAT may determine its “practice and procedure” to the extent it is not already prescribed. The Government proposes to amend this provision to read “practice or procedure”.

Clause 34

5.13 Clause 34 deals with directions from the SAT.

5.14 One of the proposed amendments to cl 34 combines and simplifies subclauses (3) and (6) of cl 34.

5.15 Clause 34(4) is proposed to be amended to take account of the proposed expanded definition of “hearing” by amendments to cl 3. A directions hearing may be held before a compulsory conference or mediation.

52 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills 5.16 Proposed amendments to cll 3, 34, 39, 52 and 63 of the SAT Bill are designed to extend the provisions of cl 60 of the SAT Bill to mediations and compulsory conferences.119

5.17 It is also proposed that cl 34(7) be amended so that it is clear that it is the SAT itself that decides whether a document is or contains protected matter.

Clause 35

5.18 Clause 35 of the SAT Bill deals with the obtaining of information from third parties. It is proposed that cl 35(3) be amended so that it is clear that it is the SAT itself that decides whether a document is or contains protected matter.

Clause 36

5.19 Clause 36 defines the parties to proceedings before the SAT. The current definition is proposed to be amended to include a wider range of respondents affected by matters in the SAT’s original and vocational jurisdictions.120

Clause 37

5.20 The Government proposes to amend the reference to “Commissioner for Fair Trading” to simply read “Commissioner”.

Clause 39

5.21 Clause 39 deals with the representation of parties in proceedings before the SAT.

5.22 Clause 39 is proposed to be amended to take into account the new definition of “hearing” that is proposed to be inserted into cl 3, thereby simplifying the wording in cl 39(1).

5.23 Proposed amendments to cll 3, 34, 39, 52 and 63 of the SAT Bill are designed to extend the provisions of cl 60 of the SAT Bill to mediations and compulsory conferences.121

118 Ibid, Attachment 2, p1. 119 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, Attachment 2, State Administrative Tribunal Bill 2003 - Draft Amendments, p2. 120 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, Attachment 2, p1. 121 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, Attachment 2, State Administrative Tribunal Bill 2003 - Draft Amendments, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 53 Legislation Committee TWENTY-FOURTH REPORT 5.24 It is proposed that cl 39(3) be amended to extend the prohibition against representation by lawyers who have been struck off the roll of legal practitioners of the Supreme Court to include also those lawyers who have been suspended from practice as a legal practitioner.

Clause 43

5.25 Clause 43 provides that the SAT’s rules may require the payment of a fee to commence a proceeding. The proposed amendment seeks to provide that such fees may also be imposed by way of regulations as well as rules. Clause 43(2), dealing with the waiver or reduction of such a fee, is proposed to be deleted (although it is proposed to be effectively reinstated in proposed New Clause 166A).

Clause 44

5.26 Clause 44 deals with, amongst other things, the rejection of applications lodged with the SAT. A proposed amendment to cl 44(1)(b) will provide that time limits for the lodgement of applications may be provided for in either the SAT’s rules or an enabling Act.

5.27 A second proposed amendment will provide that the SAT’s rules may prescribe to whom, and provide for the manner in which, notice of the acceptance or rejection of an application is to be given.

Clause 45

5.28 Clause 45 of the SAT Bill imposes a requirement upon an applicant to the SAT to provide copies of the application to other parties and specified persons. Clause 63 of the SAT Bill provides that SAT’s executive officer is to give notice of the hearing to the same range of people. The Government proposes to amend cl 45 of the SAT Bill in light of the following problems identified in certain jurisdictions with its requirements:

“We [The Government] need to include a provision whereby rules can either allow the executive officer to serve the application where the applicant is unable to, or to exempt applicants under a particular enabling Act, or a class of applicants, from the requirements of [cl 45(1)] where it is not appropriate or necessary for the applicant or the referring person (or the executive officer) to serve the application. Neither subclause (3) nor (6) is adequate for these purposes. The problem occurs in 4 main areas:

(a) Mental health: it might be very difficult (perhaps impossible and unnecessary) for an involuntary patient to serve the order on everyone. In this

54 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills situation the executive officer could serve it on their behalf. Under the Mental Health Act the psychiatrist who makes the detention/cto order must serve a copy of the order on the patient. The copy order is to be treated as an application to SAT for scheduled review by the psychiatrist who makes the initial order and on subsequent reviews by the treating psychiatrist. Absent an exception in the rules, the relevant psychiatrist would arguably have to re serve the relevant order the subject of review on the patient;

(b) Guardianship and administration: it might be very difficult for a person the subject of an administration/guardianship order to serve the application. In this situation the executive officer could serve it on their behalf;

(d) commercial tenancy matters: apparently there are literally thousands of very quick applications to the current Commercial Tribunal Registrar to approve the inclusion of particular clauses in leases, as required under the Act or the lease documentation. Usually both parties know about the application and consent to it. The application is then dealt with, speedily, on the papers. There should be no need for anyone to serve anyone else in those circumstances, when the executive officer or the presiding member is satisfied that all relevant people are aware of and consent to the application.”122

5.29 A proposed amendment to cl 45(7) provides that, where an application has been brought before the SAT by a person other than the applicant, the applicant is to be given a copy of the application in accordance with the rules so that the applicant may comply with the service requirements of cl 45(1).

122 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Proposed Amendment to Clause 45 of the State Administrative Tribunal Bill 2003, August 24 2004, pp1-2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 55 Legislation Committee TWENTY-FOURTH REPORT Clause 48

5.30 Clause 48 of the SAT Bill is proposed to be amended to take into account the new definition of “hearing” that is proposed to be inserted into cl 3, thereby simplifying the wording in cl 48(1)(f).

5.31 Clause 48 is also proposed to be amended to provide that any party, rather than just the applicant (or the SAT acting on its own initiative), may apply for relief from the SAT under the provisions relating to the “conduct of proceeding causing disadvantage”.

Clause 52

5.32 Clause 52 of the SAT Bill is proposed to be amended to take into account the new definition of “hearing” that is proposed to be inserted into cl 3.

5.33 Proposed amendments to cll 3, 34, 39, 52 and 63 of the SAT Bill are designed to extend the provisions of cl 60 of the SAT Bill to mediations and compulsory conferences.123

Clause 54

5.34 Clause 54 of the SAT Bill relates to mediation. Under cl 54 either a directions hearing or compulsory conference must have been held before the SAT may refer a matter to mediation. The Government proposes to amend cl 54 to enable a matter to be referred to mediation either at the initial directions hearing or at any later stage of a proceeding.

Clause 58

5.35 Clause 58 of the SAT Bill contains a computer printing error that needs to be corrected by a clerical amendment. The clause should contain a reference to cl 59 of the SAT Bill.

Clause 60

5.36 Clause 60 of the SAT Bill deals with electronic hearings and the conduct of proceedings on the documentation alone. Proposed amendments to cll 3, 34, 39, 52 and 63 of the SAT Bill are designed to extend the provisions of cl 60 of the SAT Bill to mediations and compulsory conferences.124

123 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, Attachment 2, State Administrative Tribunal Bill 2003 - Draft Amendments, p2. 124 Ibid, p2.

56 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills Clause 61

5.37 Clause 61 of the SAT Bill provides that all hearings of the SAT are to be held in public unless the SAT orders they be held in private. The Government seeks to amend cl 61(2) to provide that the SAT may specify which persons may attend a hearing, or part of a hearing, that the SAT has ordered to be held in private.

5.38 The Government also proposes to add “to avoid endangering property” to the list of circumstances in which the SAT may order that a hearing, or part of a hearing, is to be held in private.125

Clause 63

5.39 As noted above, Clause 52 of the SAT Bill is proposed to be amended to take into account the new definition of “hearing” that is proposed to be inserted into cl 3. Proposed amendments to cll 3, 34, 39, 52 and 63 of the SAT Bill are designed to extend the provisions of cl 60 of the SAT Bill to mediations and compulsory conferences.126

Clause 66

5.40 Clause 66 of the SAT Bill relates to the summoning of witnesses and documents. The Government proposes to amend cl 66 by an amendment “to allow [for a] person who produces documents (and not just attends and produces under clause 66)”.127

Clause 75

5.41 Clause 75 of the SAT Bill sets out the persons who are to be provided with a copy of the SAT’s written decisions. It is proposed that this clause be amended to also provide that written decisions are to be provided to “any person prescribed by the rules”.

New Clause 79A

5.42 The Government proposes to amend the SAT Bill to include a new cl 79A, which seeks to impose an obligation on the SAT to have regard to the confidentiality of evidence received during a private hearing (under cl 61) or protected matter (cl 158) when providing its reasons for decision.

125 Ibid, p1. 126 Ibid, p2. 127 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 57 Legislation Committee TWENTY-FOURTH REPORT Clause 83

5.43 Clause 83 relates to the SAT reviewing its decision from a hearing at which a relevant person was absent. The Government proposes to amend this clause to limit the definition of “relevant hearing” in that clause so as to exclude a compulsory conference or mediation. This amendment is necessitated by the new definition of “hearing” that is proposed to be inserted in cl 3.

Clause 91

5.44 Clause 91 of the SAT Bill states that the SAT’s rules may provide that the SAT may grant relief from certain procedural provisions in proceedings before the SAT. The Government proposes to extend the application of this clause to also include procedural requirement associated with the commencement of proceedings.

5.45 Clause 91 is proposed to be reworded so as to include an express reference to the provisions of cl 5 of the SAT Bill (that is, the clause that states that the express provisions of an enabling Act prevail over the provisions of the SAT Bill in the event of inconsistency).

Clause 93

5.46 Clause 93 relates to the provision of documents and things to the Supreme Court. It is proposed to amend this clause to make it clear that the Supreme Court will determine whether a document is protected matter or an exempt document that should not be disclosed.

Clause 99

5.47 Clause 99 of the SAT Bill is the contempt provision. Clause 99(2) provides that a person dealt with by the Supreme Court for a contempt offence against the SAT cannot then be subjected to the other offence provisions in the SAT Bill by the SAT for the same conduct.

5.48 In response to a query from the Committee as to whether this prohibition also worked the other way; that is, could a person be dealt with by the Supreme Court for a contempt offence under cl 99 after having been dealt with by the SAT under the other offence provisions contained in the SAT Bill for the same conduct,128 the Government proposes the following amendment to prohibit action being taken under more than one provision for the same conduct:

“99. Contempt

128 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p11.

58 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills (1) If the President is satisfied that an act or omission of a person would constitute a contempt of the Court if a proceeding of the Tribunal were a proceeding in the Supreme Court, the President may report that act or omission to the Supreme Court and the Court has jurisdiction to deal with the matter as if it were a contempt of the Court.

(2) If —

(a) subsection (1) applies to an act or omission by a person and that act or omission is also an offence under this Act; and

(b) the person has been dealt with under subsection (1) for the act or omission,

the person is not liable to be punished for the offence under this Act twice.”

Clause 104

5.49 Clause 104(2) of the SAT Bill provides that appeals may be made from a decision of the SAT to the Supreme Court on a question of law “unless it is otherwise expressly stated”. The Government has advised the Committee that to avoid confusion with cl 5 of the SAT Bill (that is, the provisions of an enabling Act prevail over the provisions of the SAT Bill), the words “unless it is otherwise expressly stated” are proposed to be deleted.129

5.50 A further proposed amendment is to delete a reference in cl 104 to cl 77 (SAT to provide reasons for a final decision) and replace it with a reference to the more appropriate cl 78 (request for reasons for decision to be in writing).

Clause 155

5.51 Clause 155 of the SAT Bill is the secrecy provision applying to SAT staff and other persons acting under the authority of the SAT. The Government’s proposed amendment to cl 155 seeks to delete cl 155(6), a subsection which expressly exempts from the operation of the clause the recording or disclosure of either:

a) anything said or done in a public hearing of SAT; or

b) a decision or reasons for decision of the SAT.

5.52 The Government’s reason for this proposed amendment is as follows:

129 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 59 Legislation Committee TWENTY-FOURTH REPORT “This clause, as it is currently drafted, reflects section 34(6) of [the Victorian Civil and Administrative Tribunal Act 1998]. We have deleted clause 155(6) because it doesn't really make sense, has the opposite effect of what is intended and the issues it intends to protect are adequately covered in clause 62. The unintended consequence is that the effect of the bracketed part is that no one would be able to record or disclose an in camera hearing. This would make life very difficult and can't have been intended. It is repetitive and confusing.”130

Clause 158

5.53 Clause 158 of the SAT Bill deals with how the SAT is to treat protected matter or exempt documents under the Freedom of Information Act 1992. The Government’s proposed amendments seek to make it clear that it is the SAT itself which is to determine whether a matter is aprotected matter or a document is an exempt document.

New Clause 159A

5.54 In response to a query from the Committee (see paragraph 8.47) as to why parliamentary privilege was not an express ground upon which a third party could decline to produce documents to the SAT under cl 35(2)131 of the SAT Bill (despite legal professional privilege being such an express ground), the Government advised that an amendment would be prepared to exclude documents and other material which are the subject of parliamentary privilege.132 The Government therefore proposes the following new clause for the SAT Bill:

“159A. Parliamentary privilege not affected

Nothing in this Act limits or otherwise affects the operation of the Parliamentary Privileges Act 1891.”

Clause 164

5.55 Clause 164 of the SAT Bill deals with certain transitional matters associated with the transfer of jurisdiction to the SAT.

130 Email from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, October 12 2004, p1. 131 The same issue arises with respect to the issuing of a summons under cl 66(4) of the State Administrative Tribunal Bill 2003. 132 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p1.

60 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills 5.56 The Government has advised the Committee that it proposes to amend cl 164 to give effect to the following transitional matters:

“(a) Matters commenced and currently with a court: these matters should remain with the court until completed. This will include matter already with “compensation courts” under the Land Administration Act, however constituted. Appeal rights under Enabling Acts should continue until exhausted. SAT cannot call in and SAT legislation will not apply;

(b) Matters commenced and currently with a body which will cease to exist on the commencement of SAT: these matters will transfer in to SAT on commencement. The bodies will continue to exist only for the administrative function of transferring the matters. The bodies must transfer all files etc to SAT;

(c) Matters commenced and currently with a body which will continue: these are matters to which the current clause 164 applies. The body may continue dealing with them for 6 months unless the President calls them in, or the body transfers them;

(d) Once a matter is in SAT the SAT legislation applies: However, the regulation making power should include provision for rules or regulations to provide otherwise. This would require a rule/regulation related to a specific Enabling Act such as nurses where the rules of evidence currently apply.

(e) Transitional arrangements re membership: This would allow the President to constitute a tribunal to hear a part heard matter with sitting members who were sitting members of the board which part heard the matter prior to it being transferred to SAT;

(f) Appeal rights: where a matter is part heard and the body finalises it within the requisite time, parties retain their appeal rights that existed at the commencement of SAT. Where a matter is completed at the time of the commencement of SAT, a party would retain their appeal rights under the Enabling Act (e.g. a board makes a decision 14 days before the commencement of SAT. The Enabling Act provides that parties have 30 days to request written reasons for the decision and they have a right of appeal to the District Court which must be exercised within 30 days after the decision. The parties would retain the 30 day right to request written reasons and the following 30 days to appeal to the District Court. Applications for extension of that time frame would remain as specified in the Enabling Act.).

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 61 Legislation Committee TWENTY-FOURTH REPORT (g) Annual reports: All bodies that will be completely absorbed by SAT and who currently have an obligation to prepare an annual report (whether under their enabling Act or the FAAA) will be required to provide an annual report from the date of their last report until the date of commencement of SAT/their abolition setting out all the matters they are currently required to set out in their annual report.”133

5.57 Clause 164 is proposed to be amended to provide that regulations or rules may prescribe any matter that is necessary or convenient to be prescribed in relation to certain transitional matters.

5.58 The Committee notes that it is proposed that a provision be made in cl 164 that a person who was a former adjudicator on a matter that is transferred to the proposed SAT may be appointed by the President of the SAT to continue hearing that particular matter as if they were a non-judicial member of the SAT.

Clause 166

5.59 Clause 166 of the SAT Bill deals with the SAT’s rules. The Government proposes to amend cl 166 by adding an additional subsection which will require rules to be laid before each House of Parliament within six sitting days following the publication of the rules in the Government Gazette.

New Clause 166A

5.60 Proposed new clause 166A seeks to provide that the SAT’s regulations or rules may require the payment of fees relating to proceedings and hearings. It is proposed that different fees may be imposed for different types of proceedings and hearings, and that the regulations or rules may authorise the waiver or reduction of a fee.

Recommendation 3: The Committee recommends that the State Administrative Tribunal Bill 2003 be amended by the Government’s proposed amendments as set out in Appendix 5 of this report.

PROPOSED GOVERNMENT AMENDMENTS TO THE CONFERRAL BILL

5.61 Attached at Appendix 6 are the Government’s proposed amendments to the Conferral Bill, dated October 19 2004.134 These proposed amendments also incorporate all but one of the amendments set out in Supplementary Notice Paper No 214, Issue No 5,

133 Ibid, Attachment 2, pp2-3. 134 Parliamentary Council’s Office, Proposed Government amendments to the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003, October 19 2004 (AIC 14-06). 62 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills November 17 2003 (being proposed amendment 10/NC692, which the Committee understands has been replaced by a proposed new cl 695).

5.62 Due to the large number of these proposed amendments and the large number of enabling Acts affected by them, the Committee has not examined these proposed amendments in any detail in this report. Many of the amendments correct drafting errors or seek to apply consistency in procedures within the enabling Acts. The Government’s explanation for many of these proposed amendments is at Appendix 7.135

5.63 The following enabling Acts are subject to the Government’s proposed amendments to the specified clauses of the Conferral Bill:

• Adoption Act 1994 (new clause);

• Aerial Spraying Control Act 1966 (cl 15);

• Chicken Meat Industry Act 1977 (cl 111);

• Consumer Affairs Act 1971 (cl 144);

• Dangerous Goods Safety Act 2004 (cl 215 - to reflect the passing of that Act by the Parliament in 2004);

• Energy Coordination Act 1994 (cll 298-299, and new cl 300);

• Guardianship and Administration Act 1990 (cl 426);

• Health Act 1911;

• Health Services (Conciliation and Review) Act 1995 (cl 490);

• Land Valuers Licensing Act 1978;

• Local Government {Miscellaneous Provisions) Act 1960 (cl 688 and new clauses). These proposed amendments seek to transfer the functions of referees under Division 19 of Part XV of the Local Government {Miscellaneous Provisions) Act 1960 to the SAT.136

• Local Government Act 1995 (cll 701 and 714);

135 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Outline of Proposed Amendments to SAT Conferral Bill and Enabling Acts, August 24 2004. 136 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, September 28 2004, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 63 Legislation Committee TWENTY-FOURTH REPORT • Medical Act 1894;

• Motor Vehicle Dealers Act 1973;

• Nurses Act 1992;

• Optometrists Act 1940;

• Psychologists Registration Act 1976;

• Road Traffic Act 1974 (cll 1137 and 1141);

• Security and Related Activities (Control) Act 1996 (cll 1149 and 1155);

• Soil and Land Conservation Act 1945 (cl 1178);

• Strata Titles Act 1985 (cll 1190, 1199-1200, 1204, 1238, and new cl 1198);

• Taxation Administration Act 2003 (cll 1247-1251, 1258-1259, 1265, and new cl 1252);

• Taxi Act 1994 (cl 1270);

• Town Planning and Development Act 1928 (cl 1284);

• Travel Agents Act 1985 (cl 1325); and

• Water Services Licensing Act 1995 (cl 1379).

5.64 Amendments to cl 1409 and new cl 1411 are also proposed to be inserted by the Government into the transitional provisions of the Conferral Bill to enable the Governor to make regulations dealing with any transitional matter that is not sufficiently dealt with in the Conferral Bill. Specifically, the proposed new cl 1411 states that regulations may provide that specific provisions of any written law:

a) do not apply to or in relation to any matter; or

b) apply with specific modifications to or in relation to any matter.

5.65 This proposed amendment seeks to establish a “Henry VIII” clause whereby a section of an Act may be amended by way of regulations. One of the appendices to a 2002 report of the Standing Committee on Public Administration and Finance in relation to the Planning Appeals Amendment Bill 2001 was an internal memorandum of advice of the Joint Standing Committee on Delegated Legislation which relevantly noted the following on the subject of Henry VIII clauses:

64 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills ““Henry VIII clause” is a generic term for a section in an Act of Parliament that enables the Act or another Act to be amended by subordinate legislation made by the Executive. It is the power given to the Executive to override the intention of Parliament expressed in an Act that causes consternation over the use of Henry VIII clauses.

The objection to such clauses is that by delegating to the Executive the power to amend Acts of Parliament, they have insufficient regard to the principle of separation of powers and ultimately the institution of Parliament in its role as supreme legislature. Henry VIII clauses in all but limited circumstances erode the sovereign function of Parliament to legislate.

The Donoughmore Committee on Ministers’ Powers recommended in 1932 that the use of Henry VIII clauses should be discontinued in all but the most exceptional cases and then only for the purpose of bringing an Act into operation with a finite life of one year after the passing of the Act. The Donoughmore Committee based its findings on the potential for abuse such a provision allowed rather than on actual evidence of abuse of the power.

In relation to Henry VIII clauses, Professor Dennis Pearce in his authoritative text on Delegated Legislation in Australia and New Zealand states:-

“This is an approach to legislating that should be resisted. Parliamentarians pay too little heed to the regulation-making sections of Acts. If “Henry VIII” clauses are allowed to pass by default, the parliamentary institution is placed in jeopardy.”

The Delegated Legislation Committee is relatively powerless in its opposition to the use of Henry VIII clauses because they appear in principal legislation, and only have effect via subordinate legislation. In scrutinising regulations made under Henry VIII powers the Committee is attempting to “shut the gate after the horse has bolted.” This referral enables it to consider Henry VIII clauses at their origin – in primary legislation and once again make comment on the use of these clauses which in most cases undermine the role of Parliament as legislature.

The [Delegated Legislation] Committee is of the view that Henry VIII clauses should not be used as “insurance” against unforseen consequences or as a substitute for careful drafting or for mere

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 65 Legislation Committee TWENTY-FOURTH REPORT administrative convenience. As the Queensland Scrutiny of Legislation Committee commented in its 1997 report on Henry VIII clauses:

“‘Henry VIII’ clauses should not be inserted into hastily drafted legislation to be introduced in a restrictive timetable as a substitute for careful well developed drafting.”

…

The [Delegated Legislation] Committee has previously stated:

“A common reason given for use of the “Henry VIII” clause is the shorter length of time taken to promulgate delegated legislation compared to the parliamentary procedure required to amend an Act. There are longstanding and traditional reasons why the procedures for enactment of legislation is structured in the way that it is, not least of which is the fact that the monarch after whom the circumvention of this process has been named “is regarded popularly as the impersonation of executive autocracy”.

The [Delegated Legislation] Committee remains of the view that Henry VIII clauses should only be used in limited circumstances such as proclaiming an Act, amending a State Agreement Act, to assist with reprinting or consolidation of Acts or matters of a purely administrative nature.”137

5.66 The Committee also commented on the undesirability of Henry VIII clauses in its Twenty-First Report, in relation to the Corruption and Crime Commission Act 2003 and the Corruption and Crime Commission Amendment Bill 2003.138 The Committee also notes the recent discussion of this matter (and the list of recent Legislative Council committee reports dealing with these issues) in the Seventeenth Report of the Uniform Legislation and General Purposes Committee.139

137 Internal memorandum of Advice of the Joint Standing Committee on Delegated Legislation, dated November 21 2001, Appendix 4, pp49-60, Report of the Standing Committee on Public Administration and Finance in relation to the Planning Appeals Amendment Bill 2001, Legislative Council Standing Committee on Public Administration and Finance, Report 1, March 2002, at Internet site: http://intranet/parliament/commit.nsf/(Report+Lookup+by+Com+ID)/DD3E209EA8B9A7F848256B900 0305CB4/$file/pf.paa.020327.rpf.001.xx.d.pdf, pp50-52. 138 Western Australia, Legislative Council, Standing Committee on Legislation, Corruption and Crime Commission Act 2003 and the Corruption and Crime Commission Amendment Bill 2003, Report No 21, December 2003, p182. 139 Western Australia, Legislative Council, Uniform Legislation and General Purposes Committee, Architects Bill 2003, June 2004, pp18-21.

66 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 5: Proposed Government Amendments to the Bills 5.67 Proposed new cl 1411 also enables regulations to provide that a specified state of affairs is to be taken to have existed, or not to have existed, from a day prior to the publication of those regulations in the Gazette, so long as the relevant day is not before the commencement of the section. In effect, this enables such regulations, once published, to have a retrospective effect.

5.68 A number of proposed amendments provide for regulations under various enabling Acts to deal with the enforcement of orders of the relevant professional disciplinary body for costs:

• Clause 595 (Land Valuers Licensing Act 1978).

• Clause 1173 (Settlement Agents Act 1981).

5.69 The Government’s proposed amendments to the Conferral Bill also seek to introduce broad investigatory powers and offences in relation to occupational discipline in a number of enabling Acts, including powers in relation to the abrogation of the privilege against self-incrimination and the creation of offences for failure to comply with an investigation and obstruction of an investigator. Such powers and offences are sought to be introduced into the following enabling Acts:

• Clause 116 (Chiropractors Act 1964).

• Clause 237 (Dental Act 1939);

• Clause 248 (Dental Prosthetists Act 1985).

• Clause 736 (Medical Act 1894).

• Clause 862 (Occupational Therapists Registration Act 1980).

• Clause 875 (Optical Dispensers Act 1966).

• Clause 884 (Optometrists Act 1940).

• Clause 982 (Pharmacy Act 1964).

• Clause 990 (Physiotherapists Act 1950).

5.70 These proposed amendments are consistent with investigative powers already contained within the Conferral Bill for introduction into various enabling Acts (such as the Architects Act 1921: cl 50, Land Valuers Licensing Act 1978, Licensed Surveyors Act 1909: cl 672, Podiatrists Registration Act 1984: cl 1008, and Psychologists Registration Act 1976: cl 1028). The Committee has commented on similar provisions of the Conferral Bill at paragraph 17.5 of this report.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 67 Legislation Committee TWENTY-FOURTH REPORT

68 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 6 THE JURISDICTION OF THE PROPOSED SAT

THE OBJECTIVES OF THE PROPOSED SAT

6.1 Clause 9 of the SAT Bill states:

“The main objectives of the Tribunal in dealing with matters within its jurisdiction are —

(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case;

(b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and

THE JURISDICTION OF THE PROPOSED SAT

6.2 Over 700 different types of applications will be dealt with by the proposed SAT.140

6.3 In his submission Mr L B Marquet makes the general observation of the SAT Bill that:

“The Tribunal it establishes defies description by reference to its functions. Arguably, it is more than an administrative body operating as part of the machinery of government framework, but it is denied the status of a court despite exhibiting most of the descriptors used to determine what is, and what is not, a court of law. The most accurate description is that the Tribunal is a statutory body exercizing judicial, legislative, arbitral and administrative functions with respect to its original or review jurisdictions or internal management.”141

140 Department of Justice, State Administrative Tribunal, Briefing Paper, provided to the Committee on March 8 2004, p1. 141 Submission No 47 from Mr L B Marquet, May 17 2004, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 69 Legislation Committee TWENTY-FOURTH REPORT 6.4 Like the VCAT, the proposed SAT is “a creature of statute” and does not have any inherent jurisdiction.142

6.5 The Government advised the Committee that under cl 14 of the SAT Bill, two distinct jurisdictions are established for the proposed SAT, namely an original jurisdiction and a review jurisdiction. All matters with which the proposed SAT is to deal fall within either of those two jurisdictions:

“14. Kinds of jurisdiction

A matter in which the Tribunal has jurisdiction comes within either its original jurisdiction or its review jurisdiction.”

6.6 The Committee, however, has an alternative analysis of the types of jurisdiction to be conferred on the proposed SAT. The Committee’s analysis is set out below at paragraph 6.32.

The Original Jurisdiction

6.7 The term “original jurisdiction” is defined in Butterworths Australian Legal Dictionary as follows with respect to the High Court of Australia:

“Matters in respect of which a proceeding (other than an appeal from a lower court) may be commenced in the High Court.”143

6.8 Accordingly, the proposed SAT’s original jurisdiction does not include appeals from a decision made by an administrator, board or tribunal. The proposed SAT’s original jurisdiction involves the SAT adjudicating matters at first instance, and will include the hearing and determination of various applications relating to equal opportunity, strata titles, retirement village disputes and general commercial matters.

6.9 A distinct division of this jurisdiction will involve disciplinary functions over a large number of occupational groups.

6.10 In his submission, Mr L B Marquet states that:

“The Tribunal’s original jurisdiction may be inappropriate or, more likely, it will detract from its primary role as a review body which, if the companion Conferral of Jurisdiction Bill is taken as a guide, will be wideranging.”144

142 Jason Pizer, Pizer’s Annotated VCAT Act, Second Edition, JNL Nominees Pty Ltd, Melbourne, 2004, p25. 143 The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p828. 144 Submission No 47 from Mr L B Marquet, May 17 2004, p7.

70 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 6: The Jurisdiction of the Proposed SAT 6.11 Mr Marquet further observed that:

“A[nother] matter is the failure to restrict the Tribunal to reviewing decisions of public officers made under statutory or prerogative authority. It is conceivable that enabling Acts could confer jurisdiction to review decisions made by officers of bodies such as those formed under the Associations Incorporation Act 1987 or a credit society. Some of the bodies brought within jurisdiction by the Conferral of Jurisdiction Bill are at the margin of what may be considered as a body established by law for a public purpose. If either jurisdiction is extended to decisions made by other than a public officer the Tribunal becomes a quasi-court of general jurisdiction rather than a component of public administration.

The Bill’s “one size fits all” approach to decisionmaking dilutes any concept of its being a pivotal aspect of the machinery of Administrative Law. The question is whether Tribunal decisions will apply different criteria to decisions made depending on the decisionmaker’s public or private capacity. The apparent reasoning behind the Tribunal’s extended jurisdiction seems to be an intention to mirror the jurisdiction of the Supreme Court.”145

The Review Jurisdiction

6.12 The proposed SAT’s review jurisdiction will involve the hearing and determination of appeals against certain administrative decisions that are currently dealt with by mechanisms such as the Town Planning Appeal Tribunal, the courts or by Ministers.

6.13 The review jurisdiction of the proposed SAT is a review on the merits of a previous decision of another person or body. Butterworths Australian Legal Dictionary defines “review on the merits” as:

“Review by a court or tribunal of the decision of a primary decision- maker where the review body is able to examine the facts and substitute its decision for that of the primary decision-maker as to what is the preferable outcome on the facts of the particular case.”146

6.14 The proposed SAT will conduct hearings in its review jurisdiction as hearings de novo, having regard to the facts existing at the time of the SAT’s hearings (cl 27, SAT Bill).

145 Ibid, p8. 146 The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p1028.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 71 Legislation Committee TWENTY-FOURTH REPORT 6.15 A matter heard “de novo” is defined in Butterworths Australian Legal Dictionary as a matter that is heard over again from the beginning:

“The body conducting the hearing de novo is not confined to the evidence or materials which were presented in the original hearing.”147

6.16 Clause 27 of the SAT Bill states:

“27. Nature of the hearing

(1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker but may involve the consideration of new material whether or not it existed at the time the decision was made.

(2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.

(3) The reasons for decision provided by the decision-maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.”

6.17 The conduct by the proposed SAT of its hearings in its review jurisdiction as hearings de novo seems to conflict with the stated aim of the SAT as a user friendly and low cost appeal mechanism. As Mr David Forrester, Barrister, noted with respect to cl 27 of the SAT Bill:

“It expands and extends the costs to the parties. I had a case that went for three days in the Building Disputes Tribunal. The builder appealed on a point of law and the appeal went to the District Court. The judge there, unfortunately, did not answer the legal point that had been raised but proceeded to hear the matter de novo, through affidavit evidence, at extended costs to the parties because they then had to get lawyers to draw up all the affidavits for them. The court came down with a decision on a totally different point of law. It was the same decision, but it was on a totally different point. So we did not solve anything at all in terms of the original things. I do not agree with hearing de novo. It does not help anything. It should be on the basis of the hearing before the tribunal in the first instance.”148

147 Ibid, p322. 148 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, p7.

72 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 6: The Jurisdiction of the Proposed SAT 6.18 The Pearl Producers Association Inc also expressed the view that a party in an appeal on a pearling licensing matter should not be able to raise new matters before the SAT that were not previously raised in the initial application and decision-making process within the Department of Fisheries.149

6.19 Clause 27 of the SAT Bill also raises significant issues with respect to the division of powers under the State’s constitutional legislation and the theoretical (as opposed to the Commonwealth’s express legislative) separation of powers between the Executive and Judicial arms of the State Government, and the implications of judicial officers making essentially political decisions. These issues were canvassed in a hearing with representatives of the Law Society of Western Australia:

“The CHAIRMAN: What are the respective advantages and disadvantages of SAT conducting its hearings de novo?

Mr Hardy: The advantage of a hearing de novo is that the whole matter would come fresh before the decision maker. When compared with the ability to review and challenge a decision made at a lower level with the inference - and it may be no more than an inference - that the decision made at the lower level ought to stand, until it is demonstrated that it should no longer stand, a decision maker who heard a case de novo would come to it with a clean and fresh mind to hear the arguments. He would make a decision based on the material put before him or her without any presumptions about what may or may not have been the right decision, without needing to undertake a review of the procedural aspects or substantive aspects of the decision making process of the court below. A hearing de novo approaches the matter cleanly, if you like. That is an advantage because it removes a perception of bias. It allows inconsistencies and irregularities that occur in the first instance to be ignored in favour of dealing with the substantive issue.

Hon PETER FOSS: I have a problem with a judicial member making a decision that was made by a bureaucrat in the first instance, and which is clearly a decision of the Executive, as if the member of the judiciary were a decision maker.

…

One of the problems in society is that we have given to non- accountable judges the role of making decisions about areas that require accountability. There is a notion that if you want to have a non-accountable person making a decision, you run off and get a

149 Submission No 26 from Pearl Producers Association Inc, November 11 2003, p5. G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 73 Legislation Committee TWENTY-FOURTH REPORT lawyer who has somehow got to the top of his profession to make decisions that should be made by people who are accountable to the people.

…

If a judicial member hears an administrative decision de novo, the judicial member would become an administrator, would he not?

Mr Hardy: I accept that complaint. I started by explaining the advantage of a de novo hearing, and you beat me to the punch; that is, the disadvantage of it. The disadvantage is the lack of expertise, or sometimes a diametrically opposed area of expertise. Judicial or legal expertise is not readily transferable to all areas of life, to put it mildly. That is a disadvantage. It leads very often to a loss of confidence by those who perceive themselves to be experts in the field when the ultimate decision is colourable because of that lack of experience; it is a significant disadvantage.

Hon PETER FOSS: Even though there is not a separation of power in the State, I find it constitutionally offensive that a decision that may put a Government into or out of power - because the decision will have that sort of impact - could be challenged by somebody simply because there is a right of review. Some of these types of reviews used to go to a minister because it was seen as an ability to take a matter further upstairs to the Executive. Now we have shot it off sideways and have said that judges can make those decisions. Frankly, lawyers are remote enough from reality.

They see a lot of things but they do not experience a lot of the pain that people have had. Judges are the absolute epitome of people who are separated from reality. It is a strange notion that judges are able to make a better decision than somebody who might lose his job if he does not make the right decision.”150

ENCOURAGING THE RESOLUTION OF MATTERS BEFORE PROCEEDINGS ARE COMMENCED IN THE PROPOSED SAT

6.20 Some of the practical problems caused by conducting an appeal from a decision as a hearing de novo are raised later in this report (at paragraph 13.18) with respect to appeals in the proposed SAT’s horse and greyhound racing jurisdictions.

150 Mr Michael Hardy and Ms Clare Thompson, Members, The Law Society of Western Australia, Transcript of Evidence, March 23 2004, pp9-10.

74 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 6: The Jurisdiction of the Proposed SAT 6.21 The Committee is of the view that for an administrative tribunal to be effective as a review body, there must be a mechanism to ensure that the parties that appear before the tribunal have previously made a genuine attempt to resolve the issues at the original decision-making stage.

6.22 During the Committee’s meetings with various VCAT user groups in Melbourne, a particular problem identified in the VCAT’s review jurisdiction in its Planning and Environment List was the amendment of development applications after an appeal had been lodged with the VCAT.

6.23 Pizer’s Annotated VCAT Act notes that:

“[I]n Re Staged Developments Australia Pty Ltd and Minister for Planning (2001) 8 VPR 131 the VCAT observed that, in a planning appeal, “the Tribunal normally has vastly more evidence and submissions to inform its decision than was available to the Responsible Authority”.”151

6.24 The Committee understands that some Victorian local governments have abrogated their responsibility to make politically unpopular decisions, irrespective of the merits, in the knowledge that the matter will ultimately be dealt with by the VCAT.

6.25 The Committee understands from its Melbourne meetings that the ease of amendment of development applications before the VCAT has led to some developers lodging ambit development applications with local governments in the knowledge that:

a) the application will be rejected by the local government;

b) the local government’s and any third party’s objections to the development will be identified and taken on board; and

c) an amended, more detailed, application can be presented to the VCAT during the appeal from the local government’s decision.

6.26 The Reference Group on Decision-making Processes, appointed by the Victorian Minister for Planning, examined in its Second Report in November 2002 the increasing problem of development proposals that are the subject of review at the VCAT being substantially different to those that were considered by the responsible authority.152 That report noted that:

151 Jason Pizer, Pizer’s Annotated VCAT Act, Second Edition, JNL Nominees Pty Ltd, Melbourne, 2004, p99. 152 Reference Group on Decision-making Processes (David Whitney, Chair), Report 2: Substitution and Amendment of Plans, Melbourne, November 2002.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 75 Legislation Committee TWENTY-FOURTH REPORT “The Inner South Metropolitan Mayors Forum has expressed the following concerns in relation to the substitution and amendment of plans:

- That the practice of substituting plans at VCAT, particularly where substantive changes are proposed, is undermining the role of councils in the decision making process. That is, it encourages the submission of ‘ambit claims’ and results in poorly resolved applications at the outset. …”153

6.27 The Reference Group on Decision-making Processes made a number of recommendations for reform based on the following:

“The Reference Group considers that:

- The focus should be on improving the quality of initial applications submitted so as to avoid the implications of ambit claims and to reduce the likelihood of significant changes to plans being needed.

- Councils need a clear framework within which they can legitimately and efficiently consider amended plans.

- There should be disincentives to substitution of plans at VCAT, so as to create greater incentives to having the final plan being the plan assessed by council.”154

THE COMMITTEE’S OBSERVATIONS

6.28 The experience of the VCAT illustrates a general reluctance by parties to certain administrative decisions to genuinely resolve issues at the original decision-making stage.

6.29 The Committee is of the view that the SAT Bill should encourage a full consideration of the issues raised by an administrator’s decision before lodgement of an application to review the decision in the proposed SAT. For instance, the Administrative Decisions Tribunal Act 1997 (NSW) provides detailed requirements as to how the decisions of government agencies are to be made and as to how government agencies are to conduct their own internal review of decisions.155

153 Ibid, p8. 154 Ibid, p3. 155 Part 2, Administrative Decisions Tribunal Act 1997 (NSW).

76 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 6: The Jurisdiction of the Proposed SAT 6.30 Such an attention to original decision-making is also consistent with the internal agency decision-making processes described in the proposed holistic approach to administrative law that was set out in the draft State Agencies Bill 1994 as recommended by the Legislative Council Standing Committee on Government Agencies in its Thirty-Sixth Report.156

6.31 The Committee is also in favour of the use of cost penalties by the proposed SAT in certain types of matters in the SAT’s review jurisdiction for those parties that had made no genuine attempt to resolve the matter when it was before the original decision-maker.

156 Western Australia, Legislative Council, Standing Committee on Government Agencies, State Agencies: Their Nature and Function, Thirty-Sixth Report, April 1994.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 77 Legislation Committee TWENTY-FOURTH REPORT

Clause 86

Page 51, after line 16 — To insert —

“

(b) whether the party (being the decision–maker) genuinely attempted to make a decision on its merits.

”.

Clause 87

Page 52, after line 5 — To insert —

“

(aa) section 86(3a) applies to the party; or

”.

78 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 6: The Jurisdiction of the Proposed SAT

Page 21, after line 24 — To insert —

“

”.

THE COMMITTEE’S ANALYSIS OF THE PROPOSED JURISDICTION OF THE SAT

6.32 The Government has described the proposed SAT’s jurisdiction as being both an original jurisdiction and a review jurisdiction over the following four ‘streams’:157

• Human Rights and Equal Opportunity.

• Resources and Development.

• Commercial and Civil.

• Vocational Regulation.

6.33 The Committee, however, on its own analysis views the jurisdiction of the proposed SAT as more complex and comprising the following distinct classes of jurisdiction:

a) Review of decisions of the State Government (ministerial, departmental, government trading enterprises, taxing or planning authorities or independent bodies carrying out governmental functions). Examples of relevant enabling Acts include the Health Act 1911, Aboriginal Heritage Act 1972, Heritage of Western Australia Act 1990, Country Towns Sewerage Act 1948, Cremation Act 1929, East Perth Redevelopment Act 1991, Fish Resources Management Act 1994, Rights in Water and Irrigation Act 1914, Road Traffic Act 1974, Firearms Act 1973, and the Taxation Administration Act 2003.

157 Department of Justice, State Administrative Tribunal, briefing paper, undated, p3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 79 Legislation Committee TWENTY-FOURTH REPORT b) Review of local government in the same manner as above. Examples of relevant enabling Acts include the Dog Act 1976 and the Town Planning and Development Act 1928.

c) Initial determinations in government matters (usually where a value has to be determined). Examples of relevant enabling Acts include the Land Administration Act 1997, Marketing of Eggs Act 1945, and the Maritime Archaeology Act 1973.

d) Review of occupational licensing matters. Examples of relevant enabling Acts include the Nurses Act 1992 and the Builders’ Registration Act 1939.

e) Initial determination of occupational conduct and disciplinary matters. Examples of relevant enabling Acts include the Legal Practice Act 2003 and the Racing Penalties (Appeals) Act 1990.

f) Determination of commercial disputes. Examples of relevant enabling Acts include the Commercial Tenancy (Retail Shops) Agreements Act 1985 and the Retirement Villages Act 1992.

g) Review of decisions affecting human rights. Examples of relevant enabling Acts include the Equal Opportunity Act 1984 and the Guardianship and Administration Act 1990.

THE INCLUSION OF MATTERS WITHIN THE JURISDICTION OF THE PROPOSED SAT BY WAY OF ENABLING LEGISLATION

6.34 The source of the proposed SAT’s jurisdiction is set out in cl 13 of the SAT Bill as follows:

“13. Source of jurisdiction

(1) A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned.

(2) In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter. …”

6.35 The types of matters that may fall within the jurisdiction of the SAT is thus potentially limitless.

6.36 Furthermore, the general procedures of the proposed SAT may be overridden in relation to a matter by the provisions of any relevant enabling Act by virtue of cll 16 and 18 of the SAT Bill.

80 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 6: The Jurisdiction of the Proposed SAT

PARLIAMENTARY REVIEW OF THE JURISDICTION AND OPERATION OF THE PROPOSED SAT

6.37 The Committee notes that the SAT Bill contains no provision for a Ministerial review of the operation of the SAT after its commencement. Such a review was provided for in the case of the ADT.158

6.38 The Committee is of the view, however, that there would be some benefit in providing a requirement in the SAT Bill for a parliamentary review of the jurisdiction and operation of the proposed SAT after the SAT has been in operation for two years. Such an approach was adopted in s 146 of the Administrative Decisions Tribunal Act 1997 (NSW) (see paragraph 3.34).

Page 96, after line 4 — To insert —

“

167A. Legislative Council inquiry

(a) a committee of the Legislative Council established to conduct that inquiry; or

(b) an existing committee of the Legislative Council upon which the function of conducting that inquiry is conferred by that House.

”.

158 Section 147, Administrative Decisions Tribunal Act 1997 (NSW).

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 81

CHAPTER 7 THE STRUCTURE OF THE PROPOSED SAT

THE BASIC STEPS TO BE TAKEN BY THE PROPOSED SAT WHEN DEALING WITH A MATTER

7.1 The Government advised the Committee that the proposed SAT’s procedures for dealing with those matters that come before it may be broken down into the following five steps:159

a) An applicant lodges an application with the SAT. There will be a single application form, in plain language, for all types of applications. When the matter is part of the SAT’s review jurisdiction, the SAT will order, if necessary, the production of written reasons from the relevant decision-maker before proceeding.

b) Upon lodgement of the application form, the matter will be listed for preliminary hearing or mediation. The preliminary hearing will determine the procedure to be followed by the SAT in hearing and determining the matter.

c) A compulsory conference/mediation or directions hearing is held depending on the nature and complexity of the matter.

d) The application is dealt with either on the documentation provided to the SAT by the parties or by way of a hearing.

e) The SAT delivers its decision (which, subject to the confidentiality provisions of the SAT Bill, will be published on the SAT Internet site).

MEMBERSHIP OF THE PROPOSED SAT

7.2 It is anticipated that membership of the SAT will be as follows:160

• four full time senior members;

• 10 full time ordinary members (although two of these full time equivalent positions may become four part time positions); and

• approximately 200 sessional members (representing 11 full time equivalent positions).

159 Notes for Legislation Committee of the Legislative Council - SAT, February 26 2004, p8. 160 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 83 Legislation Committee TWENTY-FOURTH REPORT 7.3 With respect to the role of the sessional members, the Committee was advised that:

“There will also be sessional members, as opposed to part-time, who would come in every Monday or Tuesday and sit on SAT. Sessional members will be called in for particular hearings. They will be a lot of industry people, who will sit on disciplinary matters and those sorts of things. For example, under the Fisheries Adjustment Schemes Act, someone is needed who is experienced in fish business broking.”161

7.4 The amount to be paid to members has not yet been finalised.162

7.5 As to whether existing tribunal members will be incorporated within the SAT, the Committee was advised that:

“[A]ll people currently sitting on bodies for which part or all of their jurisdiction comes under the State Administrative Tribunal will be written to and asked if they want to sit on SAT in a part-time or full- time capacity. That will constitute an expression of interest. Then all positions will be advertised and an application process - hopefully transparent - will occur. All the matrixes outlining what skills are required have been or will be done, and we hope they will be met.”163

7.6 The Committee was advised that it is the State Government’s intention that as much expertise as possible be transferred from existing boards and tribunals to SAT.164

The Exclusion of Public Sector Employees from Membership of the SAT

7.7 Clause 118(3) states that:

“Despite anything in this section a non-judicial member is not allowed to engage in any paid employment as a public sector employee.”

7.8 Clause 3 of the SAT Bill defines “public sector employee” as having the same meaning as an “employee” in s 3(1) of the Public Sector Management Act 1994, which relevantly states:

161 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p16. 162 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p3. 163 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p19. 164 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p5.

84 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT ““employee” means person employed in the Public Sector by or under an employing authority”.

7.9 “Public Sector” is defined in s 3(1) of the Public Sector Management Act 1994 as:

“[A]ll -

(a) the agencies;

(b) the ministerial offices; and

7.10 The Committee was advised that public sector employees are proposed to be excluded from membership of the SAT for the following three reasons: 165

a) appointments are made to SAT and not to separate jurisdictions within SAT;

b) SAT is an independent body which reviews decisions of government and that independence may be compromised if public sector employees become members of the SAT; and

c) there is risk, or at least a perception, that public sector employees could be subject to direction, influence or control by their superiors in the public sector.

7.11 The rationale for the exclusion was further explained in the following terms by Ms Judy Eckert, Barrister and Instructing Officer for the SAT Legslation:

“Fundamentally appointment to SAT is an appointment to SAT, not to one of its jurisdictions. It is hard to say, “You are appointed but you can sit only in these jurisdictions.” That is like appointing a magistrate who will deal only with offences against the Road Traffic Act. You are appointed to the position, you are appointed to the membership of SAT. You cannot have a public servant sitting on the review of administrative decisions, because SAT is an independent body. If public servants sat on it, it would lose that perception of independence. You might be reviewing a decision from the transport department and might want someone from the Department of Health sitting on that review. However, with the mobility in the public sector and the fact that people could always be subject to influence from somewhere else in the public sector, it would be a fundamental flaw to have members of the public sector sitting in the review jurisdiction. I suppose that is the first point: we cannot have public sector employees sitting in the review jurisdiction; they are appointed to

165 Ibid, p3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 85 Legislation Committee TWENTY-FOURTH REPORT SAT and not to a particular jurisdiction in it. Part of that is to avoid any real influence. For instance, if you are sitting with one member only, you could have external pressure from the public sector, for budgetary reasons or matters totally unassociated with what SAT is hearing, to say, “We will find the decision this way because it will have a long term impact for budget reasons if we find it another way.” That would not be fair, impartial and independent decision- making.”166

7.12 The issue was pursued at the hearing by Hon Peter Foss MLC:

“Hon PETER FOSS: I think you are right in saying that public servants should not sit in judgment of merits appeals from public servants, irrespective of what they are. However, that shows up a flaw in the whole concept of SAT, because you are saying that in order to have this single body, some people who otherwise might be the best people to sit in judgment must be disqualified. Once you start putting exceptions in for one jurisdiction, you start to undermine the whole concept of appointing people to SAT and not to bits of SAT.

…

What happens in a private hospital if a person is sitting in judgment on a junior doctor in that hospital? That is exactly the same situation, except that the person will not be disqualified. You would hope that that person would be disqualified by the process, not by the law. …. What happens if the person sitting on SAT is a business rival of the person before the tribunal?

Ms Eckert: That of course happens in all disciplinary areas.

Hon PETER FOSS: It does. It is just as likely to happen under this area. That is dealt with through addressing conflict of interest. That conflict can apply to anyone, not only public servants. You picked public servants as an obvious case of conflict. I can see many cases in which there would not be a conflict, and I can see a lot of cases in which private people have conflicts. You should deal with that matter, and not just place a blanket ban on public servants.

Ms Eckert: We have picked public servants as an area of conflict because that is not acceptable in SAT’s jurisdiction with a merit- based review.

166 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p12.

86 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT Hon PETER FOSS: You refer to one of its jurisdictions. You have three sorts of jurisdictions in here. You might have heard me say what I think about uniform solutions and uniform bomb patterns. I think it was General Peckham in Catch-22 who liked to have uniform bomb patterns not because [they] were more effective, but because they looked better on the aerial photographs. I think this solution looks better on the aerial photographs, but is not quite as effective in giving people justice.”167

7.13 Former public servants and those employees of corporatized government enterprises such as Western Power, the Water Corporation, the universities and port authorities will be entitled to be members of the SAT.168

7.14 The Law Society of Western Australia expressed its concern in relation to cl 118(3), submitting that the prohibition on non-judicial members of the proposed SAT working in the public sector will deprive the SAT of valuable experience and expertise within the public sector, particularly in the areas of medicine, nursing, teaching and the law.169

7.15 The Pharmaceutical Council of Western Australia noted that a number of its members are pharmacists employed in public hospitals. The Pharmaceutical Council of Western Australia could see no logical reason to exclude such members from membership of the proposed SAT.170

7.16 With respect to the professional disciplinary jurisdiction of the SAT, the Committee was advised that osteopaths and nurses would be the two professions most likely to be affected by the ban on public sector employees becoming SAT members.171 The Committee notes that it is estimated that 30 of the 35 currently registered osteopaths in Western Australia are public sector employees.172 The Committee was also advised that approximately two thirds of registered nurses work in the public sector.173

7.17 With respect to the guardianship and mental health jurisdictions of the SAT, the Committee was advised that currently there are four public sector employees amongst

167 Ibid, pp13-14. 168 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p3. 169 Submission No 36 from The Law Society of Western Australia, November 11 2003, p9. 170 Mr Robert Brennan, Registrar, Pharmaceutical Council of Western Australia, Transcript of Evidence, March 17 2004, p3. 171 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p3. 172 Ibid. 173 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 87 Legislation Committee TWENTY-FOURTH REPORT the 13 members of the GAB.174 The Committee was further advised that of the 28 current members of the MHRB, 11 are public sector employees.175

7.18 Referring to the above statistics, Ms Eckert stated that:

“Overall, the statistics … do not indicate that the exclusion of public sector employees from membership of SAT represents a significant issue which would necessarily require an amendment that freely allows public sector employees to be appointed as members of SAT.

Although I have some concern about creating a “chink” in the armour of SAT’s independence, in light of the above, and subject to final instruction from the Attorney General, I will instruct Parliamentary Counsel to prepare an amendment to clause 118(3) so that regulations can prescribe particular applications in the original jurisdiction under specific Acts where a member of the public sector is able to sit. I have in mind applications in the disciplinary jurisdiction, where it is essential that a member of the public sector sit (such as perhaps in an osteopath matter) whether because no one else is available or because the nature of the matter requires specific public sector knowledge. This proposed amendment would also allow the appointment of a member of the public sector to deal with guardianship and administration or mental health matters if that becomes necessary.”176

7.19 It was also suggested to the Committee that it would be of value to public sector employees to serve on the SAT to obtain a greater understanding of the ‘real world’:

“A very big wall still exists between public sector employees and the private sector. Unfortunately, Canberra is a classic example of this where public sector employees have very little idea sometimes of what on earth is going on in the rest of Australia, simply because they do not mix in and are not brought into the process. I would say yes, by all means have public sector employees doing stints on these tribunals. I am sure it would be of great assistance for them sometimes to find what the real world is like.”177

7.20 The Committee expresses the view that it is only when the SAT is involved in a strict review of an administrative decision that having a public sector member on the SAT

174 Ibid. 175 Ibid. 176 Ibid, p4. 177 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, p7.

88 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT becomes an issue. Given the wide-ranging jurisdiction of the SAT, the Committee sees no problem in certain SAT members being restricted to sitting only in specific jurisdictions of the SAT. The Committee believes that this issue could be addressed by way of appropriate guidelines being introduced for the President of the SAT to observe when exercising the case by case discretion to appoint SAT members to hear and determine matters.

Clause 115

Page 68, before line 17 — To insert —

“

(5) A person who is a public sector employee may be appointed to be a non- judicial member in respect of matters in the Tribunal’s original jurisdiction that are —

(a) of a class prescribed by the regulations; and

(b) specified in the instrument of appointment,

and a person so appointed is not allowed to be a sitting member of the Tribunal, or perform any function as a Tribunal member, in relation to any other matter.

”.

Clause 117

Page 69, after line 13 — To insert —

“

(5) A determination cannot be made under this section in respect of a person appointed under section 115(5) unless the Minister for Public Sector Management approves of it being made.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 89 Legislation Committee TWENTY-FOURTH REPORT

Clause 118

Page 70, line 1 — To insert after “member” —

“ (other than a person appointed under section 115(5)) ”.

JUDICIAL LEADERSHIP AND THE PERCEIVED LEGALISTIC NATURE OF THE PROPOSED SAT

Judicial Leadership

7.21 Pursuant to cl 107(3) of the SAT Bill the President of the SAT must be a Judge of the Supreme Court.

7.22 Pursuant to cl 111(3) of the SAT Bill a Deputy President of the SAT must be a Judge of the District Court.

7.23 In her evidence to the Committee, Ms Eckert set out the following reasons for having a Supreme Court Justice and District Court judges as senior members of the SAT:

“Former Chief Justice of the High Court Sir Anthony Mason wrote a very telling article.[178] …. He said that judicial leadership really is necessary in these sorts of bodies because they resolve quite complex disputes. Ultimately, having judicial leadership sorts out the chaff. It allows a trained, experienced legal mind to work through and distil the issues. There have been proposals not to have judicial leadership at the head of these bodies but to provide senior legal advice to them. Mason pointed out that the real problem with that is that it elevates staff to the position of the sitting person, without being the person sitting, and that there are a lot of inherent dangers in that. He said that a merits review system would be a substandard system without judicial leadership. The [WACARTT] report at pages 132 to 133 sets

178 Hon Sir Anthony Mason AC KBE, “Reflections on the Development of Australian Administrative Law”, in The Kerr Vision of Australian Administrative Law, R Creyke and J McMillan (Eds), The centre for International and Public Law, ANU, Canberra, 1998.

90 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT out reasons for judicial leadership. For me the primary reason for judicial leadership, which I do not think the report goes into so much, is to ensure the protection of people’s rights. A body like this must provide careful protection of people’s rights. To entrust that to someone without judicial status is, I think, a dangerous thing. Judicial leadership is also needed because apart from the fact that these boards deal with very complex issues, SAT needs to have the status that judicial leadership attracts. I am a chair of a regulatory board. We have disciplinary hearings.

Anecdotal evidence from quite a few of these sorts of boards is that the counsel who come before such boards act like they are in the Supreme Court. They do not necessarily treat the boards with the status and respect that they need for the quick and efficient dispatch of business. Judicial leadership allows for that respect, not so that the hearings become overly legalistic but to ensure that they are not legalistic. It is to ensure that you do not have counsel jumping up all the time saying, “You can’t admit that; the rules of evidence will not allow it” or taking technical points. It is to ensure that the hearings are run in a very efficient, proper and non-legalistic way. I think you need the judicial leadership for that to occur and to get rid of delay and complexity. I do not agree that merely having judicial leadership means you will have extraordinarily complex, Supreme Court type procedures. The objectives of SAT are clearly set out in clause 9 of the Bill. That must be the primary, overriding way that the tribunal is run and the way that its rules and regulations are created.”179

7.24 The WACARTT report made the following arguments in favour of judicial leadership in the proposed SAT:

“THE IMPORTANCE OF JUDICIAL LEADERSHIP

16. There are several reasons for recommending that the Presidential members be judges. First, the head of the SAT should have the requisite status and respect to deal with the Government, Parliament and other bodies on matters affecting the SAT in a way that ensures the independence of the SAT.

17. Secondly, it is of the utmost importance that persons of high legal calibre and with the skills appropriate to the functions of the SAT, including administrative skills, be attracted to the

179 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, pp5-6.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 91 Legislation Committee TWENTY-FOURTH REPORT positions. Permanency of appointment is a critical issue in this regard.

18. Thirdly, the SAT will have a significant jurisdiction in many important fields of administrative decision making in the State and, at times, will have to determine difficult questions of law and fact. The availability of Presidential members of high judicial competence will go a considerable way to reducing the prospects of further appeals on issues of law.

19. Additionally, having a President of Supreme Court status will assist in maintaining respect and harmonious relations between the SAT and the Supreme, District and Magistrates Courts.

20. The experience in both Victoria and New South Wales, as well as that of the AAT, is that judicial leadership ensures public confidence in the integrity, independence and impartiality of such a tribunal. Such appointments demonstrably remove the potential for government influence over the SAT and ensure that the SAT is possessed of the highest levels of administrative and legal expertise.

21. The Chief Justice of Western Australia in his submission agrees that it is highly desirable that the President should be a judge of the Supreme Court, although His Honour would prefer that the President be appointed on the recommendation of the Chief Justice after consultation with the Attorney General.

22. However, the Taskforce is of the view that the recommendation we have made concerning the manner of appointment is appropriate. The form of appointment we have suggested is the same as that which operates in Victoria in relation to the appointment of the President of the VCAT, who is also a judge of the Supreme Court of Victoria. An appointment process of the type we have recommended recognises the important, separate status the SAT has as a civil and administrative review agency that significantly is not a part of the Supreme Court and is not to be viewed as such.

23. The Chief Justice of Western Australia has also indicated that he is totally opposed to appointments in the form that simply

92 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT gives the President or Deputy Presidents the status and privileges of a judge of the Court without actually appointing them to that Court. The Taskforce respectfully agrees with this submission which accords with our recommendations above.

24. In his submission, the Chief Justice of Western Australia also agrees that the Deputy Presidents should be judges of the District Court appointed for a term and that it would be appropriate for such appointments to be made from the ranks of the District Court judges. Again, the Chief Justice has suggested that the appointment should be made on the recommendation of the Chief Justice after consultation with the Attorney General and the Chief Judge of the District Court. However, for the reasons we have set out above in relation to the manner of appointment of the President, the Taskforce considers that the mode of appointment we have suggested, namely, appointment by the Governor on the recommendation of the Attorney General after consultation with the Chief Justice of Western Australia and the Chief Judge of the District Court, is the most appropriate.

25. As to the appointment of the two Deputy Presidents for a term of five to seven years, the Taskforce recognises that, depending on the development of the jurisdiction of the SAT, it may be unnecessary for the two Deputy Presidents to be engaged in the work of the Tribunal on a full-time basis. In such an event, the Deputy Presidents, or one of them, may be expected to serve the District Court in a full-time or part-time capacity, as the President of the SAT and the Chief Judge of the District Court may agree between them.”180

The Committee’s Observations

7.25 Whilst judges and lawyers have supported the concept of judicial leadership, the Committee is not convinced by the arguments put forward in favour of the contention. The Committee remains concerned at the risk of excessive legalism and formality in proceedings in an organization where senior lawyers dominate.

7.26 The Committee, however, does not propose any amendment to the SAT Bill based on its view.

180 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australian Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, pp132-135.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 93 Legislation Committee TWENTY-FOURTH REPORT The Perceived Overly Legalistic Nature of the Proposed SAT

7.27 The Law Society of New South Wales noted that the nature of administrative tribunals has undergone change over time, and that the powers and functions of tribunals have been enhanced to include ‘court-like’ powers and procedures.181 It pointed out that such developments pose real risk that less experienced tribunal members may presume that they, in fact, have the powers of a court and that the tribunal’s informal procedures should become ‘rules’.182 The risk of a tribunal falling into jurisdictional error in such a scenario is great.

7.28 It was stressed to the Committee by the Government that:

“SAT is not a court: SAT is clearly not intended to be a court, nor will it operate as such. Great care was taken in drafting the Bills to ensure that SAT did not have the traits of a court so that it could and would not be perceived as a court or a hybrid of a court and a tribunal (there has been some difficulty in this regard with the Victorian Civil and Administrative Tribunal, primarily because of its contempt powers).”183

7.29 Mr David Forrester, Barrister, however noted that:

“My concern with this legislation is that, in effect, it will establish a court rather than what is called a super tribunal, whatever that may mean. The people who have drafted this legislation and considered the basis of it have forgotten that there is a difference between evidence required in common law matters - which is what happens in the District, Supreme and Local Courts and which requires extensive pleadings and extensive evidence - and statute law under which tribunals are established. Statutes do not require the extensive procedures required in the Supreme, District and Local Courts. Unfortunately, some of those aspects have been included in this legislation. My grave concern is that in effect, once we establish a court, as is the current position - I have found this over experience of many years now - a large section of the population is unable to get justice or sort out their problems because of the cost of obtaining legal advice. A basic charge to obtain legal advice for a minor matter will be at least approximately $5 000. When a court is established, as I am afraid this legislation will provide, a large section of the

181 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p1. 182 Ibid. 183 Letter from Ms Judy Eckert, Barrister, Instructing Officer on the State Administrative Tribunal Legislation, June 17 2004, “Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submissions made to the Committee on the SAT Bills”, p21.

94 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT population will be unable to take advantage of it; whereas, presently, people can appear at tribunals without legal representation and be assisted in the process of giving that evidence. It has been mentioned to me that SAT will not be a court; it will be a tribunal. However, certain clauses of the Bill will provide powers to the State Administrative Tribunal which are powers usually granted to courts. Clause 32(6) provides that the persons concerned will be entitled to call or give evidence under examination in chief, cross-examination and re-examination. When that applies to every witness, witnesses must have technical knowledge on how they deal with those matters if they are appearing in court and being cross-examined by someone else. …

Another clause also of concern is clause 89, which grants this tribunal the powers of injunctions. That is normally given only to a court.”184

Qualifications of Non-Judicial Members of the Proposed SAT

7.30 Clause 115(3) of the SAT Bill sets out the qualifications for non-judicial membership (that is, members other than the President and Deputy President) of the SAT as follows:

“A person cannot be a non-judicial member unless the person —

(a) is a qualified person and has had not less than 5 years’ legal experience; or

(b) has, in the opinion of the Minister, extensive or special knowledge of, or experience with, any class of matter involved in the exercise of the Tribunal’s jurisdiction.”

7.31 The Committee is concerned that cl 115(3)(b) will exclude from membership of the SAT ordinary members of the public who do not possess specialist knowledge. The Committee would like to see a small number of people with no specified qualifications or knowledge, but with ‘common sense’ and a variety of life experiences as non-judicial members of the SAT.

7.32 Clause 11 of the SAT Bill also specifies that a legally qualified member must sit on the SAT unless the President is satisfied that the proceeding “…will not involve any issue requiring the knowledge of a legally qualified member.” Certain preliminary proceedings do not require the presence of a legally qualified member on the SAT.

184 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, pp1-2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 95 Legislation Committee TWENTY-FOURTH REPORT 7.33 The Committee is concerned that the definition of “legally qualified” member does not include those experienced magistrates who do not hold formal legal qualifications.

7.34 Judicial members of the SAT may grant injunctions and make declarations concerning any matter under cll 89-90 of the SAT Bill. Legally qualified members may grant interim injunctions under cl 89 of the SAT Bill.

7.35 When the Committee raised the issue as to whether undue delay may be caused by the necessity for certain decisions to be made only by the legally qualified members of SAT, the Committee was advised that:

“The requirement for a legally qualified person to decide these matters will not cause practical problems or undue delays. If a separate application has been made to the tribunal for the dismissal of a proceeding under clause 47(4) or dispensation of service under clause 45(4), an interim application will have been filed and the appropriate member will be listed to hear the application. Additionally, directions hearings will be listed at particular times before a single legally qualified member. These are procedural issues which SAT will deal with in the ordinary course of its organisation.”185

7.36 The Committee, however, notes the evidence of Mr David Forrester, Barrister, that undue delays are likely to arise in such circumstances

“Mr Forrester: … Normally - in almost all the tribunals that I know of - each hearing has three parties. The lawyer is the chairperson, with a representative of the industry and a representative of the public, in the sense of not being aligned to any particular party in the hearing. Therefore, any legal issues that arise are dealt with there and then, or reserved while the chairperson does the necessary research and comes back with the answer about the problem that has been raised. If you have a hearing in which there are no legal members, inevitably a legal matter must be referred to a lawyer, who will want full details of all the matters that have come up - the arguments and so on - to be able to determine legal issues being raised. Inevitably, there will be considerable delays. It will depend entirely upon that particular legally qualified member, what other matters they have on hand, and when they are next free to deal with this particular issue. I would see serious delays occurring with that. It depends entirely upon how SAT is constituted and how it is set up.

185 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p9.

96 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT Almost all the tribunals I am aware of - I do not know about the racing tribunal; I think it has a lawyer as chairperson -

Hon PETER FOSS: It has three lawyers.

Mr Forrester: Three lawyers? That does not arise in those circumstances, then, because the lawyer has heard all the proceedings, heard the evidence, and knows exactly what it is all about and how the issue has arisen. He can then deal with the legal issue without suddenly saying “did they say this or did they say that?” or “was this intended, or that intended?” I would certainly be concerned about being asked to give a legal opinion on proceedings that I have not attended.

…[Y]ou would have to read the transcript to ascertain what was going on and what had happened, and that takes time. If you have a day’s hearing, it will take you just about a day to read the transcript. It is a very lengthy process that would involve extra costs.”186

7.37 Further practical issues raised by the perceived urgent nature of racing appeals are dealt with in CHAPTER 13 below.

7.38 The Committee’s discussions with the Honourable Justice Stuart Morris, the President of the VCAT, indicated that he uses non-legally qualified tribunal members in many areas of the VCAT’s jurisdiction, and that in certain planning matters he views professional town planners as well qualified in the area of planning law to make decisions on the law as well as the facts of a matter. This point was raised in a recent speech of Justice Morris, in which he noted:

“It is common for matters in [the VCAT’s Planning and Environment] list to be determined by a tribunal constituted without a legal member. …Town planning members of the tribunal study planning law as part of their academic town planning courses and are well versed in the day to day application of planning law. Can all legal practitioners make this claim?”187

7.39 The Committee is of the view that the presence of lawyers on a tribunal can lead easily to the adoption of legal procedures, and that a restriction requiring lawyers to be members of every tribunal unless the President determines on specified grounds

186 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, p9. 187 The Honourable Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, VCAT Practices and Procedures: Recent Developments, a speech delivered at a seminar held on July 20 2004 at Melbourne to mark the launching of the 2nd edition of Pizer’s Annotated VCAT Act, p7.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 97 Legislation Committee TWENTY-FOURTH REPORT otherwise seems an unnecessary restriction on the President’s ability to make the system work.

7.40 The Committee is of the view that a competent President should be able to make the choice of members to constitute a tribunal on a case-by-case basis.

Page 9, lines 4 and 5 — To delete the lines.

Page 9, lines 19 to 25 — To delete the lines.

Flexibility in Procedure

7.41 Balanced against the above-stated requirements for legally qualified members on the SAT, cl 32 provides that the rules of evidence do not apply to the SAT:

“…(2) The Evidence Act 1906 does not apply to the Tribunal’s proceedings and the Tribunal —

(a) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and

(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

(3) Without limiting subsection (2), the Tribunal may admit into evidence the contents of any document despite non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.

(4) The Tribunal may inform itself on any matter as it sees fit.

(5) To the extent that the practice and procedure of the Tribunal is not prescribed by or under this Act or the enabling Act, it is to be as the Tribunal determines. …”

98 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT 7.42 Hon Peter Foss noted the following in a hearing with Ms Eckert:

“Hon PETER FOSS: I actually brought the very first case before the Town Planning Appeal Tribunal, so I know something about it. I remember being told the exact same things then about the Town Planning Appeal Tribunal; that it would be a cheap, quick, informal process, and that it would be wonderful. Somewhat surprisingly for some people, it ended up just as you said; it is the most complex, convoluted, expensive thing. It is no cheaper than going to the Supreme Court. All the wonderful things that were said about it were just lost. Essentially, when a lot of judges are in charge and a lot of lawyers are in front of it you end up with the Supreme Court. Because of that, everybody kept going to the minister because it was cheap, quick and people could get a sensible administrative decision. It was only when the current minister refused to deal with appeals that they started going back to the tribunal. As a tribunal is run by judges, I do not know how it would not end up like the Town Planning Appeal Tribunal, even though there may be magistrates and other people on it. There were other people on the Town Planning Appeal Tribunal. How can you say that it will be cheap and quick when everything I read in here indicates to me that it will be convoluted, bureaucratic and time consuming?”188

7.43 Ms Judy Eckert gave the following response:

“I hear what the member is saying, but the SAT legislation proposes that SAT will be a simple process. The member can point to what happened with town planning, but there was no judicial leadership to ensure that town planning was a simple process. It is hoped that judicial leadership will ensure that that occurs and that SAT will not get carried away with legalistic procedure. There is a very sincere hope that there will be less need for lawyers than there is now because the procedures will be uniform and accessible. People involved with SAT will be provided with assistance online, by phone and in person, and they will be provided with an application form that is written in plain language. Depending on the matter, within seven to 21 days of the application form being filled out the applicant will attend the first directions hearing. It is called a directions hearing, but that does not mean it is legally complex. The directions hearing involves the applicant finding out how the matter will be dealt with. It might be dealt with there or it might be sent for immediate mediation.

188 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p5.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 99 Legislation Committee TWENTY-FOURTH REPORT Mediation will be used extensively. That facility is not involved with most of these types of matters at the moment. The matter could be dispensed with at mediation. Alternatively, it could be dealt with in a way in which the decision maker must make everything available; that is, all the files must go to SAT. Citizens will have the right to see how and why a decision was made, and that should not incur additional legal fees. That measure should result in less need for lawyers rather than more, but I cannot guarantee that.”189

7.44 The Western Australian Fishing Industry Council Inc submitted that the SAT Bill, in “attempting to legislate a one-size-fits-all model”, is at risk of failing to distinguish between the wide variety in the types of decisions that will be reviewed by the SAT.190

7.45 In particular, the Western Australian Fishing Industry Council Inc was concerned that the standard provisions of the SAT Bill for hearings was too formal and legalistic for the types of matters currently handled by the Fisheries Objections Tribunal under the Fish Resources Management Act 1994 and the Minister for Fisheries under the Pearling Act 1990. It was submitted that, for such matters, the right to legal representation should be removed and that the proceedings should be conducted on written submissions alone, with no oral evidence and no cross-examination and re- examination.191

7.46 The Pearl Producers Association Inc supported the approach suggested by the Western Australian Fishing Industry Council Inc, noting that:

“The taking of oral evidence and allowing cross examination will mean significant periods of time spent by Department of Fisheries staff and the parties in adversarial proceedings, with the associated costs and time consequences.

… [T]he right of representation by a legal practitioner (clause 39 (1)) should be removed, unless the SAT grants leave in exceptional circumstances.

This provision again flies in the face of [WACARTT’s] stated intent to establish a single adjudicative tribunal which would allow adoption of a less adversarial and more inquisitorial approach which would develop procedures of a less formal, less expensive and more flexible kind. An automatic right of representation by a legal

189 Ibid, p8. 190 Submission No 27 from Western Australian Fishing Industry Council Inc, November 11 2003, p2. 191 Ibid, p2.

100 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT practitioner does not support those promoted values, which [the Pearl Producers Association Inc] generally endorses.”192

7.47 The Department of Fisheries also, whilst generally supportive of the concept of SAT and acknowledging the benefits to the Department of it no longer having responsibility for the administration of the current Fisheries Objections Tribunal, has concerns about the “layers of complexity” in the proposed SAT:

“The Department’s main concern about the SAT Bill is that it may achieve independence of decision-making at too high a cost, with excessive layers of process and yet not reach the correct or preferable decision in the context of natural resource management and appeals under the [Fish Resources Management Act 1994 and Pearling Act 1990]. The SAT Bill has the propensity to add layers of complexity and administration that are arguably not necessary to reach the correct and preferable decision on a matter. That in turn will create opportunities for lawyers to maximise their involvement in matters and add to the expense of matters, that will be borne ultimately by both Departments and applicants for review.”193

7.48 The Committee contrasts the right to legal representation in cl 39 of the SAT Bill with s 31 of the Industrial Relations Act 1979, which states:

“31. Representation of parties to proceedings

(1) Any party to proceedings before the Commission, and any other person or body permitted by or under this Act to intervene or be heard in proceedings before the Commission, may appear 

(a) in person;

(b) by an agent; or

(i) that party, person or body, or any of the other parties, persons or bodies permitted to intervene or be heard, is the Council, the Chamber, the Mines and Metals Association, the Minister or the Minister of the Commonwealth administering the Department of the

192 Submission No 26 from Pearl Producers Association Inc, November 11 2003, pp5-6. 193 Submission No 23 from Department of Fisheries, November 11 2003, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 101 Legislation Committee TWENTY-FOURTH REPORT Commonwealth that has the administration of the Commonwealth Act; or

(ii) the proceedings are in respect of a claim referred to the Commission under section 29(1)(b) or involve the hearing and determination of an application under section 44(7)(a)(iii); or

(iii) all parties to the proceedings expressly consent to legal practitioners appearing and being heard in the proceedings; or

(iv) the Commission, under subsection (4), allows legal practitioners to appear and be heard in the proceedings,

by a legal practitioner.

…

(3) A person or body appearing by a legal practitioner or agent is bound by the acts of that legal practitioner or agent.

(4) Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard. …”

The Lack of a Less Formal, Low Cost, Alternative within the Proposed SAT

7.49 In a hearing in March 2004, Hon Peter Foss MLC noted the absence from the proposed SAT model of a less formal and low cost avenue for those parties who wish to avoid lengthy legal proceedings:

“Hon PETER FOSS: One thing worries me. For people entering into litigation, it is like getting on a wild horse. It is very hard to get out of it. …One of the advantages of - I keep coming back to this - the Small Claims Tribunal is that you know before you start where you are going to end up. There will be a decision made which is not appealable except by way of prerogative writ on the basis of denial of

102 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT natural justice or excess of jurisdiction. You know there will not be lawyers there. It is very reassuring for people who might never want to go anywhere near any legal process to know that it will never get out of hand. Why can you not have in this process the capacity for somebody to say that he wants there to be no appeal rights, except on excess of jurisdiction and denial of natural justice, and no lawyers? If that were the case, at the first directions hearing the tribunal would either make that order and that is what happens, or it does not make the order and the person makes a decision then and there, right at the beginning, that he does not want to go any further. This does not take into account the psychology of the ordinary person; that is, that this is a terrible step to take and they just do not want to get started in it. I think you have to confer a real right of appeal, not one which is notional, which is academically lovely and which all the lawyers think is beautiful. You want one that actually appeals to the public, so they say that they can live with it and use it. Is there any reason for not having a request by a potential claimant right at the beginning that he would like this case to be non-appealable - with those exceptions - and that he would not like to be legally represented, and for him to get that order in a directions hearing, or not get it as the case may be, and for that to be final?

Ms Eckert: I do not think that is something I can answer. That is a completely fundamental shift from the Barker report.

Hon PETER FOSS: I know.

Ms Eckert: It is a completely different model from what we are talking about today.

Hon PETER FOSS: I understand it is a big shift. That is what appeals to me, and I am thinking about it, so you might like to think about it too. I am disturbed by this legislation, and particularly the concept that some quite simple rights are being unnecessarily legalised and complicated. It might be nice to think that people have an ultimate right to go to the High Court. It would be nice to know that we are all using the same administrative law and we are all following the same rules and a body of law is being built up. It is exciting for some people, but for Joe Bloggs it means nothing. He wants to know what he is letting himself in for.

Ms Eckert: I think it is pretty fundamental to remove anyone’s right to legal representation.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 103 Legislation Committee TWENTY-FOURTH REPORT Hon PETER FOSS: They are saying they do not want it. Should they not have the option of saying they do not want a legal person? Should they not be able to say that they do not want to end up fighting somebody who has Jackson, QC acting for them, because that really lifts the whole ante? What do you do? Go ahead and keep fighting on your own when you know you have the top QC in Australia against you, or do you get out? When does he get out? It would be rather nice to know at the very first directions hearing what he is letting himself in for. He can then make a decision. If people could argue and satisfy the tribunal that it should allow lawyers and appeals, everybody would know what the situation is.”194

7.50 The Committee also raised this issue with Mr David Forrester, Barrister:

“The DEPUTY CHAIRMAN: …Do you think that it would be of benefit for the proposed SAT to provide for an informal option where a matter may proceed, at the request of an applicant-complainant, by way of written submission alone, without legal representation and without a right of appeal from the SAT decision?

Mr Forrester: Sometimes yes, but very often at that level people want the opportunity to put their case personally to somebody who can give them a decision. This is particularly so I have found in the Equal Opportunity Tribunal.

Hon PETER FOSS: I am sorry to interrupt you, and I would like you to continue with that comment, but there does not necessarily have to be all three; it could be with or without legal representation or without right of appeal or any of them, could it not?

Mr Forrester: Yes, it would certainly work in some instances in which the issues between the two parties are well known and there is no dispute.

Hon PETER FOSS: Or they do not want to go on to an appeal because it would cost them too much.

Mr Forrester: Exactly. However, a large number of people at this base level simply want somebody to hear what they are saying. They do not feel confident that putting a written submission will be effective. They want to be able to have their say and for somebody to hear them and listen to them. Very often, even if they are found to be

194 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p30.

104 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT wrong, it is enough if they can get it off their chest. I had a recent matter in the Equal Opportunity Tribunal when one party simply wanted the other party to hear them say how unhappy they had been made as a result of the particular incident that had occurred. They wanted to get it off their chest. As soon as they got it off their chest, their claim for monetary compensation went way down.

Hon PETER FOSS: I would hate to throw the baby out with the bath water, but I agree totally. This is at the applicant’s request, and we would not have to have all three; in other words, a person could say that he wanted only unwritten submissions and not legal representation because it would end up costing too much, or he did not want there to be an appeal because how would he know that he would not end up in the High Court and he did not have the money. Therefore, an applicant could request any one or all of those three alternatives. If he wanted his day in court and simply to be heard, he could say that he wanted no legal representation and no appeal, and in that way he would know that he was not up for too much money, that he could put his own case over and that would be it, and he would not end up in the High Court.

Mr Forrester: Certainly. I would add one further possibility, which we practise in the Building Disputes Tribunal, which is that someone appears before a single member only and one hour is given for the discussion of the matter between parties, and a decision will be made. They are very minor matters. Certainly a previous President of the Equal Opportunity Tribunal - now Justice Johnson - said that it would be very useful to have that sort of thing in.”195

Proposed Amendments to the Taxation Administration Act 2003

7.51 In its Sixteenth Report the Committee examined the Taxation Administration Bill 2001 and related bills. In that report the Committee expressed concern that taxpayers should not be prevented from pursuing an appeal on a taxation matter due to cost, and so suggested that an avenue should be available to allow people to appeal without incurring excessive financial expense.196

7.52 The Committee recommended a number of amendments to the Taxation Administration Bill 2001, which were accepted and incorporated into the Taxation

195 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, pp5-6. 196 Western Australia, Legislative Council, Standing Committee on Legislation, Taxation Administration Bill 2001, Taxation Administration (Consequential Provisions) (Taxing) Bill 2001, Taxation Administration (Consequential Provisions) Bill 2001, Sixteenth Report, October 2002, p30.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 105 Legislation Committee TWENTY-FOURTH REPORT Administration Act 2003, that provided for certain relatively minor taxation appeals to be dealt with by the Small Claims Tribunal.197

7.53 Division 129 of Part 2 of the Conferral Bill proposes the amendment of the Taxation Administration Act 2003 so as to provide for all appeals under that Act to be dealt with by the SAT. Furthermore, cl 1259 of the Conferral Bill proposes to introduce a requirement in the Taxation Administration Act 2003 that, when dealing with matters brought under the Taxation Administration Act 2003, the SAT shall be constituted for certain specified matters by the President of the SAT, and for all other matters by a judicial member or a senior member who is a legal practitioner.

7.54 The Committee is concerned that Division 129 of Part 2 of the Conferral Bill is not consistent with the Committee’s recommendations in its Sixteenth Report.

7.55 The Committee draws to the attention of the Legislative Council the fact that the Committee’s following Recommendations 11 is dependent upon the amendments proposed in the Committee's Recommendation 12.

197 Ibid, pp30-31, and s 34, Taxation Administration Act 2003.

106 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT

Clause 1259

Page 572, line 7 — To insert after “(2)” —

“ or (2aa) ”.

Page 572, line 18 — To insert after “alone” —

“ unless subsection (2aa) applies ”.

Page 572, after line 18 — To insert the following subsections —

“

(2aa) A proceeding brought before the State Administrative Tribunal under this Act is included in the operation of section 91A of the State Administrative Tribunal Act 2003 if it is —

(b) a proceeding for the review of a directly reviewable decision; or

(c) a proceeding for the review of a decision of the Commissioner under section 47 in connection with extending time for payment of tax or approving payment of tax in instalments,

but the effect of a no appeals election made under that section in relation to the proceeding is modified as described in subsection (2ab).

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 107 Legislation Committee TWENTY-FOURTH REPORT

(a) certifies in writing that the question is significant for the protection of the revenue of the State; and

(b) agrees to indemnify each other party to the proceeding in respect of any cost involved in the appeal,

”.

Small Claims Tribunal

7.56 The Committee notes the model of the Western Australian Small Claims Tribunal (SCT) as a low cost, informal and efficient dispute resolution forum.

7.57 The SCT is established under the Small Claims Tribunal Act 1974.

7.58 The SCT resolves disputes between consumers and traders about the sale, supply or hire of goods and services where the amount in dispute is less than $6,000.00.198 It allows consumer/trader disputes to be resolved in a setting more informal than available in the Local Court.

7.59 Disputes are heard before a referee who is a legal practitioner or a barrister or solicitor of the Supreme Court of another State or a Territory.199

The cost of commencing proceedings in the SCT

7.60 The cost to lodge a claim at the SCT is $21, or $7 with a Health Care Card, Health Benefit Card or a War Widow Concession Fare Certificate.200

198 Department of Justice, 2004 Handbook: http://www.justice.wa.gov.au/portal/server.pt/gateway/PTARGS_0_2_303_0_0_47/http://justicecontent.e xtranet.justice.wa.gov.au/content/files/DoJ_Handbook.pdf, (current at July 28 2004). 199 Section 7, Small Claims Tribunal Act 1974. 200 Department of Justice, 2004 Handbook: http://www.justice.wa.gov.au/portal/server.pt/gateway/PTARGS_0_2_303_0_0_47/http://justicecontent.e xtranet.justice.wa.gov.au/content/files/DoJ_Handbook.pdf, (current at July 28 2004). 108 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT The SCT’s procedure

7.61 The SCT is constituted by a referee sitting alone.201

7.62 The main role of the referee is to bring the parties to a settlement that is acceptable to all parties involved. In instances where such an outcome is not achievable, the function of the referee is to make an order with respect to the issue in dispute or an order dismissing the claim.202

7.63 The transaction or dispute must have occurred within two years of the date on which the consumer lodges the claim.203

7.64 In order to commence proceedings, the consumer must lodge the prescribed form with the registry and pay the prescribed fee.204 Importantly, the register and every clerk of the court must give their assistance to a consumer when they seek assistance in completing the form.205

7.65 Except in exceptional circumstances, parties are not permitted to have a lawyer to represent them in such proceedings:

• An agent will be appointed if the SCT feels that one should be appointed as a matter of necessity.206

• The appearance of a lawyer is not permitted unless all parties to the proceedings agree and the SCT is satisfied that the appearance of a lawyer will not unfairly disadvantage the other party involved.207

7.66 In terms of the taking of evidence, the SCT is not bound by rules or practice as to evidence. However, it may inform itself on any matter in such manner as it thinks fit.208

7.67 Orders of the SCT can:

• make the trader pay money, repair faulty goods or rectify services, deliver goods, or return goods;

201 Section 11(1), Small Claims Tribunal Act 1974. 202 Ibid, ss 10(1) and (2). 203 Ibid, s 16(1). 204 Ibid, s 24(1). 205 Ibid, s 24(2). 206 Ibid, s 32(2). 207 Ibid, s 32(3). 208 Ibid, s 33(3).

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 109 Legislation Committee TWENTY-FOURTH REPORT • relieve the consumer from having to make full or part payment;

• make the consumer pay money or return goods to a supplier; and

• dismiss the case.209

7.68 Note that under section 34A of the Act the SCT may be required to give written reasons for its orders.

7.69 Costs are not awarded to any party involved in the dispute. However, if the SCT believes that injustice would be done to a party if costs of the proceeding were not allowed to that party, then the SCT can make an order for costs.210

7.70 Note that there are instances in which a claim does involve a dispute between a consumer and trader with the amount in dispute less than $6,000.00, however the SCT believes that the issue in dispute is so complex that the claim should be determined by a court.211

7.71 In terms of enforcement of the SCT’s orders, in instances where payment of money as determined by an order is not made, the person to whom payment is owed can enforce this order by filing the relevant documentation in the Local Court, free of charge.212

The timeframe in which matters are dealt with by the SCT, including any backlog of cases

7.72 The Department of Justice has published the following statistics:

Table 7.1 Timeframe for Dealing with Cases in the Small Claims Tribunal213

Actual Actual Actual Actual 01-02 00-01 99-00 98-99

Case finalisation ratio

Finalised before trial 30% 27% 30% 26%

209 Department of Justice, 2004 Handbook: http://www.justice.wa.gov.au/portal/server.pt/gateway/PTARGS_0_2_303_0_0_47/http://justicecontent.e xtranet.justice.wa.gov.au/content/files/DoJ_Handbook.pdf, (current at July 28 2004). 210 Sections 35 (1) and (2), Small Claims Tribunal Act 1974. 211 Ibid, s 17A(1). 212 Ibid, s 22. 213 Department of Justice, 2004 Handbook: http://www.justice.wa.gov.au/portal/server.pt/gateway/PTARGS_0_2_303_0_0_47/http://justicecontent. extranet.justice.wa.gov.au/displayPage.asp?structureID=25289764&resourceID=79279395, (current at July 28 2004).

110 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT

Actual Actual Actual Actual 01-02 00-01 99-00 98-99

Finalised by trial 70% 73% 70% 74%

Percentage of cases finalised 98% 98% 100% 100% within the standard of 52 weeks

Backlog 215 131 49 -

Additional case analysis information

Cases received 1,377 1,596 1,672 1,667

Cases finalised 1,461 1,496 1,427 1,457

Cases still to be dealt with 527 611 451 482

Rights of appeal from the SCT

7.73 The order made by the SCT is final and binding on all parties involved.214

7.74 Decisions made by the SCT can only be reviewed by the Supreme Court, which must be satisfied that the SCT had no jurisdiction to hear the claim or there was a denial of natural justice.215

THE COMMITTEE’S OBSERVATIONS

7.75 The Committee is of the view that the proposed SAT should provide applicants with the option to elect to proceed by a less formal procedure for minor matters, whereby the applicant may forego their right to legal representation and any right of appeal from a decision of the SAT.

214 Section 18, Small Claims Tribunal Act 1974. 215 Ibid, s 19.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 111 Legislation Committee TWENTY-FOURTH REPORT

Page 54, after line 15 — To insert —

“

91A. Minor matters procedure

(1) In this section —

“legally qualified person” means —

(a) a legal practitioner or a person entitled to practise as a legal practitioner in any other place; or

“minor proceeding” means —

(a) a proceeding in which a monetary value can be ascribed to the matter in issue other than —

(i) a proceeding in which that monetary value exceeds the specified amount;

(ii) a proceeding dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act; or

(iii) a proceeding of a kind that an enabling Act excludes from the operation of this section;

(b) a proceeding of a kind that the regulations include in the operation of this section; or

112 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT

“specified amount” means $7 500 and, on and after 1 January 2009, means $10 000.

(2) At or before an initial directions hearing in a minor proceeding the applicant may make one or more of the following elections in relation to the proceeding —

(a) a no legal representation election;

(b) a no hearings election;

(3) If the applicant makes a no legal representation election, a party —

(a) cannot be represented by a legally qualified person; and

(b) cannot be represented by any other person except as authorised by section 39(1)(a) to (e).

(4) If the applicant makes a no hearings election, the Tribunal is to conduct the proceeding in accordance with section 60(2).

(5) If the applicant makes a no appeals election, any decision in the proceeding is final and is not subject to appeal or review whether under Part 5 or otherwise.

”.

REPRESENTATION OF PARTIES BEFORE THE SAT

Representation by Non-Lawyers

7.76 Clause 39 of the SAT Bill establishes restrictions on whom may represent a party in proceedings before the SAT:

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 113 Legislation Committee TWENTY-FOURTH REPORT “(1) At the hearing of a proceeding before the Tribunal, or a directions hearing or other procedural hearing or a compulsory conference or mediation, a party to the proceeding may appear in person or may be represented by another person, but a party cannot be represented by a person other than a legal practitioner unless —

(a) the party is a body corporate and the person is a director, secretary, or other officer of the body corporate;

(b) the party is a public sector body as defined in section 3(1) of the Public Sector Management Act 1994 and the person is a public sector employee authorised by the party to represent it;

(c) the party is a party in the course of or because of the performance, or purported performance, of his or her duties as a public sector employee and the person is another public sector employee authorised by the party to represent him or her;

(d) the Tribunal agrees to that person representing the party, and any conditions imposed by the Tribunal are satisfied; or

(e) the regulations or the rules authorise it.

(2) This section does not authorise a person who could not otherwise lawfully demand or receive any fee or reward for representing a party to demand or receive any fee or reward.

(3) A person who has been struck off the roll of practitioners of the Supreme Court cannot represent a party.

(4) The regulations or the rules may prevent specified persons, or persons of a specified class, from representing a party.”

7.77 The Law Society of New South Wales was supportive of the inclusion of the ‘right’ to legal representation in cl 39 of the SAT Bill. It noted that this provision recognizes the possible complexity of the matters that will come before the SAT, and will lead to legal practitioners developing an expertise in administrative law that will assist the SAT in expediting those proceedings before the SAT.216

216 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p4.

114 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT 7.78 The Institute of Chartered Accountants in Australia expressed concern to the Committee that cl 39 of the SAT Bill is unduly restrictive in limiting the automatic right of representation of parties before the SAT to legal practitioners. The following reasons were provided to the Committee as to why the automatic right of appearance for lawyers should be extended to other professional advisers, specifically in relation to taxation matters:217

• the decision as to who should represent a party should be left to the parties themselves;

• as the purpose of the proposed SAT is to be more inquisitorial and less adversarial than traditional courts, the focus in determining suitable representatives should be knowledge of the relevant facts and expertise in the issues raised; and

• the most informed person on the matter in dispute may be the specialist who advised the applicant.

7.79 The teaching profession is not covered by the SAT Conferral Bill, although the Committee understands that there is a possibility that disciplinary matters involving the teaching profession may sometime in the future be included within the jurisdiction of the SAT. Given that possibility, the State School Teachers Union of Western Australia expressed concern at cl 39 of the SAT Bill:

“I am not saying there are not times at which one would choose to support one’s member by having a legal practitioner represent them. It seems to me that the way this legislation is written is about where you go in the first instance, albeit that the tribunal itself can agree under clause 39(1)(d) to have somebody other than a legal person representing a person. We are appealing for something that will put directly into the legislation the capacity for someone else other than a legal practitioner, so that it is not simply left to the discretion of the tribunal itself to determine who will be representing you if you are not representing yourself. For us, as a particular body that represents teachers, there are considerable potential ramifications in relation to costs associated with that.”218

7.80 Furthermore, the State School Teachers Union of Western Australia notes that non- legal representation should extend beyond industrial advocates, as parties may prefer

217 Mr Constantine Abbott, Regional Manager, Western Australia, Institute of Chartered Accountants in Australia and Mr Scott Grimley, Principal - Taxation, Ernst & Young (appearing on behalf of the Institute of Chartered Accountants in Australia), Transcript of Evidence, March 17 2004, p2. 218 Ms Anne Gisborne, Senior Vice President, State School Teachers Union of Western Australia, Transcript of Evidence, March 17 2004, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 115 Legislation Committee TWENTY-FOURTH REPORT to receive representation and specialist advice from persons from a range of disciplines.219

7.81 The Government has provided the following rationale for cl 39:

“In order for the tribunal to ensure a fair, speedy, low cost and informal hearing of an application, the tribunal must have the ability to control the hearing and the conduct of persons before it. As part of that, clause 39 of the SAT Bill enables the tribunal to appropriately exercise a degree of supervision over those who appear as agents for others before it. It would be expected, as is the present practice in most of the boards and tribunals whose jurisdiction will come in to SAT in whole or in part, that unless there is a good reason to the contrary, agents may appear for parties in SAT.

However, if the approach to the supervision were reversed so that an agent could appear unless the tribunal ordered otherwise, the tribunal would have, in practice, very little control over the question of appearances.

It is appropriate to ensure that the persons or category of persons who wish to appear as an agent for a party explain to the tribunal the basis upon which they seek to do so. …

Further, if it were reversed, so that anyone could appear unless the tribunal ordered otherwise, substantial amounts of time would be taken up by the tribunal looking at the appropriateness of those appearing before it to ensure that unscrupulous people or those who would not otherwise be entitled to appear because of criminal or other conduct, are not appearing as agents for people.”220

7.82 It was also stressed to the Committee that:

“Lawyers are officers of the Supreme Court and as such are subject to the supervision of the Court and to disciplinary outcomes if they do not act appropriately and in their client’s best interests. Lawyers are aware that certain conduct is not permitted. They are also skilled at identifying the relevant issues in a matter. Lawyers are familiar with acceptable practices and are subject to a body of rules which will regulate their behaviour before SAT. This is to ensure the orderly, fair and efficient disposition of matters before the tribunal. If anyone

219 Ibid, p3. 220 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, pp10-11.

116 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT could appear on behalf of another as of right, there would be a group of agents appearing who are not subject to the controls and rules that lawyers are of necessity subject to, and that ultimately aid the fair conduct of a hearing.

… In summary, it makes good sense in terms of ensuring the efficient operation of SAT that persons other than lawyers who wish to appear on behalf of a party should have to explain the basis upon which they seek the entitlement to appear as an agent.”221

7.83 The Law Society of Western Australia also noted that it would be undesirable to establish two classes of representation before the proposed SAT:

“The difficulty we see is a difficulty with two classes of representation. Lawyers have certain obligations: there are fiduciary obligations imposed by the laws; professional indemnity obligations; educational requirements to get into the profession; and, as at 1 April 2005, there will be mandatory continuing legal education. Standards are in place, albeit that we recognise that not every lawyer meets the standards appropriately. The difficulty with other individuals representing people is that they are not subject to those obligations. We understand and accept that union advocates particularly have been involved in the industrial relations and employment area appropriately and ostensibly for many years. The sort of work in the Industrial Relations Commission is different from the work envisaged in the State Administration Tribunal. Although, for example, we do not suggest today that union advocates should not be allowed to continue their work in the Industrial Relations Commission, we see dangers with unqualified people crossing over to other areas.”222

7.84 The Committee expresses the view that the right of representation before the proposed SAT should be extended to include non-legal representation where the representative has some experience relevant to the particular matter, other than the experience of having appeared before the SAT on a previous occasion.

221 Ibid, p11. 222 Ms Clare Thompson, Member, Law Society of Western Australia, Transcript of Evidence, March 23 2004, p11.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 117 Legislation Committee TWENTY-FOURTH REPORT

Page 28, after line 13 — To insert —

“

(ca) the person has particular knowledge or experience relevant to the matter that is being dealt with (other than experience obtained as or representing a party in another Tribunal proceeding);

”.

Representation of Incapacitated Persons

7.85 Under cl 40 the SAT may appoint a representative for an unrepresented party or a litigation guardian for a child. The Committee is concerned that cl 40 of the SAT Bill does not address the specific problem of representation for persons who are of age but lack legal capacity to represent themselves (that is, non sui juris). A comparison of cl 40 with the equivalent provision in the Administrative Decisions Tribunal Act 1997 (NSW) may demonstrate the Committee’s concern:

7.86 Clause 40 of the SAT Bill provides:

“40. Tribunal may appoint representative or guardian

(1) If a party is unrepresented, the Tribunal may appoint a person to represent the party.

(2) If a child is a party or potential party to a proceeding or proposed proceeding, the Tribunal may appoint a litigation guardian in accordance with the rules to conduct the proceeding on the child’s behalf.”

7.87 Whereas, s 71 of the Administrative Decisions Tribunal Act 1997 (NSW) provides:

“71 Representation of parties

(1) A party to proceedings before the Tribunal may:

118 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT (a) appear without representation, or

(b) be represented by an agent, or

(c) if the party is an incapacitated person--be represented by such other person as may be appointed by the Tribunal under subsection (4).

(2) Despite subsection (1), the Tribunal may order that the parties to the proceedings before it may not be represented by an agent of a particular class for the purpose of the presentation of oral submissions to it (whether in relation to the whole proceedings or any part of the proceedings) if the Tribunal considers it appropriate to do so.

(3) In making an order under subsection (2), the Tribunal is to have regard to the following matters:

(a) the complexity of the matter and whether it involves a question of law,

(b) whether each party has the capacity to present the party's case by oral submissions without representation,

(d) the type of proceedings,

(e) such other matters as the Tribunal considers relevant.

(4) If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.

(4A) Without limiting subsections (1) and (4), the Tribunal may:

(a) in the case of an external appeal made under section 67A of the Guardianship Act 1987 -- appoint any person the Tribunal thinks fit to represent a party to the proceedings who:

(i) is a protected person within the meaning of that Act, or

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 119 Legislation Committee TWENTY-FOURTH REPORT (ii) is a person in respect of whom a guardianship order (within the meaning of that Act) has been made or in respect of whom an application for such an order has been refused, and

(b) in the case of an external appeal made under section 21A of the Protected Estates Act 1983 -- appoint any person the Tribunal thinks fit to represent a party to the proceedings who is a protected person within the meaning of that Act.

(5) Subsection (2) does not apply to proceedings before an Appeal Panel of the Tribunal.

(6) Any person appearing before the Tribunal may use the services of an interpreter unless the person can understand and speak the English language sufficiently to enable the person to understand, and to make an adequate reply to, questions that may be put to the person.

(7) In this section:

incapacitated person means:

(a) a minor, or

(b) a person who is totally or partially incapable of representing himself or herself in proceedings before the Tribunal because the person is intellectually, physically, psychologically or sensorily disabled, of advanced age, a mentally incapacitated person or otherwise disabled, or

interpreter includes a person who interprets signs or other things made or done by a person who cannot speak adequately for the purposes of giving evidence in proceedings.”

7.88 In response to the Committee’s concerns as to the wording of cl 40(1), the Government advised:

120 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT “[W]hen drafting the legislation we took the view that clause 40(1) was adequate to cover the situation of a person under incapacity (and other vulnerable persons) and that the Tribunal could rely on that provision to appoint a person to represent an incapacitated person (or person non sui [juris]). The clause needs to be looked at in its context: there is no other provision relating to representation of incapacitated persons and it appears with sub clause (2), specifically relating to children.

There might be other situations where the Tribunal is of the view that it is in the best interests of a person to be represented and this clause could be relied on then. It gives SAT the power to order representation of a person whenever it is appropriate, either in the case of a vulnerable person or in other relevant circumstances that might arise.

However, where one party is at a severe disadvantage because they are unrepresented, the Tribunal would not need to rely on this clause to enable it to identify a person to represent the party on a pro bono basis. The Tribunal would have that ability without specific legislative provision.”223

Page 28, line 28 — To delete “child” and insert instead —

“ person who is not of full legal capacity ”.

Page 28, line 30 — To delete “child’s” and insert instead —

“ person’s ”.

STANDING FOR THIRD PARTIES

7.89 Neither the SAT Bill nor the Conferral Bill establish any new rights of standing for third parties in the various jurisdictions to be incorporated in the proposed SAT.

223 Letter from Ms Judy Eckert, Barrister, Instructing Officer on the State Administrative Tribunal Legislation, June 17 2004, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 121 Legislation Committee TWENTY-FOURTH REPORT 7.90 Clauses 36 to 38 of the SAT Bill state:

“36. Parties

(1) A person is a party to a proceeding before the Tribunal if the person is —

(a) the applicant;

(b) a person joined under section 38 as a party to the proceeding;

(d) specified by this Act or the enabling Act to be a party to the proceeding.

(2) If the proceeding is in the Tribunal’s review jurisdiction, the decision-maker is also a party.

(3) In a proceeding to which a decision-maker is a party, the official description rather than the personal name of the decision-maker is to be used so far as is practicable.

37. Intervening in proceeding

(1) The Attorney General may, on behalf of the State, intervene in a proceeding of the Tribunal at any time.

(2) The Commissioner for Fair Trading referred to in section 15 of the Consumer Affairs Act 1971 may, on behalf of the State, intervene at any time in a proceeding if the Minister responsible for the administration of that Act is responsible for the administration of the enabling Act.

(3) The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit.

38. Joining as a party

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that —

(a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding;

122 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT (b) the person’s interests are affected by the proceeding; or

(2) The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative.”

7.91 Ms Leigh Simpkin, Principal Solicitor, Environmental Defender’s Office WA (Inc) (EDO), advised the Committee of her organization’s concerns at the discretion to be vested in the proposed SAT to allow third parties to join proceedings in cl 38(1)(c):

“If such a discretion were enacted, SAT would still have a discretion to decline status as a third party to any person claiming to represent some relevant aspect of the public interest on the ground that the person was no more than a bystander; in other words, that the person had no special public interest over and above any other member of the public. That is not what we want to see. We do not want people having to claim that they are some peak body or that they were not just some neighbourhood group that got together to combat a particular problem. Those neighbourhood groups would be kept out by this kind of test. You would only get the peak bodies - the urban bushland councils and the conservation councils - being able to come in under this test. My concern is that SAT could exercise its discretion to decline to grant standing to someone on public interest grounds, even if SAT acknowledged that the person represented some relevant aspect of the public interest; in other words, the peak bodies could also get turned down, ironically, on public interest grounds. Therefore, the EDO submits that it would be preferable to explicitly grant access to SAT to any public interest person or group.”224

7.92 The EDO submitted that cl 38 be amended by the addition of a new subclause 38(1)(c) that provides for any person “representing some relevant aspect of the public interest” to be joined in relation to any planning or environmental appeal.225

7.93 The Conservation Council of Western Australia Inc also expressed the view that third parties with an interest in the environment should be able to both commence and join appeals in relation to certain administrative decisions in the proposed SAT, such as those relating to the issuing of licences or works approvals under the Environmental Protection Act 1986 or development approvals of the Western Australian Planning

224 Ms Leigh Simpkin, Principal Solicitor, Environmental Defender’s Office WA (Inc), Transcript of Evidence, March 18 2004, p2. 225 Submission No 38 from Environmental Defender’s Office WA (Inc), November 14 2003, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 123 Legislation Committee TWENTY-FOURTH REPORT Commission or local governments.226 The Conservation Council of Western Australia Inc went on to note that:

“[E]ach other State or Territory provides for some form of third party appeal against development decisions. Western Australia is therefore the only State to retain a “developer’s only” development appeals system and deny third parties rights to appeal.”227

Undertakings as to damages

7.94 Closely related to the issue of third party appeal rights is the concern expressed by environmental groups as to the discretion imposed in the proposed SAT by cl 89 to require parties to make an undertaking as to costs or damages when seeking an injunction from the SAT. Such groups believed that persons seeking injunctions on public interest environmental grounds should be exempt from providing an undertaking as to costs or damages.

7.95 As the EDO stated in its submission:

“In relation to public interest environmental groups, it is submitted the SAT Bill should specifically provide that it is not necessary for the SAT to require undertakings as to damages in relation to injunction applications. In situations where the status quo involves the protection of the environment, it prevents a disbenefit for the whole community, and no indemnification should be required. Further, an undertaking as to damages presents a significant hurdle to a public interest environmental group.”228

7.96 This view was also supported in the submission of the Conservation Council of Western Australia Inc.229

7.97 A majority of the Committee (Hons Jon Ford, Kate Doust, Peter Foss and Bill Stretch MLCs) do not agree with the submissions arguing for the inclusion of third party appeals in the SAT Bill and the removal of undertakings as to damages in relation to applications for injunctions.

7.98 Hon Giz Watson MLC, however, supports the arguments raised in the above submissions.

226 Submission No 41 from Conservation Council of Western Australia Inc, November 14 2003, p3. 227 Ibid. 228 Submission No 38 from Environmental Defender’s Office WA (Inc), November 14 2003, p2. 229 Submission No 41 from Conservation Council of Western Australia Inc, November 14 2003, pp4-5.

124 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT

EXPERT ASSISTANCE AND SPECIAL REFEREES

7.99 Clause 64 provides that the SAT may appoint a legal practitioner or any other person with relevant knowledge or experience to assist the Tribunal either by the provision of professional services or the giving of expert evidence. The SAT may order a party to pay or contribute to the costs of such assistance.

7.100 Under cl 65 the SAT may refer any question arising in a proceeding to a ‘special referee’ to either decide the matter or provide an opinion in relation to the matter. Once again, the SAT may order a party to pay or contribute to the costs of obtaining the services of a special referee.

7.101 The Committee is concerned that parties may be required to pay for the SAT’s use of external experts in the carrying out of its functions. The Committee is also concerned by the lack of clarity as to the effect of a special referee’s decision on the SAT. The Committee is of the view that the SAT should have the express option of accepting or rejecting the decision of an external special referee.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 125 Legislation Committee TWENTY-FOURTH REPORT

Page 42, after line 23 — To insert —

“

(3) Subsection (2) does not apply in relation to a party unless, before obtaining the assistance, the Tribunal advised the party of —

(a) its intention to obtain the assistance;

(b) the likely costs of obtaining the assistance; and

and gave the party an opportunity to be heard on the matter.

”.

Page 42, lines 29 to 31 — To delete the lines and insert instead —

“

(2) The Tribunal may either adopt a special referee’s decision or opinion, in whole or in part, or reject it.

”.

126 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT

WHETHER THE PROPOSED SAT MODEL HAS SUFFICIENT REGARD TO THE ROLE OF THE OMBUDSMAN IN RESOLVING DISPUTES ARISING FROM ADMINISTRATIVE DECISIONS

7.102 Clause 50 of the SAT Bill provides that:

“50. More appropriate forum

(1) The Tribunal may, at any time, make an order striking out all, or any part, of a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person.

(2) The Tribunal’s power to make an order under subsection (1) is exercisable only by a judicial member.

(3) If the Tribunal makes an order under subsection (1), it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so.

(4) The Tribunal may make an order under subsection (1) on the application of a party or on its own initiative.”

7.103 In his submission to the Committee, Mr L B Marquet, argued that cl 50 of the SAT Bill does not go far enough to “achieve workable cohabitation” between the proposed SAT and the Parliamentary Commissioner for Administrative Investigations (Ombudsman).230 Concern was expressed at the impact that the proposed SAT may have on the Ombudsman’s investigations, and he drew the Committee’s attention to s 39 of the Administrative Decisions Tribunal Act 1997 (NSW), which states:

“39 Inter-relationship between Tribunal and Ombudsman

(1) The President and the Ombudsman may enter into arrangements regarding any of the following:

(a) matters that the Tribunal will refer to the Ombudsman where it considers that the matter can be the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974 and that it would be more appropriate for the Ombudsman to deal with the matter,

(b) matters that the Ombudsman will refer to the Tribunal where the Ombudsman considers that the matter can be the subject of an application for a review to the Tribunal

230 Submission No 47 from Mr L B Marquet, May 17 2004, p6.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 127 Legislation Committee TWENTY-FOURTH REPORT and that it would be more appropriate for the Tribunal to deal with it,

(c) matters that are the subject of an application to the Tribunal and that are also the subject of a complaint, inquiry, investigation or other action under the Ombudsman Act 1974;

(d) the co-operative exercise of the respective functions of the Tribunal and Ombudsman.

(2) The President and the Ombudsman are jointly to cause notice of any arrangements entered into under this section to be published in the Gazette as soon as is practicable after they are entered into. However, a failure to publish any such arrangements does not affect their validity.

(3) The Tribunal and the Ombudsman are empowered to exercise their functions in conformity with any relevant arrangements entered into under this section.

(4) An application may be made to the Tribunal for a review of a reviewable decision whether or not a complaint has been made to the Ombudsman in relation to the decision.

(5) Without limiting subsection (3):

(a) the Ombudsman may (despite anything in the Ombudsman Act 1974) decline, discontinue or defer a complaint made under that Act to give effect to an arrangement entered into under this section, and

(b) the Ombudsman may (despite any provision of the Ombudsman Act 1974 but in conformity with this Act) disclose any information to the Tribunal duly obtained by the Ombudsman in relation to any matter referred to the Tribunal to give effect to an arrangement entered into under this section, and

(c) the Tribunal may dismiss, adjourn or stay proceedings for an application for the review of a reviewable decision to give effect to an arrangement entered into under this section, and

128 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT (d) the Ombudsman may entertain any complaint under the Ombudsman Act 1974, or the Tribunal may entertain any application for a review of a reviewable decision, duly made by a person on the basis of a referral under arrangements entered into under this section.”

7.104 The subsequent arrangements entered into between the ADT and the New South Wales Ombudsman were published in the New South Wales Gazette on September 24 1999, pp9207-9208.

7.105 The Committee sought the view of the Ombudsman as to whether, in light of the New South Wales legislation, cl 50 of the SAT Bill is sufficient to accommodate a suitable working relationship between the proposed SAT and the Office of the Ombudsman.

7.106 The Ombudsman noted that the advice to her from the State Solicitor was that the words “any other person” in cl 50(1) would be interpreted as encompassing only persons “in the nature of a tribunal or court which have the power to determine substantive rights”, and therefore not the Ombudsman.231

7.107 The Ombudsman advised the Committee that it was her understanding that the formal arrangements between the ADT and New South Wales Ombudsman had rarely been invoked as there is very little overlap in jurisdiction (with most potential overlap being in the areas of freedom of information and community services). Ms O’Donnell noted that, in practice, more informal methods of referral between the two bodies are routinely used.232

7.108 The Ombudsman was of the view that formal cooperative arrangements enshrined in legislation would not be necessary with respect to the anticipated future working relationship between her office and the proposed SAT. The Ombudsman advised that:

“I do believe that informal arrangements must as a priority be set up between my Office and that of the SAT to act as a transparent, efficient and effective mechanism for ensuring that transfers or referrals occur expeditiously and that the parties affected receive a clear explanation of reasons for a referral. This is where I have drawn on my recent experience in developing a Memorandum of Understanding (“MOU”) with the Commissioner of the [Corruption and Crime Commission]…. I would intend building on this experience in setting up appropriate arrangements with the SAT.

…I believe it is important that the MOU or protocol between my Office and the SAT take into account circumstances where an

231 Letter from Ms Deirdre O’Donnell, Ombudsman, June 17 2004, p2. 232 Ibid, p5.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 129 Legislation Committee TWENTY-FOURTH REPORT application before SAT falls outside SAT’s jurisdiction but is within the jurisdiction of the Ombudsman or where an application is, or is likely to be, dismissed on legal grounds but nevertheless raises issues of fairness or propriety which bear further investigation from an administrative viewpoint.”233

7.109 The Committee notes the Ombudsman’s advice, but queries the legal capacity of the SAT to enter into such a proposed protocol or memorandum of understanding. Even if the formal arrangements between the ADT and the New South Wales Ombudsman are rarely used, they still establish an appropriate legal basis and legitimacy for communication and cooperation between those two bodies.

233 Ibid, p3.

130 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 7: The Structure of the Proposed SAT

Page 95, before line 7 — To insert —

“

164A. Arrangements with Parliamentary Commissioner

(1) In this section —

“Parliamentary Commissioner” means the Parliamentary Commissioner for Administrative Investigations appointed under the Parliamentary Commissioner Act 1971.

(2) The President and the Parliamentary Commissioner may enter into arrangements regarding the following —

(a) the co-operative exercise of the respective functions of the Tribunal and the Parliamentary Commissioner;

(b) measures to be taken by the Tribunal and the Parliamentary Commissioner to increase public awareness of the functions of the other.

(3) The Tribunal and the Parliamentary Commissioner are authorised to perform their functions in conformity with any relevant arrangements entered into under subsection (2).

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 131

CHAPTER 8 THE POWERS OF THE PROPOSED SAT

8.1 Divisions 6 to 8 of Part 4 of the SAT Bill contain broad powers for the proposed SAT, including the power to:

a) grant injunctions (cl 89);

b) make declarations (cl 90);

c) enter and inspect (cl 92);

d) punish persons for failing to comply with a decision or summons cll 94-97;

e) punish for misbehaviour and to refer a contempt of the SAT to the Supreme Court (cll 98-99); and

f) arrest (cl 101).

8.2 Similar powers are held by the VCAT. The Honourable Mr Justice Stuart Morris, President of VCAT, stated to the Committee that these are valuable powers which, although used sparingly, are essential to the authority of the VCAT and its ability to provide just outcomes and practical remedies.234

FAILURE TO COMPLY WITH A DECISION OF THE PROPOSED SAT

8.3 Clause 94 of the SAT Bill states that:

“94. Failing to comply with decision

(1) A person who fails to comply with a decision of the Tribunal commits an offence.

Penalty: $10 000.

(2) Subsection (1) does not apply if, or to the extent that, the decision is a monetary order.

(3) If the Tribunal made the decision without giving a person an opportunity to be heard, subsection (1) only applies to that person on

234 Letter from the Honourable Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, July 22 2004, pp1-2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 133 Legislation Committee TWENTY-FOURTH REPORT the person being given personally or in accordance with subsection (4) —

(a) a copy of the decision that a judicial member or the executive officer has certified to be a true copy; and

(b) a copy of this section.

(4) If the Tribunal is satisfied that it is not possible or appropriate for a person to be personally given the documents referred to in subsection (3), the Tribunal may specify another method for service of the documents on the person under that subsection.”

8.4 The Law Society of Western Australia expressed concern that cl 94(1) was too widely drawn:

“No court in this State presently has a power of this nature and breadth. At the least it ought to be amended to exclude interlocutory orders. Ideally it ought to be deleted. The ill that this clause aims to deal with is more appropriately dealt with by procedural rules (in respect to most failures to comply that can be envisaged) or, in the case of more serious matters, by the contempt powers under proposed clause 99 of the SAT Bill.”235

8.5 The Committee sought the Government’s advice as to what types of decisions it was envisaged that cl 94 of the SAT Bill would apply. The Committee expressed the view that the contempt provision in cl 99 of the SAT Bill should be a sufficient penalty power to deal with any significant issues of non-compliance with the SAT’s decisions. The Committee also sought examples of similar penalty provisions that are currently applicable to tribunals and other bodies to be incorporated within the proposed SAT. The Government responded to the Committee’s above queries with the following advice:

“The contempt power would only be used in extreme cases.

Clause 94 would be relied on where proceedings for contempt, which can result in imprisonment, are not warranted. But strong enforcement provisions are necessary to ensure due respect for the tribunal and its processes. It will also ensure that proceedings do not have to be abandoned because a witness refuses to appear or a party refuses to abide by a decision of the tribunal. I understand that this will be a particularly useful provision in the jurisdiction of the current commercial tribunal.

235 Submission No 36 from The Law Society of Western Australia, November 11 2003, p6.

134 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT Some examples of similar powers are in section 130 of the Equal Opportunity Act 1984 – see also sections 155, 157, 158 and 159 of that Act; sections 19 and 20 of the Racing Penalties (Appeals) Act 1990; section 16 Builders Registration Act 1939 [and regulation 9 of the Retirement Villages Regulations 1992].”236

8.6 The Committee notes the following comments in Pizer’s Annotated VCAT Act with respect to the equivalent power of the VCAT (s 133, Victorian Civil and Administrative Tribunal Act 1998 (Vic)):

“Section 133 provides that a person who does not comply with a non- monetary order is guilty of a criminal offence. …

It is submitted that to elevate non-compliance with any non-monetary order of the VCAT to the status of a criminal offence is ill-considered and very undesirable from a civil liberties point of view. It also makes non-monetary orders of the VCAT more potent than non- monetary orders of the Supreme Court and runs counter to the VCAT’s character as an informal and fair body…”237

236 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, p6. 237 Jason Pizer, Pizer’s Annotated VCAT Act, Second Edition, JNL Nominees Pty Ltd, Melbourne, 2004, p459.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 135 Legislation Committee TWENTY-FOURTH REPORT

Page 57, after line 10 — To insert —

“

(2a) Subsection (1) does not apply in relation to a decision unless —

(a) the Tribunal, in the decision, declares that subsection (1) applies; or

(b) after a person fails to comply with the decision, the Tribunal makes an order declaring that subsection (1) applies and the failure continues after notice of that order is served on the person.

”.

POWERS OF ENTRY AND INSPECTION

8.7 Clause 92 of the SAT Bill provides the following wide powers of entry and inspection for the SAT:

“92. Entry and inspection

(1) If the presiding member considers it desirable for the purposes of a proceeding, the Tribunal may —

(a) enter and inspect any place, building, vehicle, vessel or other thing either in the presence of, or without, the parties;

(b) authorise a member of staff of the Tribunal or other person to enter and inspect any place, building, vehicle, vessel or other thing for the purpose of preparing a report to the Tribunal; or

136 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT give a person who is to give evidence in the proceeding reasonable access to the place, building, vehicle, vessel or other thing.

(2) If land or a building is occupied by a person who is not a party, a power of entry under subsection (1)(a) or (b) cannot be exercised unless —

(a) the occupier has consented to the entry;

(b) notice of the entry has been given to the occupier at least 2 days before the day on which the entry is made; or

(3) A power of entry and inspection under subsection (1)(a) is exercisable only by all of the sitting members together, unless the presiding member directs otherwise.

(4) A power of entry under subsection (1)(a) or (b) may be exercised at any reasonable time.

(5) A person commits an offence if the person —

(a) obstructs or hinders the exercise by a person of a power given by this section; or

(b) refuses access to any place, building, vehicle, vessel or other thing to a person seeking access in order to exercise a power of entry and inspection under this section.

Penalty: $5 000.”

8.8 Ms Eckert advised the Committee that cl 92 is a procedural provision that is necessary for the proper functioning of the proposed SAT:

“SAT is not an investigative body and the powers in clause 92 need to be seen in that context: they facilitate proceedings/inquiry and are a ‘standard court viewing provision’ (Parliamentary Counsel). … The powers given under clause 92 must be viewed as being of an exceptional nature to be used carefully and rarely … Ensuring the

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 137 Legislation Committee TWENTY-FOURTH REPORT careful protection of people’s rights is one of the reasons that SAT is to have judicial leadership.”238

8.9 The Committee queried the purpose of cl 92 of the SAT Bill in the context of an administrative tribunal during its hearing with representatives of the Law Society of Western Australia:

“Hon PETER FOSS: …Clause 92 is the Power of entry and inspection. We asked why it needs to be included in the legislation and were told it is because everybody else has it, which is not a good reason. We were also told that it would be used only as a procedural tool. I am not sure what sort of procedural tool it is. It seems to be a fairly blunt tool. I cannot understand why it has been included. … The explanation that it is a procedural tool is not much of an explanation.

Ms Thompson: It could be useful in the disciplinary area. My experience with the Nurses Board of WA and the Legal Practice Board of Western Australia is that there are occasions in which parties refuse to cooperate in disciplinary hearings and do not hand over relevant information.

Hon PETER FOSS: They are different; they are almost a criminal jurisdiction.

Ms Thompson: Maybe the legislation needs to give particular powers in the disciplinary areas. Maybe that is the situation for which it is intended to be used.

Hon PETER FOSS: There seems to be a lot in the legislation that is procrustean. In other words, departments have been asked what power they need for this or that and then everybody gets everything. In a different context it appears to be excessive. I suppose that you are right. In a disciplinary proceeding, a body might want that power. Otherwise, I cannot see why it would.

Ms Thompson: If there is a power to issue subpoenas, which I understand there is, that type of power would not be needed in a review of an administrative decision.

Hon PETER FOSS: It is an investigative power.

Ms Thompson: Essentially that is what the disciplinary procedure goes through.

238 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal

138 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT Hon PETER FOSS: It has been suggested to the committee that those investigative powers should be with the boards. Having used those investigative powers, they then use the evidence before the tribunal. It seems strange to give investigative powers - even in disciplinary matters - to a tribunal. The tribunal will not investigate the case; it will just sit and have things presented to it. It is mixing up the idea of having an independent review and using jackboots to find out what is happening.”239

8.10 Although such a power of entry and inspection is held by VCAT, the Committee notes that the ADT does not have such powers.

8.11 The Law Society of New South Wales noted that the powers of entry and inspection under cl 92 of the SAT Bill are harsh.240 In particular, the hindrance and obstruction offence created in cl 92(5) does not allow for a ‘reasonable’ hindrance or obstruction which may, in fact, be beneficial to the person exercising powers of entry and inspection.241 The absence of any rectification provision in the event of any damage to property caused by the exercise of these powers, particularly in the case of mistaken or inadvertent damage to property, was also identified as an issue with cl 92.242

8.12 When the Committee queried the purpose of cl 92, particularly with the apparent stripping of investigative powers from some vocational bodies (such as the Pharmaceutical Council of Western Australia243), the Government responded in the following terms:

“No vocational regulatory body will lose its investigative functions to SAT under the SAT legislation. … The investigative powers of some bodies have been removed by the Conferral Bill for one of two reasons:

(a) in the consumer protection portfolio, investigative powers have sometimes been repealed as the general powers given to the Commissioner for Fair Trading under the Consumer Affairs Act 1971 have been extended by the Conferral Bill to apply to any other Act. It would then be inconsistent to retain different

Legislation, March 22 2004, pp2-3. 239 Ms Clare Thompson, Member, Law Society of Western Australia, Transcript of Evidence, March 23 2004, pp14-15. 240 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p5. 241 Ibid. 242 Ibid. 243 Submission No 6 from Mr R J Brennan, Registrar, The Pharmaceutical Council of Western Australia, November 7 2003, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 139 Legislation Committee TWENTY-FOURTH REPORT powers in other legislation. However this only affects Acts under which the Commissioner exercises licensing functions, for example, travel agents…; or

(b) where a decision was made in consultation with Parliamentary Counsel that the powers in their form were no longer required by the body.…

Clause 92 reflects [the equivalent section] of the VCAT Act and it is a tool that SAT needs to be able to function properly, in many aspects of exercising its jurisdiction, eg in commercial tribunal matters, strata titles and retirement villages matters and guardianship matters. The power must be expressly stated in the SAT Bill as SAT will only have the powers given to it by statute. SAT will use these powers as a procedural tool as it is not an investigatory body and it must use them reasonably and fairly…”244

8.13 With respect to the use of the power of entry and inspection by VCAT as a ‘court viewing’ tool, Pizer’s Annotated VCAT Act notes the following:

“In Re Dretzke and Boroondara CC (1999) 2 VPR 205 the VCAT observed that, in a “planning enactment” case, the power to inspect is usually exercised after the end of the hearing and without a formal arrangement by which the parties or their representatives are present (unless entry to a building is required).”245

8.14 The President of the VCAT, Mr Justice Stuart Morris, stated to the Committee that although the VCAT’s powers of search and enter (and arrest for failure to comply with summonses and contempt) are seldom used, they are all part of a “legitimate, and necessary, regime for a tribunal”.246 Mr Justice Morris went on to state that:

“Of course, these powers are used sparingly. But they are essential to the authority of the tribunal and its ability to achieve just outcomes in circumstances where there are recalcitrant parties. No court or tribunal can successfully operate if a party can thumb their nose at the institution with impunity. In my opinion, it is essential that VCAT have these powers.”247

244 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, pp5-6. 245 Jason Pizer, Pizer’s Annotated VCAT Act, Second Edition, JNL Nominees Pty Ltd, Melbourne, 2004, p454. 246 Letter from Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, July 22 2004, p2. 247 Ibid.

140 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT 8.15 The Committee is of the view that cl 92 is not a standard ‘court viewing’ provision, but rather confers powers which are best suited to an investigatory body rather than a tribunal. The Committee is of the view that the proposed SAT should not have such powers, which should instead be retained by those investigatory bodies that refer matters to the SAT, such as the occupational boards in the SAT’s disciplinary jurisdiction. Attached at Appendix 8 is an outline of the powers of entry and inspection currently held by those vocational disciplinary bodies to be incorporated within the proposed SAT.

Page 54, line 16 to page 55, line 21 — To delete the clause.

POWER OF ARREST

8.16 Clause 101 of the SAT Bill states the following:

“101. Arrest

(1) If a person fails to attend as required by a summons under section 66(1), the Tribunal may, on proof by a statement verified by statutory declaration that the summons was served, issue a warrant for the apprehension of that person.

(2) A warrant issued under this section authorises any person to whom it is addressed —

(a) to apprehend the person named in the warrant at any time and bring the person before the Tribunal; and

(b) for that purpose, to detain the person named in the warrant in custody until released by order of the Tribunal or, on review, by order of the Supreme Court.

(3) The person executing the warrant may —

(a) break and enter any place, building, vehicle, vessel or other thing for the purpose of executing the warrant; and

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 141 Legislation Committee TWENTY-FOURTH REPORT (b) use reasonable force and assistance to apprehend the person named in the warrant.

(4) The apprehension of a person under this section does not prevent the person from being dealt with under section 99 for contempt.”

8.17 Mr David Forrester, Barrister, submitted that this was an unusual power for a supposedly user-friendly administrative tribunal to possess:

“Clause 101 allows for this tribunal to issue arrest warrants. That goes far beyond the powers of any ordinary tribunal. I suggest it is not the ideal method for a tribunal, which is supposed to be user friendly to the public, to be issuing arrest warrants to people who do not turn up for a hearing. A large number of members of the public start off a case, get cold feet and drop out. It would not be a good idea to issue arrest warrants if they failed to turn up. It is outside the parameters of an ordinary user-friendly tribunal to the public.”248

8.18 The Committee sought the Government’s response to the above comments. The Government stated:

“Again, like the contempt powers in clause 99, this power is largely symbolic. If these powers are not included, then witnesses and others are able to treat SAT with disdain and contempt. It would not be able to be used on a party who instituted proceedings and got ‘cold feet’ as referred to in the question. There would be no compulsion to proceed with your own civil matter, such that an arrest warrant would be issued. It would rarely, if ever, be used and would be saved for the most extreme circumstances, which will arise at some point. It has been the experience of some of the bodies coming in to SAT that without adequate powers as are contained in Divisions 7 and 8, cases fall over because witnesses don’t come to hearings. Although there is the power to take those types of matters to petty sessions, it strengthens the position of SAT substantially, by having these powers enunciated.”249

8.19 The Law Society of New South Wales expressed concern that no relevant qualifications or experience are required to be an “authorised person” under cl 101 of the SAT Bill:

248 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, p2. 249 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, p7.

142 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT “The exercise of the power of arrest is usually a court function and adequate material needs to be present before arrest warrants are issued. Also, damages occurring in the making of arrests (cl 101(3)) need to be considered by the tribunal in relation to reparations.”250

8.20 Although some of the submissions received by the Committee were critical of the proposed SAT’s power of arrest, the Committee is of the view that the power to issue arrest warrants to compel the attendance of witnesses at the SAT’s proceedings will prove a useful inducement to witnesses and will greatly facilitate those proceedings.

THE POWER TO ISSUE INJUNCTIONS AND MAKE DECLARATIONS

8.21 Clauses 89 and 90 of the SAT Bill provide the SAT with the power to grant injunctions and make declarations.

8.22 An injunction is a court order of an equitable nature requiring a person to do, or refrain from doing, a particular action.251

8.23 A declaration has been described as:

“[A]n order that declares the nature of the rights and obligations of the parties in respect of the dispute in question. It has no mandatory or prohibitory force and “therefore is not a requirement addressed to anybody to do anything”: Jacques Nominees Pty Ltd v National Mutual Trustees Pty Ltd (2000) 16 VAR 152 at 166.”252

8.24 Clause 89 of the SAT Bill provides as follows:

“89. Injunction

(1) The Tribunal may by order grant an injunction in any proceeding if it is just and convenient to do so.

(2) The Tribunal’s power to make an order under subsection (1) is exercisable by —

(a) in the case of an interim injunction, a legally qualified member; and

(b) in any other case, a judicial member.

250 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p5. 251 The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p600. 252 Jason Pizer, Pizer’s Annotated VCAT Act, Second Edition, JNL Nominees Pty Ltd, Melbourne, 2004, p431.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 143 Legislation Committee TWENTY-FOURTH REPORT (3) The Tribunal may make the order on the application of a party or on its own initiative.

(4) An interim injunction may be granted whether or not a person whose interests may be affected —

(a) is a party; or

(b) has been given an opportunity to be heard.

(5) An interim injunction may be granted —

(a) in any case — for a specified period; and

(b) if granted on the application of a party — for the period up to the final determination of that application.

(6) In granting an interim injunction, the Tribunal —

(a) may require an undertaking as to costs or damages as it considers appropriate; and

(b) may provide for the lifting of the injunction if specified conditions are met.

(7) The Tribunal may assess any costs or damages referred to in subsection (6)(a) and any amount so assessed is a debt recoverable in a court of competent jurisdiction.

(8) The rules may place conditions on the Tribunal’s power to grant an interim injunction.

(9) The Tribunal’s power under this section is in addition to, and does not limit, any power of the Tribunal under the enabling Act to make an order in the nature of an injunction.”

8.25 Clause 90 of the SAT Bill states:

“90. Declaration

(1) The Tribunal may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding.

(2) The Tribunal’s power to make a declaration under subsection (1) is exercisable only by a judicial member. 144 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT (3) The Tribunal’s power under this section is in addition to, and does not limit, any power of the Tribunal under the enabling Act to make a declaration.

(4) The Tribunal may at any time make any order necessary or desirable to give effect to a declaration made under subsection (1).”

8.26 SAT’s power to issue an injunction or make a declaration under cll 89 and 90 of the SAT Bill can therefore arise either:253

a) where an enabling Act expressly authorises the SAT to issue those remedies; or

b) where a proceeding is on foot before the SAT and it is fair and reasonable in all the circumstances for the SAT to issue the remedy in order to avoid the parties having to go to the Supreme Court to seek relief.

8.27 In response to a request from the Committee, the Government provided the following examples of enabling Acts that it is proposed will provide the SAT with the express power to issue injunctions in certain circumstances:

“(a) Interim Suspension Orders by Vocational Regulatory Bodies – Osteopath’s Act 1997, Medical Act 1894, Nurses Act 1992, Pharmacy Act 1985. More detailed example – Security and Related Activities (Control) Act 1996 – Commissioner for Police, as the vocational regulatory body has the capacity to apply for interim suspension orders, generally in circumstances where there is a risk to public safety. It is proposed that this power to grant interim orders will come to SAT;

(b) Restraints on Trust/Bank Accounts – Legal Practice Act 2003, Settlement Agents Act 1891, Real Estate and Business Agents Act 1978. Detailed example – Finance Brokers Act 1975 – Board may apply to the District Court (proposed to be to SAT) to freeze trust/bank accounts, generally on evidence provided by the Board to the effect there is reason to suspect deficiencies in the accounts;

(c) Restraining Unjust Conduct and Conduct in Breach of Undertakings – Example – Credit (Administration) Act 1974 – Commissioner for Fair Trading can make application to the Commercial Tribunal to order credit providers (under the Credit

253 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 145 Legislation Committee TWENTY-FOURTH REPORT Code and Credit Act) to refrain from engaging in unjust conduct (this function is proposed to be transferred to SAT); and

(d) Others – Example – the Guardianship and Administration Act 1990. Where it appears to GAB that it is necessary to make immediate provision for the protection of a person’s estate, then, pending the determination of the appointment of an administrator, GAB may exercise such powers as appropriate to protect the estate. Another example – Racing Penalties (Appeals) Act 1990 – upon or prior to the hearing of an appeal the Chairperson of [the Racing Penalties Appeal Tribunal (RPAT)] may direct RWWA, a steward, racing club or Committee to suspend the operation of any order or penalty.”254

8.28 The Government notes that there are a number of further areas within the proposed SAT’s jurisdiction where the power to issue injunctions could prove valuable:

“[F]or example in the commercial tenancy jurisdiction where the current lack of powers has consistently caused frustration, particularly with respect to the preservation of assets in credit matters; planning; building appeals – local government.”255

8.29 The VCAT’s equivalent power to issue interim injunctions has been used on a number of occasions, including in the following circumstances:256

• To place a tenant back in possession of premises that he had been locked out of: Wells v Bottari [unreported, VCAT, Macnamara DP, August 20 1998];

• To restrain a landlord from entering into possession of retail premises until a specified time: Kurban v Fullercraft Pty Ltd [2003] VCAT 1047;

• To restrain the respondent from calling up or cashing or making any demand upon or having recourse or otherwise dealing with a bank guarantee (which had been procured by the applicant for the respondent’s benefit to guarantee the applicant’s performance under a construction contract: Abigroup Contractors Pty Ltd v 620 Collins Street Pty Ltd [2003] VCAT 886;

• To restrain the respondents from preventing three teenage girls from participating in a suburban junior football competition until a final

254 Ibid. 255 Ibid, p5. 256 Jason Pizer, Pizer’s Annotated VCAT Act, Second Edition, JNL Nominees Pty Ltd, Melbourne, 2004, pp427-428.

146 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT determination had been made in each proceeding under the Equal Opportunity Act 1995 (Vic): Smith v Football Victoria Ltd (2003) 20 VAR 119;

• To restrain the respondent from filling two of the available permanent part- time shifts in a staffing restructure pending the hearing of a complaint under the Equal Opportunity Act 1995 (Vic): Montgomery v Monash University [2000] VCAT 408; and

• To require the Medical Practitioners Board to renew the applicant’s registration as a medical practitioner pending the hearing and determination of the applicant’s application for review under the Medical Practice Act 1994: Re Sze-Tho and Medical Practitioners Board (2002) 19 VAR 76.

8.30 The VCAT’s equivalent power to make a declaration has also been used on a number of occasions, including in the case of Re Vinsil Pty Ltd and The Director, Liquor Licensing Victoria (unreported, VCAT, Davis DP, February 19 2003), where the VCAT made a declaration that a certain decision made by the respondent was ultra vires the respondent’s powers under the Liquor Control Reform Act 1998 (Vic).257

8.31 The President of the VCAT, Justice Stuart Morris, advised the Committee that in his view the power of the VCAT to issue injunctions and make declarations is “a valuable power” that enables practical remedies to be put in place to achieve justice.258

8.32 Although the power to grant an injunction in cl 89 of the SAT Bill is limited to some extent by the requirement that it may only be granted “in any proceeding”, an equivalent power has been interpreted broadly by the VCAT. In Jeffery v Corrections Victoria and The Herald and Weekly Times Ltd [2004] VCAT 1211 (June 25 2004), Morris J, President of the VCAT, determined that the striking out of a proceeding did not render the VCAT functus officio when called upon to deal with an application for an injunction to prevent the subsequent publication of confidential documentation from that proceeding. Morris J accepted the argument that proceedings that have been struck out could be revived, in contrast to proceedings that have been dismissed:

“It might be that dismissal is death; but striking out is no more than terminal illness, often leading to death.

In Siddalls v Housing Guarantee Fund Ltd [2004] VCAT 701 Deputy President Macnamara dealt with this issue in some detail. Relying upon the decision of Warren J of the Supreme Court of Victoria in Tanska v Transport Accident Commission [2000] VSC 56, he held

257 Ibid, pp433-434. 258 Letter from the Honourable Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, July 22 2004, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 147 Legislation Committee TWENTY-FOURTH REPORT that the tribunal was not functus officio following the striking out of a proceeding.

Hence I hold that the tribunal does have jurisdiction to grant the injunction sought as, to grant such an injunction, would be to grant an injunction in the proceeding between Jeffrey and Corrections Victoria. I might add that even if Deputy President Davis had dismissed the application in her order on 9 June 2004, I would have reached the same conclusion.

In a sense it could be said that if section 101 is to be interpreted narrowly, the power to grant permanent injunctions given to the tribunal in section 123 ought to be interpreted broadly. It is a power that has been given to judicial members of VCAT, to be exercised to achieve just outcomes in a convenient way. It is obviously more convenient for this matter to be dealt with by the tribunal rather than the Supreme Court of Victoria, because the tribunal is already partly seized of the issues in the case. The tribunal is an organisation that has, as part of its membership, judicial officers, including a judge of the Supreme Court of Victoria. It would be a strange outcome if too much turned on a hat being worn by the judicial officer at the time the application was made.”259

8.33 The submission of the Western Australian Bar Association (Inc) notes the following concerns with respect to cl 89 of the SAT Bill:

“In relation to injunctions, SAT’s powers are cast in wide terms. Thus SAT may make an order for an interim or interlocutory injunction on the application of a party or on its own initiative. The Bill provides that an interim injunction may be granted by SAT against non-parties and whether or not a person whose interests may be affected by the order, has been given an opportunity to be heard. This reference to the absence of an opportunity to be heard, seems unfortunately worded. It would be better if the Bill provided that in cases of urgency and the like, such an injunction may be granted without affording interested parties a hearing. This would re-state accepted law concerning interlocutory injunctions granted ex parte. …

259 Jeffery v Corrections Victoria and The Herald and Weekly Times Ltd [2004] VCAT 1211 (June 25 2004), paras 40-43; The Honourable Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal, VCAT Practices and Procedures: Recent Developments, (speech delivered at a seminar held on July 20 2004 at Melbourne to mark the launching of the 2nd edition of Pizer’s Annotated VCAT Act), p5.

148 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT No specific provision is made in the SAT Bill to appeal such an injunction granted by SAT, whether interlocutory or final. In terms of the general appeal clause, that is cl 104 …, only parties have a right of appeal - but an interim injunction can be granted by SAT against a non-party. It is also a matter of concern that a party can only in terms of cl 104 appeal against an injunction granted by SAT with leave of the Supreme Court, and on a question of law. This provides SAT’s interlocutory and final injunctions with greater immunisation in an appeal context than that enjoyed by injunctions granted by a Judge of the Supreme Court. Where a person fails to comply with a summons issued by SAT, SAT can have him or her imprisoned. In this instance there is specific provision made (in clause 103 of the SAT Bill) for the Supreme Court to “review” the continued detention of that person. Something similar should be provided for in relation to the granting of an invasive order like an injunction by SAT - a remedy which is …traditionally regarded as the special province of the Supreme Court.”260

8.34 The Committee notes that the Administrative Decisions Tribunal Act 1997 (NSW) does not provide the ADT with the express power to grant injunctions or make declarations. The Committee sought comment from the Law Society of New South Wales as to the appropriateness of including such powers in an administrative tribunal given their experience of the ADT. The Law Society of New South Wales expressed reservations about equivalent provisions to cll 89 and 90 of the SAT Bill being introduced for the ADT:

“The injunctive power under clause 89 providing for interim and other case injunctions would be resisted. It appears that the distinction made in clause 89 related to the person who can make such orders. The risks associated with the making of injunctions in the courts demonstrate that care needs to be exercised as these orders can be made by a party or by the tribunal (cl 89(3)). The Law Society would insist that any such powers given to the ADT would be exercised only by a judicial member and to be used sparingly as the experience of the Victorian tribunal shows. The definition of “legally qualified member” includes a person with 5 years’ legal experience (cl 3(1)) and it is the view of the Law Society that more relevant experience in law is needed.”261

260 Submission No 2 from Western Australian Bar Association (Inc), October 22 2003, attached memorandum by Dr Hannes Schoombee, pp8-9. 261 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 149 Legislation Committee TWENTY-FOURTH REPORT 8.35 The Law Society of New South Wales expressed the view that the cl 90 declaratory order procedure should contain a definition of the term “declaration” (primarily for the benefit of non-lawyers), and should be subject to clear limitations as to when the procedure can be used.262

8.36 The Committee is of the view that the power to issue injunctions or make declarations should not be an open-ended, general, power of the proposed SAT. If such a power is required by the SAT, the specific circumstances in which the power may be used should be defined and the power itself should be provided for only within the relevant enabling Acts, and not the SAT Bill.

8.37 The Committee notes that interim and final injunctions granted and declarations made by the proposed SAT under cll 89-90 of the SAT Bill have all the appearance of being judicial decisions, and as such should be subject to appeal to the Supreme Court as of right (whether or not leave is granted or a question of law is involved).

8.38 The Committee is further of the view that only a judicial member of the proposed SAT should have the power to grant injunctions, and that such a power should be limited to interim injunctions only.

Page 52, line 14 — To insert after “an” —

“ interim ”.

Page 52, lines 17 to 20 — To delete —

“

—

(a) in the case of an interim injunction, a legally qualified member; and

(b) in any other case,

”.

262 Ibid.

150 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT

8.39 The Committee was also concerned to ensure that the Supreme Court would have the power to issue a final injunction to enforce an order of the SAT. The Committee was advised by the Parliamentary Counsel that an amendment to the SAT Bill was not necessary to give effect to such an intention as the Supreme Court currently has sufficient injunction powers.263

8.40 With respect to the SAT’s power to make declarations, the Committee is concerned that a declaration, in effect, ‘binds the world’ and may have unforeseen impacts beyond the parties to the matter in question. The Committee is thus of the view that the application of a declaration of the SAT should be limited to the parties or to certain further transactions involving the parties.

Page 53, after line 26 — To insert —

“

(5) A declaration made under subsection (1) is binding, according to its terms, on—

(a) the parties to the proceeding; or

(b) such of them as are specified in the declaration,

and not otherwise.

”.

THE ABROGATION OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

8.41 Clause 68 of the SAT Bill states:

“68. Privilege against self-incrimination

263 Letter from Mr Greg Calcutt, Parliamentary Counsel, dated October 1 2004, p7.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 151 Legislation Committee TWENTY-FOURTH REPORT (1) A person is not excused from complying with a requirement under this Act to answer a question or produce a document or other material in a proceeding on the ground that the answer or the production of the document or other material might incriminate the person or render the person liable to a penalty.

(2) However neither —

(a) an answer given by the person that was given to comply with the requirement; nor

(b) the fact that a document or other material produced by the person to comply with the requirement was produced,

is admissible in evidence in any criminal proceedings against the person other than proceedings for perjury or for an offence against this Act arising out of the false or misleading nature of an answer.”

8.42 The Committee notes that this provision is of similar effect to a certificate granted by a judge to a witness under s 11 of the Evidence Act 1906, in that the evidence given by the witness remains admissible in future civil proceedings.

8.43 Both the Legal Practice Board of Western Australia and the Western Australian Bar Association (Inc) queried why the protection in cl 68(2) is not extended to civil proceedings.264

8.44 The Law Society of Western Australia submitted that it saw no policy reason why the proposed SAT should have the power to abrogate the privilege against self- incrimination:

“SAT is not intended to be an inquisitorial body or a regulator, of the nature of ASIC, nor is it intended to be a court of jurisdiction of a nature like the Supreme Court. Thus it is the Society’s view that this provision goes beyond the scope of power which the types of decisions SAT is to make will need to do its work efficiently and effectively.”265

8.45 The Committee was advised by Ms Judy Eckert of the following rationale for cl 68 of the SAT Bill:

“The formulation of clause 68 of the Bill reflects section 105 of the Civil and Administrative Tribunal Act 1998 (Vic) (VCAT). It is also

264 Submission No 2 from Western Australian Bar Association (Inc), October 22 2003, attached memorandum from Dr Hannes Schoombee, p4. 265 Submission No 36 from The Law Society of Western Australia, November 11 2003, p4. 152 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT in accordance with the recommendation of the Western Australian Civil and Administrative Review Tribunal Taskforce Report (Report) … .

Proceedings in SAT will generally be public proceedings relating to matters of public administration or in which there is considerable public interest. What is said at those hearings is therefore on the public record. On that basis the Taskforce could see no compelling reason why what a lawyer (for example) says in a disciplinary hearing should not be admissible in a later civil action. I understand it was primarily for this reason that the Report recommended that there be no entitlement to immunity in civil proceedings and that the privilege extend only to subsequent criminal proceedings. It was also therefore on this basis that this provision was included in the Bill.”266

8.46 The Committee acknowledges the reasonableness of the arguments both for and against the inclusion of cl 68 in the SAT Bill. Ultimately, however, the Committee views the issue as a policy decision for the Government and sees no reason to depart from the wording of cl 68 of the SAT Bill.

PARLIAMENTARY PRIVILEGE

8.47 The Committee asked the following question of Ms Judy Eckert during a hearing in March 2004:

“Clause 35(2) of the SAT Bill enables the SAT to order the production to it of documents or other material which is covered by parliamentary privilege (although the SAT may not order that such documents or material be produced to a party to the proceedings). What is the purpose of the SAT receiving such documents or material? What is it envisaged the SAT would do with such documents or material? What is the practical purpose of such a power for the SAT, especially when the SAT cannot order the production to it of a document which is subject to legal professional privilege?”267

8.48 The same issue arises under the SAT’s power to summons the production of documents or other material under cl 66(4) of the SAT Bill. The Committee, along with other Legislative Council committees, has previously considered the impact of

266 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, March 22 2004, p1. 267 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p9.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 153 Legislation Committee TWENTY-FOURTH REPORT legislation on parliamentary privilege and reported to the Legislative Council on the matter.268

8.49 In response to the above question, the Government undertook to prepare an amendment to the SAT Bill to exclude from the reach of the SAT those documents and other materials which are subject to parliamentary privilege.269 The Government subsequently proposed to insert a new cl 159A into the SAT Bill (see para 5.54).270

8.50 Accordingly, The Committee supports the Government’s proposed amendment to insert a new cl 159A into the SAT Bill to acknowledge the status of material that is the subject of parliamentary privilege.

CONTEMPT

8.51 Clauses 94 to 98 of the SAT Bill establish a series of offences relating to the conduct of proceedings before the proposed SAT, namely:

a) failure to comply with a decision of the SAT;

b) failure to comply with a summons to attend or produce documents issued by the SAT;

c) failure to give evidence required by the SAT;

d) knowingly giving false or misleading information to the SAT; and

e) misbehaviour and other insulting or obstructive conduct.

8.52 Clause 99 of the SAT Bill provides a general contempt power for the proposed SAT:

“99. Contempt

(1) If the President is satisfied that an act or omission of a person would constitute a contempt of the Court if a proceeding of the Tribunal were a proceeding in the Supreme Court, the President may report that act or omission to the Supreme Court and the Court has

268 Western Australia, Legislative Council, Legislation Committee, Corruption and Crime Commission Act 2003 and the Corruption and Crime Commission Amendment Bill 2003, December 2003, Chapter 8. See also the following reports of the Western Australia, Legislative Council, Uniform Legislation and General Purposes Committee: National Crime Authority (State Provisions) Amendment Bill 2002, November 2002, pp7-10; Higher Education Bill 2003, September 2003, pp24-34; and Architects Bill 2003, June 2004, p14. 269 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p1. 270 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, June 17 2004, Attachment: Summary of Proposed Amendments to the State Administrative Tribunal Bill 2003, p1.

154 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT jurisdiction to deal with the matter as if it were a contempt of the Court.

(2) If —

(a) subsection (1) applies to an act or omission by a person and that act or omission is also an offence under this Act; and

(b) the person has been dealt with under subsection (1) for the act or omission,

the person is not liable to be punished for the offence under this Act.”

8.53 The Committee asked the following question of Ms Judy Eckert during a hearing in March 2004:

“Why is it necessary for the SAT to have the power to impose its own penalties for failure to comply with its decisions and actions (cll 94- 98) when cl 99 of the SAT Bill already gives jurisdiction to the Supreme Court to deal with such matters as a contempt of the Supreme Court?”271

8.54 Ms Eckert responded in the following terms:

“Essentially these provisions in clauses 94 to 98 reflect sections 133 and 134 of the VCAT legislation. You will see in clause 99 that if the matter is treated as an offence, then it cannot proceed as a contempt matter. It has to be one or the other.

There might be situations in which SAT needs to deal with something rather than going through the process of contempt. It makes both options available but both cannot be proceeded with. As far as I am concerned, the fundamental reason for its going in as it is in VCAT, apart from the fact that it was in the Barker report, is that to say these must be complied with underpins the importance that Parliament should attach to decisions of SAT. The decision of SAT is an important thing, and that is fundamentally why it is there.”272

8.55 Ms Eckert further noted in a subsequent written response to the above question that:

271 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p11. 272 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 155 Legislation Committee TWENTY-FOURTH REPORT “The Barker Report recommended that SAT have contempt powers, however, in line with the recommendations of the Report of the Standing Committee on Public Administration and Finance on the Planning Appeals Amendment Bill 2001; March 2002 (in particular see paragraph 6.13) and because of the implications such a power could have on the status of SAT it was decided to include a power for SAT to refer a contempt to the Supreme Court but with simple offence provisions available to deal quickly and effectively with behaviour which could otherwise undermine and disable SAT in the discharge of its functions.”273

8.56 Ms Eckert also referred to the Law Reform Commission of Western Australia’s recent report on the law of contempt.274 Ms Eckert noted the problems highlighted by that report with respect to undertaking contempt proceedings, and the need for a summary power.275

8.57 Hon Peter Foss MLC raised the following query with respect to the issue of whether a person could be dealt with simultaneously by the Supreme Court under the contempt provisions and by the SAT under the simple offence provisions of the SAT Bill:

“Does it cut both ways? Clause 99 of the State Administrative Tribunal Bill says that if you are being dealt with under clause 99, you cannot be dealt with under the Bill. Is there anything that says that if you are being dealt with under the rest of the Bill, you cannot be dealt with under clause 99?”276

8.58 In response to this query, Ms Judy Eckert noted that:

“[A]lthough a court would not entertain proceedings against a person for the same conduct under two different provisions of the Bill, instructions will be forwarded to Parliamentary Counsel to amend clause 99(2) so that it operates to prohibit action being taken under more than one provision for the same conduct… .”277

273 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p2. 274 Law Reform Commission of Western Australia, Report on Review of the Law of Contempt, June 2003, at Internet site: http://www.lrc.justice.wa.gov.au/Reports/R93-Report%20on%20Contempt.pdf, (current at May 18 2004). 275 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p2. 276 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p11. 277 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p2.

156 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT 8.59 The Committee notes that the Government, subsequent to the above correspondence between the Committee and the Government, has prepared a proposed amendment to address this issue, which the Committee endorses (see para 5.47).

ACCESS TO DOCUMENTS AND THE CONFIDENTIALITY PROVISIONS OF THE FISH RESOURCES MANAGEMENT ACT 1994

8.60 Clause 388 of the Conferral Bill proposes to amend s 250 of the Fish Resources Management Act 1994 to provide for the release to the proposed SAT of otherwise confidential information (such as the details of fish caught by individual commercial fishers) held by the Department of Fisheries.

8.61 Section 250 of the Fish Resources Management Act 1994 currently states:

“250. Confidentiality

(1) In this section 

“confidential information” means information contained in any 

(a) record that is required to be kept under this Act;

(b) return that has been submitted as required under this Act; or

(2) Except as provided in subsection (3) or (4), a person who directly or indirectly divulges any confidential information obtained by reason of any duty or power that person has, or at any time had, in the administration of this Act commits an offence.

Penalty: $10 000.

(3) Subsection (2) does not apply to the divulging of information 

(a) in the course of the performance of any duty or the exercise of any power under this Act;

(b) as required or allowed under this Act;

(c) for the purposes of the investigation of any suspected offence against this Act or the conduct of proceedings against any person for an offence against this Act; or

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 157 Legislation Committee TWENTY-FOURTH REPORT (d) with the consent of the person, or each of the persons, to whom the information relates.

(4) Subsection (2) does not apply to the divulging of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.

(5) A person who has any confidential information obtained by reason of any duty or power that person has, or at any time had in the administration of this Act is, despite any law to the contrary, not to be required by subpoena or otherwise to produce or divulge that information to any court or tribunal.

(6) This section has effect despite any provision of the Freedom of Information Act 1992.”

8.62 The Department of Fisheries opposes cl 388 of the Conferral Bill, stating that:

“The Department [of Fisheries] has maintained the confidentiality of confidential information in all circumstances including in resisting a warrant issued under s10 of the Crimes Act 1914 of the Commonwealth. …

The clear intention of Parliament set out in s250 of the [Fish Resources Management Act 1994 (FRMA)] was to preserve the confidentiality of confidential information in all circumstances except where required or permitted to be disclosed under the FRMA. It would be a major policy change to include the proposed amendment for the benefit of the SAT without at the same time affecting the status of s250 in relation to WA courts and other tribunals.”278

8.63 The Government stated to the Committee in response to the above concerns that the proposed SAT will simply have the same power to access confidential Department of Fisheries documents as the current Fisheries Objections Tribunal:

“It would be a nonsense for SAT to review decisions under the FRMA and not have access to the relevant materials and documents. It is proposed that SAT will assume the powers of the adjudicator appointed under the FRMA, who currently has power to see these confidential documents, but must keep them secret. That power must be mirrored for SAT if SAT is to be at all effective in exercising its review jurisdiction. The secrecy provision in the SAT Bill at clause 155 in fact mirrors the secrecy obligations in the FRMA. The

278 Submission No 23 from Department of Fisheries, November 11 2003, p4.

158 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 8: The Powers of the Proposed SAT protection therefore is carried over and not diminished by bringing the jurisdiction of the adjudicator to SAT. It would not be an effective transfer of the jurisdiction if section 250 of the FRMA were not amended as proposed by the Conferral Bill.

…

I note that the [Department of Fisheries] suggested that if SAT is able to access these documents than it is unfair not to open it up to other courts and tribunals. However, that is not really relevant as other courts and tribunals are not assuming the existing jurisdiction of a body that currently has access to these documents and they are not reviewing departmental decisions under the FRMA.”279

8.64 The Committee accepts the view of the Department of Fisheries and believes that the release of confidential fishing records to the SAT could be highly prejudicial to the protection of the State’s fisheries.

Clause 388

Page 169, lines 17 to 19 - To delete the clause.

279 Letter from Ms Judy Eckert, Barrister, Instructing Officer on the State Administrative Tribunal Legislation, August 15 2004, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 159

CHAPTER 9 APPEALS FROM THE PROPOSED SAT

APPEALS AGAINST DECISIONS OF THE PROPOSED SAT

9.1 Clause 104 of the SAT Bill provides that:

“104. Appeal from Tribunal’s decision

(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.

(2) The appeal can only be brought on a question of law unless it is otherwise expressly stated.

(3) The appeal lies to —

(a) the Full Court, if the decision was made by —

(i) a judicial member; or

(ii) the Tribunal constituted by members who include a judicial member;

(b) the Supreme Court, in any other case.

(4) In subsection (3)(a) —

“Full Court” has the meaning given to that term in the Supreme Court Act 1935 section 4.

...”

9.2 With respect to this right of appeal to the Supreme Court, the Government advised the Committee that:

“The SAT Bills allow a right of appeal from a decision of SAT on a question of law and with leave of the Supreme Court, sometimes where currently there is no such right of appeal and conversely where there currently is an unrestricted right to appeal a decision. It is a right, not something that a person is obliged to take up, and as it is on a question of law and with leave there are adequate mechanisms to

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 161 Legislation Committee TWENTY-FOURTH REPORT curtail any possible abuse by the ‘wealthier’ party who has access to more resources and is therefore at a perceived advantage.”280

Appeals “…on a question of law”

9.3 Under cl 104 of the SAT Bill an appeal may be made against a decision of the proposed SAT to the Supreme Court by the leave of the Supreme Court and, subject to the provisions of an enabling Act, on a question of law only. The Guardianship and Administration Act 1990 and the Mental Health Act 1996 are two enabling Acts which it is proposed will provide for appeals from the SAT on grounds other than simply a question of law.281 As the Committee was advised:

“The general right of appeal in the SAT Bill is limited to a right of appeal on a question of law only, except in the vulnerable persons and revenue jurisdictions. …

There is a strong body of administrative case law which sets out the principle that where Parliament has entrusted the role of making decisions on the merits and the facts to a specialist tribunal, then the courts should not, as a general rule, interfere with that decision by conducting a review of the merits and facts (for examples of cases see: Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (No 2) 1980 3 ALD 38; Brown v Repatriation Commission 60 ALR 289 and the discussion of this issue in Chapter 10 of “Administrative Appeals Tribunal” Dennis Pearce 2003 Butterworths). This is a primary reason for proposing the establishment of SAT – to remove the role of merits based decisions and review from the legalistic environment of the courts to the more appropriate forum of a specialist tribunal. And it is on this basis that appeals from administrative tribunals, such as SAT, are on questions of law only.”282

9.4 A question of law is a question that is to be resolved:

“…by applying legal principles, rather than by determining a factual situation; an issue involving the application or interpretation of a law and reserved for a judge.”283

280 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, June 17 2004, “Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submissions made to the Committee on the SAT Bills”, p6. 281 Letter from Ms Judy Eckert, Barrister,. Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004, pp10-11. 282 Ibid, p11. 283 The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p970.

162 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT 9.5 Dr Hannes Schoombee noted the following in a memorandum to the President of the Western Australian Bar Association (Inc):

“[T]here is a subtle but important distinction between appeals “on a question of law” and appeals “involving a question of law”. In the latter instance the position is that once a question of law is involved, the whole decision is open to review, including factual findings. See Ruhamah v FCT (1928) 41 CLR 148 at 151; Pinder Architects Pty Ltd v City of Stirling (1996) 92 LGERA 165 (WA Sup Ct) at 176. That is not the case in appeals “on a question of law only” which applies for instance to appeals to the Federal Court against decisions of the federal AAT.”284

9.6 In some instances, such as for certain disciplinary matters, the SAT Bill removes existing avenues of appeal to the lower courts and replaces them with an appeal direct from the SAT to the Supreme Court, with leave, and on a question of law only.285

9.7 It was stressed to the Committee by the Government that this more limited appeal right in the case of vocational disciplinary matters is premised on the fact that SAT will be overseen by judicial members who will, where appropriate, sit on the hearing of a matter:

“The original decision is therefore being made at a higher level than it is currently.”286

9.8 Mr L B Marquet noted in his submission that:

“The [SAT] Bill clearly intends the Tribunal to conduct judicial and merit review simultaneously with respect to wide-ranging and disparate types of decisions. The judicial status of the presidential members suggests that the Tribunal’s judicial review decisions are intended to carry weight with consequent diminution in applications for review to the Supreme Court.

However, the right of appeal on a question of law from the Tribunal to the Supreme Court means that its decisions are unlikely to be regarded as authoritative precedents when there is an ever-present possibility of reversal by the Supreme Court. Arguably, the Tribunal

284 Submission No 2 from Western Australian Bar Association (Inc), October 22 2003, attached memorandum by Dr Hannes Schoombee, p8. 285 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p4. 286 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, June 17 2004, “Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submissions made to the Committee on the SAT Bills”, p7.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 163 Legislation Committee TWENTY-FOURTH REPORT will operate under the shadow of the Supreme Court’s appellate jurisdiction rather than in context of a jurisprudence shaped by the Tribunal and based on the realities of what a review process can achieve.

If the Tribunal is to retain the judicial review function, the relationship between it and the Supreme Court could be harmonized in similar fashion to the Appeal Court established by Part IV of the Industrial Relations Act 1979 by providing for an appellate division of the Tribunal constituted by judges of the Supreme and District Courts.”287

9.9 The Law Society of Western Australia expressed concern at the requirement that parties obtain the leave of a court before being able to appeal from a decision of the proposed SAT on a question of law. It notes that no criteria or guidance is provided as to when leave should be granted:

“As a general principle, a party who is subject to an administrative decision (whether or not a Judge is one of the decision makers) should have at least one appeal as of right to a Court, to correct an error of law, as is the position federally. The Society does not believe there is a sound basis for restricting a party’s appeal rights.”288

9.10 The Committee makes the following cautionary comment that whilst cl 104 of the SAT Bill is a provision that is of a kind often included in legislation to limit a right of appeal, the opposite effect may in fact result. This is because a ‘question of law’ can have a broader meaning than a layman might expect. For instance, the inferences that can be drawn can constitute a question of law as does the taking into account of irrelevant considerations. By limiting the right of appeal, you encourage legal ingenuity so that litigants can bring themselves within the provisions for appeal. This can lead to extensive legal arguments that are, for the parties, arcane and irrelevant. Accordingly, the legal argument as to whether an appeal is within jurisdiction may be lengthy and add significantly to the cost of the appeal even before the merits of the appeal are addressed.

9.11 The Committee notes that of the jurisdictions to be conferred on the proposed SAT, it is Government agencies (in the administrative decisions review jurisdiction) and larger private corporations (in the civil and commercial jurisdictions) that are the more likely appellants from the SAT’s determinations to the Supreme Court. The Committee is of the view that no costs should be awarded against a losing party by either the SAT or the Supreme Court for matters within the administrative decisions

287 Submission No 47 from Mr L B Marquet, May 17 2004, p7. 288 Submission No 36 from The Law Society of Western Australia, November 11 2003, p4.

164 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT review jurisdiction. Furthermore, a precondition for any appeal from the SAT to the Supreme Court should be an undertaking that the appellant will pay the other party’s costs in any event.

9.12 The Committee further notes that the appeal provisions of an enabling Act prevail over cl 104 of the SAT Bill in the event of any inconsistency (cl 5, SAT Bill). For instance, the current broad appeal rights to the Supreme Court under the Mental Health Act 1996 (currently from the MHRB to the Supreme Court) will be unaffected by any restrictions on rights of appeal from the SAT under the SAT Bill.289

9.13 The Committee is of the view that parties in all those matters falling within the proposed SAT’s personal rights jurisdiction (that is, equal opportunity, mental health, guardianship and administration, and vocational licensing or disciplinary matters), should retain any current appeal rights to the Supreme Court from a decision of the SAT. That is, the restriction under cl 104 of the SAT Bill that an appeal to the Supreme Court may only be by leave and on a question of law should not apply to these particular matters where no such restriction on accessing the Supreme Court currently applies.

9.14 The Committee draws to the attention of the Legislative Council that the Committee’s following recommendations 25 to 28 are to be read as a package.

289 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 165 Legislation Committee TWENTY-FOURTH REPORT

Page 63, before line 23 — To insert —

“

(13) Despite subsection (2), if the Tribunal’s decision —

(a) is made under a relevant Act or in a proceeding for the review of a decision made under a relevant Act; and

(b) has the effect of depriving a person of the person’s capacity to lawfully pursue a vocation,

an appeal under this section may be brought on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact.

(14) In subsection (13) —

“relevant Act” means —

(a) an Act specified in Schedule 1, if it is an enabling Act; or

(b) an enabling Act prescribed by the regulations for the purposes of subsection (13).

”.

166 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Clause 314

Page 145, line 26 — To delete “, 133 and 134” and insert instead —

“ and 133 ”.

Clause 782

Page 348, line 2 — To delete “repealed” and insert instead —

“

amended as follows —

(a) by deleting “Board” and inserting instead —

“ State Administrative Tribunal ”;

(b) by deleting “appeal to the Supreme Court” and inserting instead —

“

without leave, appeal under section 104 of the State Administrative Tribunal Act 2003

”;

”.

Page 348, line 4 — To delete the line.

Page 348, line 11 — To delete the line.

Clause 783

Page 348. line 17 — To insert after “decision” —

“ or order ”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 167 Legislation Committee TWENTY-FOURTH REPORT

New Schedule 1

Page 98, after line 21 — To insert —

“

Schedule 1 — Relevant Acts for section 104

[s. 104]

Architects Act 1921

Builders’ Registration Act 1939

Chiropractors Act 1964

Dental Act 1939

Dental Prosthetists Act 1985

Employment Agents Act 1976

Finance Brokers Control Act 1975

Fish Resources Management Act 1994

Hairdressers Registration Act 1946

Land Valuers Licensing Act 1978

Legal Practice Act 2003

Licensed Surveyors Act 1909

168 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Medical Act 1894

Motor Vehicle Dealers Act 1973

Nurses Act 1992

Occupational Therapists Registration Act 1980

Optical Dispensers Act 1966

Optometrists Act 1940

Osteopaths Act 1997

Painters’ Registration Act 1961

Pearling Act 1990

Pharmacy Act 1964

Physiotherapists Act 1950

Podiatrists Registration Act 1984

Psychologists Registration Act 1976

Real Estate and Business Agents Act 1978

Settlement Agents Act 1981

Taxi Act 1994

Travel Agents Act 1985

Valuation of Land Act 1978

Veterinary Surgeons Act 1960

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 169 Legislation Committee TWENTY-FOURTH REPORT

New Clause 315

Page 145, after clause 314 — To insert the following new clause —

“

315. Section 134 amended

(1) Section 134(1) is amended as follows:

(a) by deleting “125, 126, 127 or 128(2)” and inserting instead —

“ 126 or 127 ”;

(b) by deleting all of the subsection after “appeal” and inserting instead —

“

under section 104 of the State Administrative Tribunal Act 2003.

”.

(2) After section 134(1) the following subsection is inserted —

“

(1a) An appeal may be brought on any ground that involves a question of law, a question of fact or a question of mixed law and fact.

”.

(3) Section 134(2), (3) and (4) are repealed.

”.

170 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

New Clause 416

Page 182, after clause 415 — To insert the following new clause —

“

416. Section 3A inserted

After section 3 the following section is inserted —

“

3A. Inherent jurisdiction of Supreme Court not affected

Nothing in this Act affects the inherent jurisdiction of the Supreme Court.

”.

The extent to which the Supreme Court may revisit the merits of a case when considering an appeal on a question of law

9.15 The Committee sought clarification from the Government on the interaction of clauses 104(2) and 104(9) of the SAT Bill and in particular, if on appeal the court finds that there is an error on a question of law, to what extent does the Court have regard to the facts and merits of the decision the subject of appeal.

9.16 Clause 104(9) permits the Supreme Court when dealing with an appeal from the SAT to, amongst other things, vary the SAT’s decision or, at cl 104(9)(b), make any decision that the SAT could have made in the proceeding. Such a power indicates that the Supreme Court may revisit the merits of a case notwithstanding the restriction contained in cl 104(2) that appeals be on a question of law only (subject to the provisions of any enabling Act).

9.17 The Government advised the Committee that cl 104(9)(b) was designed to overcome difficulties experienced in the ADT and AAT where appellate courts lacked express statutory power to substitute their decision for that of a tribunal in those circumstances where the appellate court’s findings on a question of law could lead to only one

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 171 Legislation Committee TWENTY-FOURTH REPORT possible outcome.290 In such circumstances it is argued that it would be inefficient for the matter to be remitted to the tribunal where only one outcome was possible:

“I am confident that, save in exceptional and necessary cases, the Supreme Court would deal with appeals before it under the provisions of clause 104(9), other than paragraph (b). However, the inclusion of clause 104(9)(b) allows the court a commonsense outcome in circumstances where it is necessitated. It does not invite the Supreme Court to become a ‘merits reviewer’ – it merely gives the court the necessary flexibility to deal with all appeals from SAT. On this basis, the orders available to the court do not conflict with the principle that appeals will only be available on a question of law.”291

The financial burden on non-government parties of an appeal to the Supreme Court

9.18 Conducting proceedings in the Supreme Court can be extremely costly. Even if a party succeeds in the Supreme Court, the costs awarded never fully compensate a party for their legal costs.

9.19 The Committee considered various options to limit the costs that a party will face in the event that a matter is appealed from the SAT to Supreme Court of Western Australia (and, possibly, to the High Court of Australia). The following discussion during the hearing involving representatives of the Law Society of Western Australia is illustrative of the issues considered:

“The CHAIRMAN: Would it be of benefit if the proposed SAT provided an informal option whereby a matter could proceed at the request of the applicant - the complainant - by way of a written submission alone without legal representation and without a right of appeal of a sentence decision?

Ms Thompson: We see grave dangers in that sort of model. It is extremely difficult for people to elect to give away their right of appeal at the beginning of a proceeding in circumstances in which they are operating in a vacuum and do not know what the outcome will be. People do not know what the decision will be. It is possible that an adverse decision will be made for inappropriate reasons and should be appealed. We would prefer a system in which people do not elect to give up appeal rights. Whether people choose to enforce those appeal rights is a different issue.

290 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004, pp12-13. 291 Ibid, p13.

172 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT Hon PETER FOSS: Someone might be on the receiving end of an appeal.

Ms Thompson: Yes, that happens.

Hon PETER FOSS: That has consequences regarding costs. A person might know at the beginning of the process that he could not possibly afford an appeal. I will use the example of a bureaucratic review. A person might ask for a decision to be reviewed. The person might not mind having a second bite through SAT, but there is no way he would want to end up in the Supreme Court because of the danger of the costs involved if the Government decided to appeal an adverse decision.

Ms Thompson: As I understand, currently in the area of taxation, undertakings are given to the court that if the tax office appeals, it will not seek costs -

Hon PETER FOSS: These are not only taxes. There are a lot of other areas of review.

Ms Thompson: I am simply saying that that analogy would be appropriate in those circumstances. If a government department took an appeal from SAT against an individual who quite legitimately reviewed a decision and had the decision overturned on review, an undertaking ought to be given by the Government that it does not require cost orders in the event that the appeal is successful.

Hon PETER FOSS: We can write that in.

Ms Thompson: That would be an appropriate way of doing it.

Hon PETER FOSS: Would you be happy if it were written into the legislation that an appeal by the Government against a decision made in SAT would be done on the basis that the costs were borne by the Government?

Ms Thompson: It is too hard to make a black and white rule because it will not always be the appropriate thing to do; it is a difficult area. I think the area must be allowed to develop. The tax model has worked. The Australian Taxation Office does not enforce cost orders; indeed, neither does the state tax office in many cases. It will simply give an undertaking to the court not to do that. …

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 173 Legislation Committee TWENTY-FOURTH REPORT Hon PETER FOSS: We are concerned about the ordinary person who goes to SAT thinking he has a nice, cheap solution and ends up in the High Court. That is not a cheap solution.…

People would not start an action. They would ask themselves, “What if I end up in the High Court? I will not even be able to get started on this.””292

9.20 The Committee is concerned to ensure that, in the case of appeals to the proposed SAT from the decisions of government administrators (that is, local governments, Government departments or agencies), the government administrator is not able to use its greater financial resources to appeal a decision of the SAT to the Supreme Court to the significant financial detriment of the other party or parties.

Page 63, after line 22 — To insert —

“

”.

Existing Appeal Rights for Matters Proposed to be Transferred to the SAT

9.21 The following table sets out the existing appeal processes and the nature and limitations of those current appeals for matters that are proposed to be transferred to the SAT:

292 Mr Michael Hardy and Ms Clare Thompson, Members, The Law Society of Western Australia, Transcript of Evidence, March 23 2004, pp4-5.

174 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT Table 7.2 Existing Rights of Appeal for those Matters that are Proposed to be Transferred to the SAT293

Legislation Type of Decision Right of Appeal Nature of Appeal

Aboriginal Heritage Act Decision of the Minister Certain matters to the Unlimited. 1972, ss 18, 43 and 46. Supreme Court, others to the Local court

Adoption Act 1994, s 10 Decision of the Minister District Court On the ground of error of law or of fact.

Aerial Spraying Control (i) Decision of the (i) Court of Petty Unlimited. Act 1966, ss 8 and 13 Director of Agriculture Sessions, magistrate sitting alone (ii) Decision of an Inspector (ii) The Minister

Agricultural Produce Notice issued by an The Minister Unlimited. (Chemical Residues) authorised person Act 1893, ss 20 and 23

Agricultural Produce Decision of the Local Court (decision is Unlimited. Commission Act 1988, s Agricultural Produce final) 16 Commission

Agriculture and Related Decision of the Local Court Unlimited. Resources Protection Agriculture Protection Act 1976, s 54 Board

Animal Welfare Act Decision of the Minister Local Court Unlimited. 2002, ss 71-74

Architects Act 1921, s Decision of the District Court Unlimited. 16 Architects’ Board

Armadale Decision of the Town Planning Tribunal Unlimited. Redevelopment Act Armadale 2001, s 50 Redevelopment Authority

293 Table prepared by Ms Bronwyn Kerr, Winter Clerk, and Ms Lillian Makinda, Articled Clerk.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 175 Legislation Committee TWENTY-FOURTH REPORT

Legislation Type of Decision Right of Appeal Nature of Appeal

Associations Commissioner for Fair Minister for Consumer Unlimited. Incorporation Act 1987, Trading and Employment s 4 Protection (decision is final)

Biological Control Act Decision of the Biological Control Unlimited. 1986, s 54 Biological Control Appeals Board Authority

Births, Deaths and Decision of the The Minister Unlimited. Marriages Registration Registrar of Births, Act 1998, s 67 Deaths and Marriages

Boxing Control Act Decision of the Boxing Local Court Unlimited. 1987, s 34 Commission or the Minister

Bread Act 1982, s 7 Decision of the Chief Local Court Unlimited. Executive Officer

Builders’ Registration Decision of the District Court (whose Unlimited. Act 1939, s 14 Builders’ Registration decision is final) Board

Business Names Act Decision of the Supreme Court Unlimited. 1962, s 19 Commissioner for Fair Trading

Caravan Parks and Decision of local The Minister Unlimited. Camping Grounds Act government 1995, s 27

Cemeteries Act 1986, s Decision of the Local Court Unlimited. 19 Cemeteries Board

Chattel Securities Act Decision of the Commercial Tribunal Unlimited. 1987, s 26 Commissioner of Consumer Affairs

Chicken Meat Industry Decision of the Chicken Supreme Court Unlimited. Act 1977, s 18 Meat Industry Committee

176 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Legislation Type of Decision Right of Appeal Nature of Appeal

Chiropractors Act 1964, Decision of the Local Court Unlimited. s 20 Chiropractors Registration Board

Commercial Tenancy Decision of the Commercial Tribunal Unlimited. (Retail Shops) Commercial Registrar Agreements Act 1985, s 22

Community Services Act Decision of the Director Local Court Unlimited. 1972, s 17 General of the Department for Family and Children’s Services

Competition Policy No specific decisions No specific provisions Reform (Western affected by the SAT dealing with appeals. Australia) Act 1996 Conferral Bill

Consumer Affairs Act No specific decisions No specific provisions 1971 affected by the SAT dealing with appeals. Conferral Bills

Consumer Credit No specific decisions No specific provisions (Western Australia) Act affected by the SAT dealing with appeals. 1996 Conferral Bills

Control of Vehicles Decision of the Director Court of Petty Sessions Unlimited. (Off-road Areas) Act General of the 1978, s 33 Department for Planning and Infrastructure

Co-operative and Decision of the Supreme Court Unlimited. Provident Societies Act Registrar of Co- 1903, s 6 operative and Financial Institutions

Country Areas Water Decision of the Certain matters to the Unlimited. Supply Act 1947, ss 12 Commissioner of Water Minister others to the and 59 and Rivers or the Water Land Valuation Tribunal Corporation

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 177 Legislation Committee TWENTY-FOURTH REPORT

Legislation Type of Decision Right of Appeal Nature of Appeal

Country Towns Decision of the Water Land Valuation Tribunal Unlimited. Sewerage Act 1948, s Corporation 62

Credit Act 1984 Certain decisions of None specified Not specified. Commercial Tribunal (Supreme Court?)

Credit (Administration) Decision of the District Court Unlimited. Act 1984, s 24 Commercial Tribunal

Cremation Act 1929, s 8 Decision of a medical Executive Director Unlimited. referee

Dangerous Goods Decision of the Chief Local Court Unlimited. Safety Act 2003, s 67 Dangerous Goods Officer

Dangerous Goods Decision of a body Local Court Unlimited. (Transport) Act 1998, s exercising power 8 conferred by the Act

Debt Collectors Decision of the Supreme Court Unlimited. Licensing Act 1964, s Commissioner for Fair 11 Trading

Dental Act 1939, s 33 Decision of the Dental Supreme Court Unlimited. Board

Dental Prosthetists Act Decision of the Local Court Unlimited. 1985, s 22 Commissioner of Health

Dog Act 1976, s 7 Decision of local Local Court Unlimited. government

East Perth Decision of the East Town Planning Appeal Unlimited. Redevelopment Act Perth Redevelopment Tribunal 1991, s 45 Authority

Electricity Act 1945, s Decision of a body The Minister or the Unlimited. 32 exercising power Local Court conferred by the Act

178 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Legislation Type of Decision Right of Appeal Nature of Appeal

Employment Agents Act Licensing officer or the Court of Petty Sessions Unlimited. 1976, ss 23 and 24 Commissioner for Fair Trading

Energy Coordination Decision of the Western Australian Gas Unlimited. Act 1994, s 11 Coordinator of Energy Review Board

Equal Opportunity Act Decision of the Equal Supreme Court Matter of Law. 1984, ss 125-128 Opportunity Tribunal

Explosives and Decision of the Chief Local Court Unlimited. Dangerous Goods Act Inspector of Explosives 1961, s 52 and Dangerous Goods

Fair Trading Act 1987 Decision of the Commercial Tribunal Application to Commissioner for Fair Commissioner. Trading Commissioner decides whether it goes to Court or Commercial Tribunal.

Finance Brokers Decision of the District Court Unlimited. Control Act 1975, s 23 Commercial Tribunal

Fire and Emergency Decision of the Minister Land Valuation Tribunal Unlimited. Services Authority of Western Australia Act 1998, s 36

Fire Brigades Act 1942, Decision of the Fire and A Supreme Court Judge Unlimited. s 25 Emergency Services or Court of Petty Authority Sessions

Firearms Act 1973, s 22 Decision of the A magistrate or the Unlimited. Commissioner of Police Firearms Appeal Tribunal

First Home Owners Decision of the Local Court Unlimited. Grant Act 2000, s 31 Commissioner of State Revenue

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 179 Legislation Committee TWENTY-FOURTH REPORT

Legislation Type of Decision Right of Appeal Nature of Appeal

Fish Resources Decision of the The Minister or a Unlimited. Management Act 1994, Executive Director of nominated tribunal s 149 the Department of Fisheries

Fisheries Adjustment Decision of the Minister The Fisheries Unlimited. Schemes Act 1987, s 14 Adjustment Compensation Tribunal

Fishing and Related Decision of the Minister The Fisheries Unlimited. Industries Adjustment Compensation (Marine Compensation Tribunal Reserves) Act 1997, s 8

Gas Standards Act Decision of the Director The Minister Unlimited. 1972, s 13 of Energy Safety

Gender Reassignment Decision of the Gender Supreme Court Unlimited. Act 2000, s 21 Reassignment Board

Guardianship and (i) Decision of the (i) The Full Board (i) Unlimited for Administration Act Board consisting of one Review of decision of 1990, ss 17 and 20 member (ii) The Supreme Court the Board.

(ii) Decision of the (ii) Appeal to Supreme Board consisting of at Court by leave. least three members

Hairdressers Decision of the A stipendiary magistrate Unlimited. Registration Act 1946, Hairdressers s16 Registration Board

Health Act 1911, ss 36, (i) Decision of local (i) Court of Petty Unlimited. 37 and 246 government Sessions or Executive Director of Public (ii) Decision of Health. environmental officers (ii) Local Court

180 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Legislation Type of Decision Right of Appeal Nature of Appeal

Health Services Decision of the Director Registration Board Director may refer (Conciliation and matter to Board, after Review) Act 1995, s 31 consultation with the board, and with written consent of complainant.

Heritage of Western Decision of the Minister Town Planning Appeal Unlimited. Australia Act 1990, s 30 Tribunal

Hire-Purchase Act Decision of the Local Court Unlimited. 1959, s 36 Commissioner for Fair Trading

Hope Valley-Wattleup Decision of the Western Town Planning Appeal Unlimited. Redevelopment Act Australian Planning Tribunal 2000, s 29 Commission

Hospitals and Health Decision of the Local Court Unlimited. Services Act 1927, s 26 Commissioner of Health

Housing Societies Act Decision of the Chief District Court Unlimited. 1976, s 87 Executive Officer of the Department of Housing and Works

Human Reproductive Decision of the A Judge of the Supreme Unlimited. Technologies Act 1991, Commissioner of Health Court s 42

Jetties Act 1926, s 7A Chief Executive Officer Minister for Planning Unlimited. and Infrastructure

Land Administration Decision of the Minister Certain matters to the Unlimited. Act 1997, s 126 and 222 Land Valuation Tribunal, others to the Compensation Court

Land Drainage Act Decision of the Land Valuation Tribunal Unlimited. 1925, s 99 Corporation

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 181 Legislation Committee TWENTY-FOURTH REPORT

Legislation Type of Decision Right of Appeal Nature of Appeal

Land Tax Assessment Decision of the Small Claims Tribunal Unlimited. Act 2002, s 41 Commissioner of State Revenue

Land Valuers Licensing Decision of the Land District Court Unlimited. Act 1978, s 16 Valuers Licensing Board

Legal Contribution Decision of the Legal Supreme Court Unlimited. Trust Act 1967, s 28 Contribution Trust

Legal Practice Act Decision of the Legal Supreme Court Unlimited. 2003, s 44 Practice Board

Legal Practitioners Act (i) Decision of the Legal (i) Disciplinary Tribunal Unlimited. 1893, ss 3 and 6 Practice Board (ii) Supreme Court (ii) Disciplinary Tribunal

Licensed Surveyors Act Decision of the Land District Court Unlimited. 1909, s 22A Surveyors Licensing Board

Litter Act 1979, s 25 Notice served by a The Minister Unlimited. public authority

Local Government Decision of local The Minister for Local Unlimited. (Miscellaneous government Government Provisions) Act 1960, s 295

Local Government Act Decision of local The Minister or the Unlimited. 1995, s 9.8 government Local Court

Maritime Archaeology Decision of the Trustees Judge in chambers Unlimited. Act 1973, s 18 of the Museum

Marketing of Eggs Act Decision of the Western The Minister Unlimited. 1945, s 32 Australian Egg Marketing Board

182 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Legislation Type of Decision Right of Appeal Nature of Appeal

Marketing of Potatoes Decision of the Potato Certain matters to the Unlimited. Act 1946, ss 19 and 31 Marketing Corporation Minister, others to a of Western Australia Magistrate

Medical Act 1894, s 21 Decision of the Medical District Court Unlimited. Board

Mental Health Act Decision of the Mental Supreme Court (i) Person in respect of 1996, s 149 Health Review Board whom decision is made (Unlimited).

(ii) Other persons (leave of the court).

Metropolitan Region Decision of local Town Planning Appeal Unlimited. Town Planning Scheme government Tribunal Act 1959, s 35F

Metropolitan Water Decision of the Water Land Valuation Tribunal Unlimited. Authority Act 1982, s 43 Corporation

Metropolitan Water Decision of the Waters Local Court Unlimited. Supply, Sewerage, and and Rivers Commission Drainage Act 1909, s 57

Midland Redevelopment Decision of the Midland Town Planning Appeal Unlimited. Act 1999, s 52 Redevelopment Tribunal Authority

Motor Vehicle Dealers Decision of the Motor Local Court Unlimited. Act 1973, s 22 Vehicle Dealers Licensing Board

Motor Vehicle Drivers Decision of the Director Court of Petty Sessions Unlimited. Instructors Act 1963, s General of the 10 Department for Planning and Infrastructure

Nurses Act 1992, s 78 Decision of the Nurses Local Court Unlimited. Board

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 183 Legislation Committee TWENTY-FOURTH REPORT

Legislation Type of Decision Right of Appeal Nature of Appeal

Occupational Decision of the Local Court Unlimited. Therapists Registration Occupational Therapists Act 1980, s 33 Registration Board

Optical Dispensers Act Decision of the The Minister Unlimited. 1966, s 5 Permanent Head of the Health Department

Optometrists Act 1940, Decision of the Supreme Court Unlimited. s 31 Optometrists Registration Board

Osteopaths Act 1997, s Decision of the Supreme Court Unlimited. 89 Osteopaths Registration Board

Painters’ Registration Decision of the Painters’ A stipendiary magistrate Unlimited. Act 1961, s 18 Registration Board of the Local Court (whose decision is final)

Pawnbrokers and Decision of a licensing Court of Petty Sessions Unlimited. Second-hand Dealers officer Act 1994, s 30

Pay-roll Tax Decision of the Small Claims Tribunal Charitable bodies. Assessment Act 2002, s Commissioner of State Unlimited. 41 Revenue

Pearling Act 1990, s 33 Decision of the Director The Minister Unlimited. of Fisheries

Perth Parking Decision of the Chief The Minister Unlimited. Management Act 1999, Executive Officer of the s 17 Department of Planning and Infrastructure

Petroleum (Submerged Decision of the Minister Supreme Court Unlimited. Lands) Act 1982, s 92

Petroleum Act 1967, s Decision of the Minister Supreme Court Unlimited. 82

184 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Legislation Type of Decision Right of Appeal Nature of Appeal

Petroleum Pipelines Act Decision of the Minister Supreme Court Unlimited. 1969, s 54

Petroleum Retailers Decision of the The Minister (decision Unlimited. Rights and Liabilities Commissioner for Fair is final) Act 1982, s 5 Trading

Pharmacy Act 1964, ss Decision of the Judge of the Supreme Unlimited. 27 and 32B Pharmaceutical Council Court

Physiotherapists Act Registration and None specified No specific provisions 1950 disciplinary decisions of (Supreme Court?) relating to appeals. the Physiotherapists Registration Board

Pig Industry Valuation by the Chief The Minister Unlimited. Compensation Act Veterinary Surgeon or 1942, s 8 an approved person

Plant Diseases Act Decision of an Inspector The Minister Unlimited. 1914, s 18

Plant Pests and Decision of the Local Court (decision is Unlimited. Diseases (Eradication Agriculture Protection final) Funds) Act 1974, s 13 Board

Podiatrists Registration Decision of the Local Court Unlimited. Act 1984, s 33 Podiatrists Registration Board

Poisons Act 1964, s 29 Decision of the Magistrate sitting in a Unlimited. Commissioner of Health court of summary jurisdiction

Psychologists Decision of the Supreme Court Unlimited. Registration Act 1976, s Psychologists Board 44

Public Meetings and Decision of the Court of Petty Sessions Unlimited. Processions Act 1984, s Commissioner of Police 8

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 185 Legislation Committee TWENTY-FOURTH REPORT

Legislation Type of Decision Right of Appeal Nature of Appeal

Racing Penalties Decision of the Racing Penalty Appeals Unlimited. (Appeals) Act 1990, s 8 Commissioner of Police Tribunal or an approved officer

Radiation Safety Act Authorised officer Certain matters to the Unlimited. 1975, ss 12 and 54 Supreme Court, others to the Court of Petty Sessions

Rail Safety Act 1998, s Decision of the Director District Court Unlimited. 20 General of the Department for Planning and Infrastructure

Real Estate and Decision of the Real District Court Unlimited. Business Agents Act Estate and Business 1978, s 23 Agents Supervisory Board

Retirement Villages Act Decision of the referee (i) Retirement Villages (i)Unlimited. 1992, s 57 or administering body Disputes Tribunal (ii) DC- must involve (ii) District Court a question of jurisdiction of tribunal, or leave required where involves question of law.

Rights in Water and Decision of the Water Tribunal established Unlimited. Irrigation Act 1914, s and Rivers Commission under the Act 26GG

Road Traffic Act 1974, s Decision of the Director Court of Petty Sessions Unlimited. 25 General (decision is final)

Royal Agricultural Decision of the Royal The Minister Unlimited. Society Act 1926, s 3 Agricultural Society

Security and Related Decision of a licensing Court of Petty Sessions, Unlimited. Activities (Control) Act officer Magistrate sitting alone 1996, s 72

186 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Legislation Type of Decision Right of Appeal Nature of Appeal

Settlement Agents Act Decision of the District Court Unlimited. 1981, s 23 Settlement Agents Supervisory Board

Soil and Land Decision of the The Minister (decision Unlimited. Conservation Act 1945, Commissioner of Soil is final) ss 34 and 39 and Land Conservation

Stamp Act 1921, ss Decision of the Some exemptions for 75JA and 75JB Commissioner is non- corporate reviewable reconstructions.

State Superannuation Decision of the Supreme Court Judge Unlimited. Act 2000, s 13 Government Employees Superannuation Board

Strata Titles Act 1985, (i) Decision of local (i) The Minister Unlimited. ss 26 and 27 government (ii) The Town Planning (ii) Decision of the Appeal Tribunal Minister or the Western Australian Planning Commission

Subiaco Redevelopment Decision of the Subiaco Town Planning Appeal Unlimited. Act 1994, s 52 Redevelopment Tribunal Authority

Swan River Trust Act Decision of the Swan The Minister Unlimited. 1988, s 68 River Trust

Taxation Administration Decision of the Certain matters to the Unlimited. Act 2003, s 40 Commissioner of State Land Valuation Revenue Tribunal, others to the Supreme Court

Taxi Act 1994, s 37 Decision of the Director Local Court Unlimited. General of the Department for Planning and Infrastructure

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 187 Legislation Committee TWENTY-FOURTH REPORT

Legislation Type of Decision Right of Appeal Nature of Appeal

Town Planning and Decisions of bodies Town Planning Appeals Unlimited. Development Act 1928, conferred power under Tribunal s 47 the Act

Transport Co- Decision of the Minister Local Court Unlimited. ordination Act 1966, s 57

Travel Agents Act 1985, Decision of the District Court (decisions Unlimited. ss 23 and 25 Commercial Tribunal on questions of law may be taken to the Supreme Court)

Valuation of Land Act Decision of the Valuer- Land Valuation Tribunal Unlimited. 1978, s 33 General

Veterinary Preparations Decision of an Inspector Stipendiary Magistrate Unlimited. and Animal Feeding sitting as a court of Stuffs Act 1976, s 40 summary jurisdiction

Veterinary Surgeons Decision of the District Court Unlimited. Act 1960, ss 22 and 24B Veterinary Surgeons’ Board

Water Boards Act 1904, Decision of the Water Land Valuation Tribunal Unlimited. ss 88 and 89 Board

Water Services Decision of the The Minister Unlimited. Licensing Act 1995, s Economic Regulation 44 Authority

Waterways Decision of the Water The Minister (whose Unlimited. Conservation Act 1976, and Rivers Commission decision may be s 46 appealed to the Supreme Court)

188 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT

Legislation Type of Decision Right of Appeal Nature of Appeal

Western Australian Decisions of bodies Certain matters to the Unlimited. Marine Act 1982, ss 11 conferred power under Certificates of and 22 the Act Competency Appeal Authority, others to the Mercantile Marine Disciplinary Appeal Tribunal

Western Australian Decision of the Meat The Minister Unlimited. Meat Industry Authority Industry Authority Act 1976, s 22

Western Australian Decision of the Planning Town Planning Appeals Unlimited. Planning Commission Commission Tribunal Act 1985, s 37E

LOSS OF APPEAL RIGHTS UNDER THE TRANSITIONAL ARRANGEMENTS

9.22 The Law Society of Western Australia expressed concern at the likely impact of the transitional arrangements under the Conferral Bill. It was submitted that the legitimate expectations of parties as to how their matters will be determined may not be satisfied by the transitional provisions, particularly where certain subsequent avenues of appeal (such as to courts or Ministers) are lost in the transfer of matters to the SAT.294

THE ABOLITION OF PRIVATIVE CLAUSES

9.23 The phrase “privative clause” is defined in Butterworths Australian Legal Dictionary in the following terms:

“A provision in a statute purporting to preclude judicial review of a decision or regulation made under the jurisdiction or power conferred by that statute: for example, a clause to the effect that a decision of a tribunal shall be ‘final and conclusive’ (Hockey v Yelland (1984) 157 CLR 124 at 142.”295

294 Submission No 36 from The Law Society of Western Australia, November 11 2003, p5. 295 The Honourable Dr Peter E Nygh and Peter Butt (General Eds), Butterworths Australian Legal Dictionary, Butterworths, Sydney, 1997, p924.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 189 Legislation Committee TWENTY-FOURTH REPORT 9.24 A number of the matters that are proposed to go to the SAT are currently subject to privative clauses. For instance, s 5(10) of the Petroleum Retailers Rights and Liabilities Act 1982 states that:

“A retailer or other person referred to in this section who is aggrieved by a determination of the Commissioner made under subsection (9) may appeal to the Minister within 7 days of that determination and the decision of the Minister is final and conclusive.”

9.25 Ms Judy Eckert advised the Committee that:

“In the past there has been what is called a privative clause, where an Act says a person has a right of review to, say, the Local Court, from a decision made by a public official or a minister, but that decision of the Local Court is final. What will now happen is that that right of review will go to the State Administrative Tribunal, and there will be an appeal from the decision of SAT to the Supreme Court on a question of law, with leave of the Supreme Court. In effect, we have abolished privative clauses in this State. For example, the Aerial Spraying Control Act 1966 has a number of privative clauses in sections 8 and 13A. The conferral Bill, right near the start, abolishes those sections. That does create a new appeal right. In the light of recent comments by the High Court of Australia querying whether States have a right to take away a person’s right to such an appeal, we felt that it would be in line with those comments to give everyone that right of appeal, so that it is not one right of appeal from an administrative decision to a Local Court, it is now to SAT and onwards, on a question of law.”296

THE COST OF APPEALS

9.26 The SAT Bill provides for appeals against decisions of the SAT on a question of law. Such appeals may be taken through various stages right up to final determination by the High Court of Australia. The cost implications to the parties of such appeals are significant. This issue was pursued during a number of the Committee’s hearings by Hon Peter Foss MLC:

“Hon PETER FOSS: This raises a question that I needed to ask about the cost. One of the advantages of an appeal decision that is final is that it is final. If the case ends up in the High Court, it can potentially be a rather expensive exercise, although admittedly, it can

296 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p2.

190 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT just be abandoned. One of the things that people used to like to have was a second thought. If they got it, that was it; they did not want to get involved in a lengthy process. They need something quick. It must be remembered that they are all administrative decisions. People want to get on with their lives; they do not want to be caught up in a case that goes on forever, and never quite know whether they have a decision until the High Court rules on it. Would that not be a problem?

Ms Eckert: I accept that. I think there are probably greater advantages in saying that people have a right to have a case finally reviewed beyond, for example, the Local Court, to have a decision made.

Hon PETER FOSS: Advantages for whom?

Ms Eckert: For the public generally; to have that right to have a decision reviewed at a very senior judicial level, if it is necessary. Remember, it is only on a question of law.

Hon PETER FOSS: The point is that most individuals cannot afford to go to court. The mere fact that they are going to a thing called the tribunal, rather than the Local Court, is a bit of a worry in itself because it could be expensive. It might then give them the theoretical right to appeal to the High Court, but it is nothing more than a theoretical right, and the only people who can exercise that right are people who are filthy rich, or the Government.

Ms Eckert: We have taken the view that there were not a great number of appeals to the Local Court, for example, and a right of review to SAT will be much cheaper than the vast majority of administrative appeals, which were to the District Court or the Supreme Court. The first step in the review process will be cheaper for people. The issue of costs awarded against individuals in the administrative review area is something that will be at the discretion of the court.

Hon PETER FOSS: The suitor’s fund does not help you, for instance, if you are successful; it does not help with your solicitor- client costs, and that is where the killer is. It does not help you with the fact that it takes time. If you are in business and you want to appeal, it is nice to have the case over because you then know you can get on with your life. You either have an appeal in your favour or you do not, and you can get on with your life; what you do not want is to

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 191 Legislation Committee TWENTY-FOURTH REPORT have your life in suspension because you think you have won. The Government appeals and you know you are not going to get a decision for another two years. In the meantime, what do you do? If you do not use the right you have gained, you are stupid; if you do use the right you have gained and you go the other way, you are also stupid. You are left in limbo. One of the problems with justice now is that the time it takes is impossible for the ordinary person. He wants a decision quickly, he does not want lawyers involved and he wants to get out of it without another hearing.

Ms Eckert: You summed it up when you said it was a problem with justice. I do not think it is a problem with SAT as such. You need to bear in mind that the vast majority of matters will be dealt with quickly and inexpensively at the SAT level, but the majority will not go into appeal and lengthy processes. The removal of the privative clause will give people more rights, but it does work the other way as well.”297

9.27 The issue was again discussed in depth with representatives of the Law Society of Western Australia as follows:

“Mr Hardy: The committee has provided us with some interesting questions, which carry some assumptions. The first assumption is that it would be a bad thing if SAT were too legalistic. I am not sure that I necessarily agree with that because the contrary position is that if it is not legalistic, it is better. The second assumption is that if something is legalistic, it has the necessary effect of escalating fees. However, the evidence clearly indicates that matters are no more expeditiously dealt with or more cheaply conducted in the absence of lawyers. One of the great furphies that is repeated endlessly is that if lawyers were kept out of the process, it would be cheaper. My experience …is that litigants who appeared in person tended to be a significant factor in making proceedings slower, less streamlined and, therefore, more exhaustive of the whole process.

Hon PETER FOSS: I agree with that in reference to a legal system. However, that is not the case in a non-legal system such as the Small Claims Tribunal.

Mr Hardy: It is not the case. However, in so far as the Small Claims Tribunal is concerned, the experience that I have - and by necessity

297 Ibid, pp2-3.

192 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT that is anecdotal experience - is that there is a significant element of palm-tree justice. If you stand up, you get shot and you sit down.

Hon PETER FOSS: It is very effective, too.

Mr Hardy: It is very effective. With no disrespect to the people involved, nor to the amounts and issues involved, which to some people are substantial, the ultimate cost to the community of mistakes in a jurisdiction of that size is of lesser importance, I would suggest, than mistakes that may fall within the scope of SAT. By definition, the Small Claims Tribunal deals with relatively modest sums of money. I say “relatively” advisedly. Many matters before SAT will be of more enduring significance with regard to their cash value and non-cash components. I am very careful of the palm-tree justice approach for matters that go beyond minor pecuniary pursuits.

Hon PETER FOSS: I should not argue with you, but I point out one thing: courts make mistakes even within the legal framework.

Mr Hardy: Probably 50 per cent of the time, if you listen to most lawyers.

Hon PETER FOSS: They do make mistakes. Most members of Parliament have come across people who have been made victims because of mistakes made by the courts. The problem is that often people cannot afford to correct the mistakes made by the court because they cannot afford the appeal processes. Everyone makes mistakes. I do not know whether palm-tree justice has any greater incidence of mistakes than courts; it is just that there is no remedy.

Mr Hardy: That is correct. I will conclude by pointing to the Town Planning Tribunal, which is one of the prospective components of SAT. The Town Planning Tribunal has had quite a well defined regime to deal with costs and there is also a concomitant regime for avoiding overly prescriptive or overly legalistic procedures. My experience is that it works quite well. It works well because, firstly, in terms of legalism, if you like, there is a right for people to appear in person, there is a right for people to appear represented by non- lawyer agents and there is a right for people to appear by lawyers without there being any necessity for leave or the like. Secondly, it is a no cost jurisdiction unless a party is guilty of trivial or vexatious behaviour, which happens on occasions. However, by and large, it is a non-cost jurisdiction. It has a strong emphasis on mediation and resolving matters. My own experience is that about one in three

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 193 Legislation Committee TWENTY-FOURTH REPORT matters that I deal with are settled without the necessity for an appearance and two in three cases are settled either with the necessity of no appearance or of mediation. The market regulates the level of costs. The market reflects the significance of the subject matter and the amount of time required to be devoted to it.

There is a very strong correlation between those two concepts. There seems to be a fair degree of acceptance by all those involved in that jurisdiction that since the abolition of the ministerial appeal - the dual ministerial approach - and the consolidation of all appeals before the tribunal, and the appointment of a full-time president and full-time members, that the tribunal has become a very streamlined and efficient system in which one can commence an appeal and be given a decision as quickly as five or six weeks - sometime it can take longer - and at a modest cost. There has been no perceived necessity for a scale of costs. People are generally happy with the outcome, even if they have to bear their own costs, because of the efficiency of the system. If that is a straw in the wind for the way in which comparable exercises are to be undertaken for the purposes of SAT, it is not a bad model.

Hon PETER FOSS: Can you explain why everyone went to the minister when there was a choice?

Mr Hardy: There was a perception - in fact, it was the reality - that the tribunal in its then guise was slow and expensive. That perception was true, but only in part. Some ministerial decisions took in excess of 15 months to be handed down. There were a significant number of appeals to the minister that were perceived to be minor or petty matters that did not justify the structure and formalities of a tribunal appeal. For example, cases involving a two-lot subdivision, the building of a carport and minor strata title issues. The work of the tribunal was limited to 30 appeals a year.

Those cases were deemed significant either because of their size and cost or because of the pivotal nature of the issues in question. With the introduction of full-time members, the streamlining of the processes and the consolidation of all the appeals, the respective advantages of both those avenues have been consolidated and maintained, which is a good thing.

Hon PETER FOSS: The Town Planning Tribunal and the [Third Party] motor vehicle claims tribunal also started off in exactly the same way. They were both set up with the idea of providing a cheap

194 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 9: Appeals from the Proposed SAT and easy solution. They both started out as fresh new tribunals and decisions were made nice and quickly. However, a couple of years later both had become bogged down and expensive. They seemed to have lost that initial enthusiasm. Matters dealt with by the [Third Party] motor vehicle claims tribunal went to the District Court and the Town Planning Appeal Tribunal was replaced by a new one and will be replaced by SAT. Why is it not just a formal ossification of tribunals that leads to this?

Mr Hardy: I would be inclined to agree that that is part of the evolutionary process of any body of a judicial or quasi-judicial nature. I suspect that at least part of the reason for that is the necessity or desire to build a system of precedents and the care with which decisions are made so as to provide that certainty. If that leads to a degree of ossification, it is not necessarily undesirable. In so far as it conversely provides a sense of certainty to the area of law so that competent advice can be given based on the strength of a chain of precedent, it is a good thing. One can judge the efficacy of any judicial or quasi-judicial body only by taking the widest, holistic view of it by looking at the number of disputes that arise and which are settled without having recourse to that body. I can say from experience that bodies such as the Land Valuation Tribunal, the Medical Board and the Town Planning Appeal Tribunal deal with a lot of matters expeditiously because of the advantage of precedent, which is a product of that ossification of which you speak. That might not have been dealt with that way if everything had been approached on a completely fresh basis without the benefit of prior decisions.

Hon PETER FOSS: I accept that. It is an interesting point. It means one must go to somebody with that arcane knowledge to get that advice. The difficulty with this legislation is that there will be a principal Act, a referral Act and a SAT Act. Also, there will be rules, practice directions, practices and precedents, even before SAT has started. It sounds to me that in a short time there will be practitioners who know the jurisdiction and people will have to go to one of those practitioners to get any idea of how to work their way through the system.

Mr Hardy: There is some merit to that proposition. That is probably right. I am sure that on a regular basis lawyers get down on their knees and thank Governments for writing legislation because it is

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 195 Legislation Committee TWENTY-FOURTH REPORT legislation that provides that environment from which we all make money.”298

THE COMMITTEE’S OBSERVATIONS

9.28 The Committee is of the view that it is important that both the SAT Bill and relevant enabling Acts contain mechanisms to ensure that matters before the SAT do not escalate into long, drawn-out, formal proceedings with appeals on technical points of law all the way to the High Court of Australia.

298 Mr Michael Hardy and Ms Clare Thompson, Members, The Law Society of Western Australia, Transcript of Evidence, March 23 2004, pp6-8.

196 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 10 PRACTICAL ISSUES ASSOCIATED WITH THE IMPLEMENTATION OF THE PROPOSED SAT

10.1 The following practical issues associated with the implementation of the proposed SAT were brought to the Committee’s attention over the course of the inquiry.

CONSULTATION ON THE DEVELOPMENT AND IMPLEMENTATION OF THE PROPOSED SAT

10.2 Dr Neville Barber, the President of the MHRB was critical of the Government’s consultation process for the development and implementation of the proposed SAT, particularly given the specialised administrative requirements of the mental health jurisdiction. Dr Barber stated:

“I wish to also comment at this point on the need for proper consultation regarding SAT to ensure its success. A very curious and disappointing aspect of this legislation and its development has been the exceptional lack of consultation. As instructing officer for the Mental Health Bill 1996, I met on countless occasions with all relevant interest groups. In contrast, in relation to the SAT legislation, which I understand is the largest piece of legislation ever presented to this Parliament, there has been astonishingly little consultation with key agencies. Certainly, despite many requests, this board has been involved in just a single meeting regarding this legislation, at which the board’s views regarding the draft legislation were not sought. …[T]his lack of consultation has also extended to administrative matters that I believe should be mentioned, though they are perhaps beyond the immediate scope of your committee. Though the board has presented a number of detailed submissions regarding administrative issues with SAT to the SAT implementation team, that team has chosen not to respond to those submissions except in very broad terms. For example, there has been virtually no discussion with this board about the board’s files - now extending to more than 8 300 - how and where they will be stored, and whether or not they will be integrated with all other SAT files, nor about this board’s highly sophisticated case tracking system, which will not function properly with the new legislation. …I believe it is fair and accurate to say that the SAT implementation team has not yet

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 197 Legislation Committee TWENTY-FOURTH REPORT properly addressed any of the board’s administrative concerns, let alone its concerns regarding the legislation.”299

10.3 The Committee also understands that a number of boards, tribunals, departments and consumer and industry groups felt that they were being presented with a fait accompli, with no opportunity to provide genuine feedback.300 As one submission noted:

“SAT will make a significant difference to the legal system [in] WA, and yet there has been very little information about the Tribunal [in] the press, and so very little opportunity and time for public debate. Given that the building refurbishment has taken place, before the legislation has been enacted, it appears that WA consumers are being presented with a fait accompli. Whilst we agree in principle with the formation of SAT we do have concerns about some aspects of SAT and the openness of the implementation process.”301

10.4 Mr Andrew Marshall, Project Director for the SAT, outlined the consultation process for the development and implementation of the SAT as follows:302

• The establishment of the SAT was an election commitment of the Government.

• WACARTT was formed soon after the February 2001 election to develop a proposal for the establishment of the SAT. The taskforce reported in May 2002, and its report provided a blueprint for the establishment of the SAT and the development of the legislation. The report was first distributed in draft form for feedback and again in final form for comment.

• Feedback on the WACARTT report was received from virtually all of the people to whom the consultative draft was sent. The letter accompanying the draft asked ministers and CEOs in particular to pass on the report to relevant officers in their departments and agencies.

• The various pieces of legislation necessary to establish the SAT were introduced into the Legislative Assembly on June 24 2003. The draft legislation was distributed to an extensive range of stakeholders.

299 Dr Neville Barber, President, Mental Health Review Board, Transcript of Evidence, March 23 2004, pp3- 4. 300 For instance, Submission No 40, joint submission of the members of the Guardianship and Administration Board, undated (received November 14 2003), p8. 301 Submission No 16 from Consumers’ Association of WA, Second Submission, November 2003, p3. 302 Mr Andrew Marshall, Project Director, State Administrative Tribunal Project, Transcript of Evidence, April 5 2004, p2.

198 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 10: Practical Implementation Issues • Feedback was collated from stakeholders. During this process, Mr Marshall acted as a filter for Ms Judy Eckert, the instructing officer, as there was a substantial amount of feedback.

• The consultation process for the development of the infrastructure for the SAT proceeded according to a plan developed by Mr Marshall in consultation with other Department of Justice officers. Those stakeholders most directly affected by SAT - for example, members and staff of those boards and tribunals whose entire functions are proposed to be subsumed by the SAT - were consulted first. Once this priority had been achieved, stakeholders less directly affected by SAT were targeted. Examples in this category include part of the functions of vocational boards that are to be transferred to the SAT.

• The next stage of the plan involved consultation with groups such as Racing and Wagering Western Australia (RWWA) and the Health Consumers’ Council WA.

• The process of broad infrastructure development, as opposed to more detailed processes which are more dependent on the legislation, involved consultation with an extensive list of stakeholders ranging from the MHRB and the GAB to the RPAT and the Retirement Villages Disputes Tribunal.

10.5 Mr Marshall stated that:

“Despite the inevitable pressure of time and resources, every effort has been taken to ensure the consultation process has been as broad ranging and as comprehensive as humanly possible. I believe the consultation process has been extensive and fair. Importantly, major bodies that are to be incorporated in SAT, for example, GAB and MHRB - to use their short form - have received regular, personal and ongoing attention.”303

10.6 Mr Marshall provided the Committee with detailed lists of the individuals and organizations that were consulted on the development and implementation of the SAT.304

Committee Finding

Based on evidence provided during the course of the inquiry the Committee found the consultation process was unsatisfactory in that it was inadequate, one-way and patchy.

303 Ibid. 304 Mr Andrew Marshall, Project Director, State Administrative Tribunal Project, papers tabled at hearing, April 5 2004.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 199 Legislation Committee TWENTY-FOURTH REPORT

FITTINGS AND LAYOUT OF THE PROPOSED SAT

10.7 Amongst the main objectives of the SAT, as set out in cl 9(b) of the SAT Bill, is:

“… to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties.”

10.8 The Committee notes that the design of mediation or hearing rooms can have a significant impact on the behaviour of the people that use them.

10.9 During the Committee’s site visit on March 29 2004 of 12 St George’s Terrace, Perth, the premises that have been fitted out over several floors for the proposed SAT, the Committee identified a number of unsatisfactory aspects of the design of some of the hearing rooms that had been established.

Client Access to the SAT Building

10.10 The problems of client access to 12 St George’s Terrace when it first commenced housing those bodies that are proposed to be amalgamated into the SAT was vividly outlined to the Committee by Canon Leslie Goode, a member of the GAB:

“At six o’clock the revolving door is locked. No-one checked to see if anyone was in it. People were actually locked in it. As it happened they were not disabled people, but it took an hour to extract them from there; that is, to find security guards who had the combination. That is one example. We had not even got in there then. The Town Planning Tribunal was already in the premises. As we came out of the premises on that day, a van pulled up at a public bus stop that was a no parking area. The driver was obviously on his way to the town planning commission. Fortunately, he had somebody with him. He opened the back of his van and threw his maps, tripods and all the rest of it into the gutter. While his friend stood and guarded them, he went off to try to park his van. I pictured that involving someone with a person in a wheelchair or a demented granny, saying, “Just stay there, granny. I’ll be back.”

Another example is when a disabled person was trapped. The person had actually fallen in the revolving door. It was only because the concierge who was supplied by the owners of the premises was there that he was able with some difficulty to rescue that lady, but she was very badly shaken. One member of our board is wheelchair-bound. It is extraordinarily difficult for him to access the premises. It is a test of ingenuity. He must ring when he is on his way so that he warns people that he is coming and so that space is available for him in the back of the place. We came out today through what is called the secure

200 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 10: Practical Implementation Issues departure exit. People walk out of the lift door and then down two steps, which he is supposed to negotiate in a wheelchair. There are then another three steps. When people get to the car park level there is yet another one. That is supposed to be wheelchair accessible. The requirement was described to the planners before we went there.

As far as the other door is concerned, when you face the building there is a huge revolving door and off to your right is a wall of very black marbly stuff - probably plastic. You must look on that for either a place to put a card or a button to press. Then when the door opens, there is a ramp in front of you. However, if your eyesight is not so good and you are in a wheelchair, you would have quite a difficult time getting in. When you come up to the fourth floor where the board’s hearing rooms are located, the lift opens onto a central pillar, which I understand cannot be moved because the building would fall down. Fixed seating has been put around that pillar, so that if you come out of the lift in a wheelchair, you must make a very sharp right or left turn if you leave the central lift.”305

10.11 Some of these issues are pursued further in CHAPTER 14. The Committee notes that Canon Goode’s concerns about the lack of signage, both in relation to wheelchair access and the locking of the revolving doors at 6:00pm, were addressed by the Government subsequent to Canon Goode’s evidence being provided to the Committee.

The Court-like Design of Hearing Rooms

10.12 The proposed SAT hearing rooms are designed to resemble courtrooms, apart from a number of very small meeting rooms where mediations and various interlocutory matters could be dealt with around a simple round table.

10.13 The tribunal members’ ‘bench’ is raised in most of the hearing rooms and is clearly separated from the parties’ ‘bar table’. Witness boxes are also provided in each of these hearing rooms, which seem out of place in a jurisdiction where the rules of evidence do not apply (cl 32, SAT Bill).

10.14 One of the hearing rooms had what the Committee thought was a curious ‘cattle-pen’ design, which appeared to the Committee to be particularly intimidating and inappropriate for either informal or formal tribunal proceedings. This hearing room, like a number of others in the building, also did not have any natural light.

305 Canon Leslie Goode, Member, Guardianship and Administration Board, Transcript of Evidence, March 17 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 201 Legislation Committee TWENTY-FOURTH REPORT 10.15 The Committee acknowledges that there will be some matters that will come to the SAT that will require a degree of formality, such as certain professional disciplinary matters. However, the Committee anticipates that such matters will be in the minority and that only one or two formal courtroom type hearings rooms would suffice.

10.16 During the Committee’s visit to both the VCAT and ADT premises in early August 2004, the Committee noted a marked contrast in the design of tribunal hearing rooms between these two bodies. VCAT, like the proposed SAT premises, had hearing rooms that were predominantly fitted out like courtrooms. However, a number of the rooms used in VCAT planning matters were, in the Committee’s view, very well designed, with a single large oval shaped table at which the members, parties and witnesses could all sit together.

10.17 The ADT’s hearing rooms, however, were designed in a much more informal, less intimidating, layout. Significantly, the tribunal members’ bench was lowered to the same level as the parties’ table in the more formal hearing rooms. The Committee gained the impression that the ADT hearing rooms were designed so that the tribunal members seek to control the proceedings by virtue of their inherent authority rather than relying upon the design and furniture of the rooms to confer a ‘court-like’ authority on the proceedings.

ACCESSIBILITY AND SECURITY FOR TRIBUNAL MEMBERS

Elevator

10.18 The premises at 12 St George’s Terrace, Perth, include a tenants’ elevator that provides access to the secure, internal office sections, of only certain floors of the building, depending on the design and layout of each floor.306 A secure elevator is important to ensure that tribunal members can enter and exit the building without the possibility of coming into contact with any of the parties or witnesses in the cases that they are involved in. Such an arrangement is essential from both a security and natural justice (that is, avoidance of any appearance of bias) aspect.

10.19 Unfortunately, not all of the floors of 12 St George’s Terrace, Perth, have a secure elevator access. The issue of the GAB members travelling between the fourth floor hearing rooms and their ninth floor offices in the public elevator was raised with Mr Andrew Marshall, Project Director for the SAT, who provided the following response:

“The lift to the ninth floor where currently the board members have their offices - temporarily the board members have their offices - are the same lifts that the public uses. Our advice to board members is that when they leave a hearing and if they believe there are some

306 Mr Andrew Marshall, Project Director, State Administrative Tribunal, Transcript of Evidence, April 5 2004, p4.

202 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 10: Practical Implementation Issues agitated parties after the hearing - they can see through a glass panel in the door whether the foyer is occupied or not - they contact the security guard to clear the foyer before they proceed in the lift up to the ninth floor.”307

10.20 The elevator is also only accessible at the tenants’ car park level by way of a small staircase. The elevator is thus impractical for wheelchair access.

10.21 The Committee is aware of at least one current member of a tribunal, which is proposed to be incorporated within the SAT (and which has already been relocated to 12 St George’s Terrace), who requires wheelchair access to 12 St George’s Terrace. The Committee understands that that member is currently required to access the building via the front lobby, through the general public entrance.308

Guardianship and Mental Health Hearing Rooms

10.22 The Committee was concerned that the hearing rooms at 12 St George’s Terrace designated for guardianship and mental health matters are not suitable from a security point of view. The Committee noted that large pot plants had been used to form a barrier at either side of the parties’ table to prevent physical contact with the tribunal members. The Committee is of the view that a more practical and secure design is required for hearings in these more sensitive jurisdictions.

10.23 This issue was raised with Mr Andrew Marshall, Project Director for the SAT, who responded in the following terms:

“[T]here was an incident involving a member of the Guardianship and Administration Board, who was sitting in a one-person hearing with one client and a security officer. The Guardianship and Administration Board has a risk assessment process that provides that if it is a client with whom it has had previous experience and who may get agitated, either of the security officers will sit in the hearing or be made to sit outside - it depends on the rating. In this case, the rating was high and the officer sat inside the building. Subsequent to that incident, we have contracted a company to carry out a second security review of the design and layout of the fourth floor, which is essentially reserved for the guardianship board. That will look at whether any improvements can be made to the hearing room layouts

307 Ibid. 308 Canon Leslie Goode, Member, Guardianship and Administration Board, Transcript of Evidence, March 17 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 203 Legislation Committee TWENTY-FOURTH REPORT to better prevent this sort of incident. It also involves the safety of GAB members when they are coming to or leaving a hearing.”309

The Largest Hearing Room

10.24 The Committee noted that the largest of the hearing rooms in the proposed SAT premises, whilst being fitted out with the latest technology (including plasma television monitors), was dominated by a large concrete pillar in the centre of the room.

10.25 In the Committee’s view the concrete pillar posed a potential security problem as it was positioned directly between the tribunal member/s and the public gallery.

THE OPERATION OF THE PROPOSED SAT IN RURAL AND REMOTE AREAS OF THE STATE

10.26 As noted at para 4.75, a significant factor in the exclusion from the jurisdiction of the proposed SAT of many of the small scale civil disputes currently handled by the Local Court was the logistical problem of equipping the SAT to operate in those rural and remote areas of the State that are currently serviced by magistrates.

10.27 Nevertheless, it is anticipated that some of the matters that will come before the SAT will need to be heard in rural and remote areas if SAT is to provide an effective service to all Western Australians.

10.28 The proposed SAT provides for the appointment of magistrates as tribunal members (cl 115 of the SAT Bill 2003).

10.29 In a recent paper, the Honourable Justices Michael Barker and Ralph Simmonds of the Supreme Court of Western Australia stated:

“Geographical considerations play an important part in the organisation and operation of any court or administrative tribunal. In a State the size of Western Australia these considerations loom large. It might be expected that the tribunal would be based in the capital city of Perth, but would, where appropriate, sit in country and regional areas of the State. To permit the more effective delivery of its services in outlying areas, it may also prove useful to appoint local Magistrates as members of the tribunal to determine particular types of applications, as suggested by the [WACARTT].”310

309 Mr Andrew Marshall, Project Director, State Administrative Tribunal, Transcript of Evidence, April 5 2004, p4. 310 The Honourable Justice Michael barker and the Honourable Justice Ralph Simmonds, Delivering Administrative Justice: The Role of Tribunals, paper presented at the Australasian Law Reform Agencies Conference, Wellington, New Zealand, April 13-16 2004, p43.

204 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 10: Practical Implementation Issues 10.30 The Committee is concerned about the practical operation of the SAT in rural and remote areas of the State. It is anticipated that the SAT will go on circuit throughout Western Australia, but that this would not provide an adequate service. From a practical point of view, it would make sense to appoint all magistrates outside the metropolitan area to the SAT to deal with individual SAT matters as they arise as part of their ordinary circuit commitments. However, an administrative issue arises from cl 11 of the SAT Bill 2003 in that the President of the SAT is responsible for specifying how each tribunal is to be constituted. This requirement for the President to personally appoint each tribunal would appear to prevent a general delegation of the SAT’s powers to all magistrates operating outside of the metropolitan area.

10.31 The Committee sees the potential for significant administrative difficulties in this arrangement, particularly when issues such as tribunal members’ leave arrangements and the availability of transport and communication services in rural and remote areas are taken into account.

10.32 The Chief Magistrate advised the Committee that, so long as the sitting patterns of the SAT reflect those of the existing boards and tribunals to be amalgamated into the SAT, he would not see any significant difficulties in appointing magistrates to the SAT on a case by case basis.311 However, were there to be a change to listing practices or a transfer to the SAT of jurisdictions that require a greater presence in rural and remote areas than under the relevant current appeal systems (such as the transfer of certain ministerial appeals in planning and agricultural matters to the SAT), then the Chief Magistrate acknowledges that the availability of magistrates to serve on SAT could pose problems:

“As the Committee would be aware in recent times there has been significant increases in the jurisdiction of the Magistrates Court. This has significantly increased the workload of all Magistrates and has placed particular pressure in some country locations. Any significant increase in workload brought about by the need to deal with SAT matters will lead to significant delays, not only in SAT matters, but also in criminal, civil and other matters dealt with by Magistrates. The only way to avoid such problems would be to appoint additional Magistrates to service the country areas.

If that is to occur then it becomes a question whether is it more expedient to appoint additional members of SAT to travel to these locations or to appoint additional Magistrates who can perform both the functions under SAT and under the various other pieces of legislation within the jurisdiction of Magistrates.”312

311 Letter from Mr Steven Heath, Chief Magistrate, August 27 2004, pp1-2. 312 Ibid, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 205 Legislation Committee TWENTY-FOURTH REPORT 10.33 The Committee is of the view that all magistrates sitting outside of the metropolitan area should be made ex officio members of the SAT, acting under a general delegation of the President of the SAT. The practical problems that may arise from a specific appointment to a tribunal to hear a certain matter in a remote area of the State was described to the Committee by Ms Julie Wager, Stipendiary Magistrate, with respect to her experience of the Children’s Court:

“Hon PETER FOSS: One solution is to say that all magistrates outside the metropolitan area are members of the tribunal. However, the [SAT] Bill requires the president to determine who will hear it in respect to every matter. That is a problem in itself. If a matter then has to be filed - there is no provision for registries outside metropolitan area - it might have to be sent in. It will then have to be determined by the president, who could say that the magistrate has determined it. Of course, generally, there is a regular circuit but sometimes magistrates swap over because someone has gone on holiday or leave; one never knows what is going to happen. It is quite likely that a totally different magistrate will be on circuit at that particular time.

Ms Wager: Which presently happens with Children’s Court matters, where it is necessary to get extended powers from the president. …I can see that it could be an administrative nightmare. Referring back to the extended powers of the president, for example, I was relieving in Oombulgurri a couple of weeks ago. Just getting through to the president in order to get permission while hanging around in a remote community is difficult. It does not really promote respect for the office when one is hanging around waiting.”313

10.34 The Committee is accordingly of the opinion that it would be impractical to appoint magistrates to the SAT individually, on a case by case basis. The preferable approach is for the President to have broad powers of delegation.

10.35 As the Chief Magistrate has identified resourcing issues if magistrates are to be called upon often to exercise the jurisdiction of the SAT, the Committee is of the view that the nature of the delegation from the President to magistrates is a matter for negotiation between the President and the Chief Magistrate.

10.36 The Committee draws to the attention of the Legislative Council the fact that the Committee’s following recommendations 30 and 31 are to be read as a package.

313 Ms Julie Wager, Stipendiary Magistrate, Transcript of Evidence, (inquiry in relation to the Magistrates Court Bill 2003, Magistrates Court (Civil Proceedings) Bill 2003 and Courts Legislation Amendment and Repeal Bill 2003), August 16 2004, p12.

206 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 10: Practical Implementation Issues

Clause 3

Page 4, after line 16 — To insert —

“

(aa) a magistrate performing functions as a member of the Tribunal; or

”.

Page 4, line 28 — To delete “or” and insert a comma instead.

Page 4, line 28 — To insert after “Deputy President” —

“ or an ex officio member ”.

Page 4, line 30 — To delete “or”.

Page 4, line 30 — To insert after “member” —

“ or an ex officio member ”.

Page 6, line 7 — To insert after “is” —

“ appointed, or authorised to perform functions, as ”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 207 Legislation Committee TWENTY-FOURTH REPORT

Clause 106

Page 64, after line 8 — To insert —

“

(aa) ex officio members under Subdivision 3a;

”.

Clause 115

Page 67, line 28 — To delete “or” and insert a comma instead.

Page 67, line 28 — To insert after “Deputy President” —

“ or an ex officio member ”.

Page 68, lines 14 to 16 — To delete the lines.

Page 68, lines 19 and 20 — To delete “and, in the case of a magistrate, the Chief

Stipendiary Magistrate,”.

Clause 147

Page 83, line 5 — To insert after “than” —

“ — (a) ”.

Page 83, line 5 — To insert after “President” —

“

; or

(b) a magistrate performing functions as a member of the Tribunal.

”.

208 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 10: Practical Implementation Issues

Page 67, after line 24 — To insert —

“

Subdivision 3a — Ex officio members

114A. Magistrates to be ex officio members

(1) A magistrate is ex officio a member of the Tribunal.

(2) The President and the Chief Stipendiary Magistrate may enter into arrangements regarding the performance by magistrates of functions as members of the Tribunal.

(3) A magistrate is not authorised to perform any function as a member of the Tribunal except —

(a) when performing functions as a magistrate, as directed by the Chief Stipendiary Magistrate, in a place that is prescribed by the regulations for the purposes of this section; and

(b) as authorised by, and in conformity with, any relevant arrangements entered into under subsection (1).

”.

THE PROVISION OF ASSISTANCE TO UNREPRESENTED LITIGANTS

10.37 From the Committee’s consultation with user groups of the VCAT and the ADT, it became clear that an effective administrative tribunal must allocate significant resources to ensuring the accessibility of its proceedings to unrepresented parties.

10.38 As well as the provision of sufficient numbers of trained counter staff, the tribunal’s forms and information brochures must be written in simple English, with foreign language translations also available.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 209 Legislation Committee TWENTY-FOURTH REPORT 10.39 The Committee notes that the VCAT users have access to a duty lawyer scheme operated by Victoria Legal Aid based on the ground floor of the VCAT’s premises.314 The Committee is of the view that a similar scheme should operate at the SAT’s premises.

10.40 Alternatively, or supplemental to a duty lawyer scheme, a duty paralegal could be employed to assist unrepresented litigants with basic procedural advice. It was also suggested to the Committee by some of the VCAT user groups that it consulted that a tribunal member could be made available each day at the SAT premises to sit as a kind of ‘chamber magistrate’ to deal with any procedural issues concerning the initial lodgement of applications.

Recommendation 32: The Committee recommends that the proposed State Administrative Tribunal have a well-resourced duty lawyer scheme.

RULES COMMITTEE

10.41 Clauses 166 and 167 of the SAT Bill state as follows:

“166. Tribunal’s rules

(1) The Rules Committee may make rules of the Tribunal prescribing all matters that are required or permitted by this Act to be prescribed by the rules, or are necessary or convenient to be prescribed by the rules for giving effect to the purposes of this Act.

(2) Without limiting subsection (1), rules may be made about —

(a) the organisation and management of the business of the Tribunal;

(b) the practice and procedure governing the business of the Tribunal; and

314 Victorian Civil and Administrative Tribunal, 2001-02 Annual Report, September 30 2002, p6.

210 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 10: Practical Implementation Issues 167. Rules Committee

(1) A committee (the “Rules Committee”) is established consisting of each judicial member and the non-judicial members for the time being specified under subsection (2) by the President.

(2) The President is to specify from time to time which non-judicial members are members of the Rules Committee.

(3) The membership of the Rules Committee is to include senior members and ordinary members and is to be structured so as to draw on experience in both the original jurisdiction and the review jurisdiction of the Tribunal.”

10.42 The Law Society of New South Wales suggested that the Rules Committee established under cl 167 of the SAT Bill should also expressly include representatives from the legal profession and other peak bodies and user groups as appropriate.315

10.43 The Law Society of New South Wales also went on to note that:

“Emphasis should also be placed on developing draft rules that can receive wider comment before they are put into effect. Also, the use of the word, “rules”, would be avoided to avoid confusion about the nature of the tribunal (not being a court) as being part of the Executive Government dealing with the substantial merits of matters and applying the applicable law (and not interpreting the law).”316

10.44 It was suggested to the Committee by the Law Society of New South Wales that the word “procedures” may be a more appropriate expression than the legalistic “rules”.

10.45 The Committee is of the view that the membership of the proposed SAT’s Rules Committee should be extended to include representatives of the SAT’s user groups.

315 Letter from Mr Gordon Salier, President, The Law Society of New South Wales, August 6 2004, p5. 316 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 211 Legislation Committee TWENTY-FOURTH REPORT

Page 95, line 26 — To delete “and” and insert a comma instead.

Page 95, line 26 — To insert after “President” —

“

and 2 persons appointed by the Minister who are not Tribunal members but have knowledge and experience that is relevant to matters that may be decided by the Tribunal

”.

212 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 11 REGULATION OF OCCUPATIONAL GROUPS BY THE PROPOSED SAT

VOCATIONAL GROUPS TO BE REGULATED BY THE PROPOSED SAT

11.1 Pursuant to the Conferral Bill the proposed SAT will assume a review role in the registration and a primary role in the disciplining of the following occupations:317

• Architects;

• Builders;

• Chiropractors;

• Credit Providers;

• Debt Collectors;

• Dentists;

• Dental Prosthetists;

• Doctors;

• Electricians;

• Employment Agents;

• Finance Brokers;

• Gas Fitters;

• Hairdressers;

• Land Surveyors;

• Land Valuers;

• Legal Practitioners;

317 Department of Justice, State Administrative Tribunal, Briefing Paper, provided to the Committee on March 8 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 213 Legislation Committee TWENTY-FOURTH REPORT • Persons working in the Human Reproductive Technology area;

• Motor Vehicle Dealers;

• Motor Vehicle Driving Instructors;

• Nurses;

• Occupational Therapists;

• Optometrists;

• Osteopaths;

• Painters;

• Pawnbrokers and Second Hand Dealers;

• Pharmacists;

• Physiotherapists;

• Plumbers;

• Podiatrists;

• Psychologists;

• Real Estate and Business Agents;

• Security Agents;

• Settlement Agents;

• Travel Agents; and

• Veterinary Surgeons.

PROCEDURE WITHIN THE DISCIPLINARY JURISDICTION OF THE PROPOSED SAT

Public Hearings

11.2 Clause 61 of the SAT Bill states:

“61. Public hearings

214 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT (1) Unless another provision of this Act provides otherwise, hearings of the Tribunal are to be held in public.

(2) On the application of a party or on its own initiative the Tribunal may, in the circumstances described in subsection (4), order that a hearing or any part of it be held in private.

(3) The Tribunal’s power to make an order under subsection (2) is exercisable by —

(a) a legally qualified member; or

(b) the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member.

(4) The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so —

(a) to avoid endangering the national or international security of Western Australia or Australia;

(b) to avoid damaging inter-governmental relations;

(d) to avoid endangering the physical or mental health or safety of any person;

(e) to avoid offending public decency or morality;

(f) to avoid the publication of confidential information or information the publication of which would be contrary to the public interest; or

(g) for any other reason in the interests of justice.”

11.3 The Law Society of Western Australia queried the appropriateness of cl 61(1), particularly given the proposed SAT’s disciplinary jurisdiction. It noted that:318

• given the types of allegations and conduct dealt with in disciplinary hearings, there appears to be no overriding public interest in holding these hearings in public;

318 Submission No 36 from The Law Society of Western Australia, November 11 2003, pp2-3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 215 Legislation Committee TWENTY-FOURTH REPORT • in the absence of rules of evidence and procedure, some of the allegations made in the course of a hearing can be extremely damaging;

• allegations which have the potential to damage a person’s reputation should be private until a finding has been made in relation to their substance;

• occupational disciplinary hearings should be held in private unless the interest of justice require that the hearing be held in public;

• if hearings are held in public, then SAT should have the power and discretion to order that hearings be held either wholly or partially in camera and to make suppression orders; and

• those allegations of a criminal nature will be the subject of criminal prosecutions which will be held in public at a later date.

11.4 The Government submitted that it is appropriate and consistent with current practices in the courts that hearings in SAT should be open to the public.319 It was stressed that there are safeguards in cl 61 of the SAT Bill to ensure that certain information is not disclosed. The Government also noted that currently only four of the enabling Acts transferring vocational jurisdiction to the SAT specify that hearings must be held in private.320

11.5 The Committee was initially inclined to support the view that the SAT Bill should expressly provide that occupational disciplinary proceedings before the SAT be conducted in private, with adverse decisions subsequently being made public (subject to the deletion, at the discretion of the SAT, of any information to protect any victim of the breach of discipline). The Committee, however, noted the Government’s arguments that only a small number of professions currently conduct disciplinary hearings in private (such as lawyers and osteopaths), and that it would amount to a significant change in the law to introduce such a requirement for all professions that will be subject to the disciplinary jurisdiction of the SAT. Having reviewed the material, the Committee has decided that in the interests of uniformity it will support the Government’s policy that all vocational disciplinary proceedings be held in public, unless the SAT in its discretion decides otherwise.

11.6 The Committee also considered whether it was necessary to amend the SAT Bill to provide the SAT with a suppression power for those circumstances where information comes to light during public proceedings that, if the SAT had known about the

319 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, June 17 2004, Attachment: “Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submissions made to the Committee on the SAT Bills”, p13. 320 Ibid.

216 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT information prior to the commencement of those proceedings, the SAT would ordinarily have conducted the proceedings in private. The Committee was advised by the Government, however, that such a situation would be adequately covered by the SAT’s powers under cl 62(3) of the SAT Bill.321

The Removal of Investigatory Powers from Vocational Bodies

11.7 A number of vocational bodies expressed concern at the proposed loss of their investigatory powers in disciplinary matters under the Conferral Bill (for example, the Builders’ Registration Board of Western Australia (BRB), and the Pharmaceutical Council of Western Australia). The Committee queried the Government’s reasoning in removing the investigatory powers of various vocational upon the commencement of the SAT. The Committee requested advice from the Government as to whether the proposed SAT would take on this investigatory role itself and, if so, what resources are to be provided to the SAT to carry out such investigations.

11.8 The Government responded that SAT would not be an investigatory body and would not be carrying out investigative functions on behalf of vocational bodies. Ms Eckert, the instructing officer on the SAT legislation, explained that:

“The retention of investigatory powers for each vocational body was discussed with Parliamentary Counsel in some detail during drafting of the Conferral Bill. Where the powers were deleted it was because we were of the view that the powers were no longer required. In some instances I deferred back to Parliamentary Counsel but they remained of the view that the powers were either redundant or repetitive, or had been adequately given to inspectors on behalf of the relevant board. It was not by mere accidental oversight that the powers were removed.”322

SUBMISSIONS RECEIVED IN RELATION TO THE PROPOSED LEGISLATION FROM VARIOUS OCCUPATIONS

Architects

11.9 Architects are currently regulated in Western Australia by the 10-member Architects’ Board of Western Australia, established under the Architects Act 1921.

11.10 Appeals against registration decisions of the Architects’ Board of Western Australia are made to the District Court under s 16 of the Architects Act 1921. Appeals against disciplinary action taken by the Architects’ Board of Western Australia against an

321 Letter from Mr Greg Calcutt, Parliamentary Counsel, October 8 2004, p10. 322 Letter from Ms Judy Eckert, Instructing Officer for the State Administrative Tribunal Legislation, August 15 2004, p5.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 217 Legislation Committee TWENTY-FOURTH REPORT architect for misconduct may be made to the District Court under s 22A of the Architects Act 1921.

11.11 The Architects Bill 2003, which is currently before the Legislative Council, proposes the establishment of a new Architects Board of Western Australia as the registration authority for architects in Western Australia. It is proposed that licensing decisions of this new Architects Board of Western Australia may be appealed to the proposed SAT pursuant to cl 61 of the Architects Bill 2003. Disciplinary matters are to be referred by the new Architects Board of Western Australia to the proposed SAT for determination pursuant to cl 57 of the Architects Bill 2003.

11.12 The Royal Australian Institute of Architects advised the Committee that its preferred option was to maintain its profession’s current board system separate from the proposed SAT.323

Builders

11.13 The BRB has responsibility for registering builders and regulating the building profession by providing dispute resolution for contractual and workmanship issues via the Building Disputes Tribunal (BDT). Disciplinary action is taken against builders through the BRB, which consists of a legal practitioner as Chairman and six members representing the interests of consumers and industry.324

11.14 In 2002-03, local councils issued 18,483 building licences throughout Western Australia for new dwellings, extensions and associated work. Over the same period, 544 complaints were lodged against builders.325

11.15 Under Division 15 of the Conferral Bill, the proposed SAT will assume the disciplinary and adjudicative functions of the BRB.

11.16 The BRB expressed concern at the loss of its investigative and disciplinary function to the proposed SAT. It submitted that both it and the BDT should maintain their current role, with the SAT merely replacing the District Court as a less expensive appeal option from decisions of the BRB.326

11.17 The Master Builders Association of Western Australia (MBA) submitted that:

323 Letter from Mr Pat Pinder FRAIA, WA Chapter President, The Royal Australian Institute of Architects, May 31 2004, p1. 324 Submission No 21 from Builders’ Registration Board of Western Australia, November 10 2003, p1. 325 Submission No 19 from Housing Industry Association; Master Builders Association; Royal Australian Institute of Architects; Construction Contractors’ Association of WA; and Consumers’ Association of WA, November 10 2003, p6. 326 Submission No 21 from Builders’ Registration Board of Western Australia, November 10 2003, pp1-2.

218 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT “The Builders Registration Board has operated well in Western Australia for over 60 years. It is a self-funding organisation whose operations would be diluted if the proposed SAT model was introduced. MBA has no criticism of the current “industry specific” arrangements. If the SAT model is to be introduced the Builders Registration Board should not be part of the proposed reforms.”327

11.18 In a joint submission from consumers and industry, it was submitted that the BRB should retain its current role. A key factor in their opposition to the proposal was the cost and legal formality of the adversarial SAT and its appeal mechanism on a question of law to the Supreme Court (and then possibly the High Court of Australia) as opposed to the current inquisitorial BRB with an appeal lying to the District Court.328 The joint submission notes:

“On some occasions the Board has inquired into what may be perceived to be relatively minor matters which have, as a result of the inquisitorial nature of the Board, led to the detection of serious contraventions against the Builders’ Registration Act and uncovered poor building practices and standards within the industry. Industry and consumers feel that builders in general are aware of the Board’s powers and that building quality may begin to be compromised once SAT assumes the disciplinary functions of the BRB.

The BRB currently has the ability to contain minor matters before they worsen into more serious breaches, by having the power to reprimand a builder. This is unlikely to occur under the proposed SAT legislation. Consumers and industry believe it is critical to deal with minor non-compliance matters early to prevent them escalating into more serious breaches.”329

11.19 The Committee invited the Government to respond to the above comments. The Committee was advised that the Attorney General has indicated support for vocational bodies developing their own appropriate summary jurisdictions for dealing with minor non-compliance issues.330 However, it was argued by the Government that there is no reason to suspect that the proposed SAT will not be as capable as the current vocational boards at identifying systemic problems in industries and professions.

327 Letter from Mr Gavan Forster, Director Housing & Economics, Master Builders Association of Western Australia, May 26 2004, p1. 328 Submission No 19 from Housing Industry Association Limited; Master Builders Association; Royal Australian Institute of Architects; Construction Contractors’ Association of WA; and Consumers’ Association of WA, November 10 2003, p8. 329 Ibid, p7. 330 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 15 2004, p6.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 219 Legislation Committee TWENTY-FOURTH REPORT 11.20 The Committee was advised that the SAT would be subject to more rigid reporting requirements than many existing vocational boards, and in this way the public would be notified of any systemic problems in industries and professions in the SAT’s reports to Parliament.331 As to the further investigation of matters that come to light during a SAT hearing, the Government advised that:

“If a more serious breach is uncovered during a hearing in SAT, then it is more likely than it is now, that it will be referred to the relevant board for investigation. It will be a matter for the public record and the vocational body will be able to pick it up and investigate it and then if appropriate bring it before SAT. This process of investigation followed by fair inquiry on notice, is the process that should currently be followed.

The relevant occupational body, on discovering a matter of the nature identified in your question, would be able to send a directive to industry generally about it and advising that the practices are either illegal or otherwise not permitted under the relevant Act. This can happen now and will happen under SAT, although it may be that the benefit of the decision in SAT will be able to be disseminated to other relevant industries and not just the industry the subject of the inquiry before SAT.

…

I can see no sensible reason why SAT will not impose reprimands on licence holders who come before it. In fact, it is possible that a much more systematic and appropriate scale of penalty will apply across vocations in SAT. However, the reprimand is a very appropriate remedy for a vocational body to retain (though not exclusively of SAT) as part of its summary jurisdiction.”332

11.21 The Housing Industry Association Limited submitted that the current BRB model was more appropriate than the proposed SAT model, as the BRB involves an inquisitorial process specifically tailored to deal with disciplinary and compliance issues unique to the building industry.333 The Housing Industry Association Limited does, however, see a possible role for the SAT alongside the existing BRB:

“We would support the appeal of matters arising out of the exercise of the BRB’s jurisdiction to the SAT. Currently appeals are to the

331 Ibid. 332 Ibid, p7. 333 Letter from Mr John Dastlik, Executive Director, WA/Asia Region, Housing Industry Association Limited, May 26 2004, p1.

220 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT District Court. The District Court is generally considered to be too expensive, strict and formal for the determination of BRB disciplinary and compliance matters on appeal.

[The Housing Industry Association Limited] believes that the SAT may be in a much better position to hear matters more quickly than the District Court and this is more conducive for licence holders who may be appealing matters of licence suspension or cancellation.

[The Housing Industry Association Limited] would also agree to the reassignment of the BRB’s powers with respect to adjudication on the revocation or suspension of a builder’s registration to the SAT. This would entitle the SAT to determine registration issues at first instance rather than the BRB. This would effectively remove any claims of ‘judge and jury’ and would enable the BRB to concentrate on education and compliance. The BRB could also take on the role of investigator and prosecutor before the SAT.”334

Dentists

11.22 The types of complaints presently dealt with by the Dental Board of Western Australia include those arising from alleged poor or excessive treatment, over-charging, or advertising complaints brought by other practitioners.335

11.23 The Dental Board of Western Australia expressed a preference to the Committee that the current disciplinary system for dentists under the Dental Act 1939 be retained.336

11.24 The Australian Dental Association (WA Branch) Inc expressed its opposition to the disciplinary powers of the Dental Board of Western Australia being transferred to the proposed SAT:

“It is our belief that taking from the dental board its disciplinary functions will endanger the safety of the public and will not necessarily give justice to dentists or dental patients.

The current Dental Board has accumulated many years of experience in disciplining registrants and is uniquely placed due to the technical

334 Ibid, pp1-2. 335 Mr Wayne Clark, Registrar, Dental Board of Western Australia, Transcript of Evidence, March 23 2004, p3. 336 Letter from Dr J R Owen, President, The Dental Board of Western Australia, May 31 2004, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 221 Legislation Committee TWENTY-FOURTH REPORT expertise it possesses to ensure that complaints are handled quickly and fairly.”337

11.25 It was also submitted that:

“Taking away the disciplinary powers of the Dental Board will render this body incapable of maintaining the high standards that the profession currently maintains. It would make this a body without teeth (if you will pardon the pun) and would be seen by the profession as irrelevant.”338

11.26 Mr Wayne Clark, Registrar of the Dental Board of Western Australia, noted that some professional boards under the proposed SAT model were to retain an ability to deal with certain minor disciplinary matters. Mr Clark felt that such a power should be also be given to the Dental Board:

“The [Dental] board has compared the proposal with the existing provisions within the Podiatrists Registration Act - and when I say the board has done that, I have done that, because I am the registrar of both of those boards. As I understand the proposal, there is a procedure within the Podiatrists Registration Act for an informal inquiry. The loose definition of that is that if there is not the potential for the practitioner to be suspended, then the Podiatrists Registration Board can offer an informal inquiry, which has lower level penalties. The Dental Board is of the view that it should have similar powers so that the lower level issues can be handled by the board, for a number of reasons that are expressed in the letter, the most significant of which is that the board has some concern that, if all those matters will have to go before the State Administrative Tribunal, it will be a more legalistic process, solicitors will be involved on both sides, and the system could struggle.”339

11.27 The Australian Dental Association (WA Branch) Inc suggested that the Dental Board could retain its current role and that the proposed SAT could instead replace the Supreme Court of Western Australia as a review body to hear appeals from decisions of the Dental Board.340

337 Submission No 17 from Australian Dental Association (WA Branch) Inc, November 10 2003, cover page, p1. 338 Ibid. 339 Mr Wayne Clark, Registrar, Dental Board of Western Australia, Transcript of Evidence, March 23 2004, p4. 340 Submission No 17 from Australian Dental Association (WA Branch) Inc, November 10 2003, 2.

222 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT 11.28 The Committee is of the view that the Dental Board of Western Australia should retain a summary jurisdiction over minor disciplinary matters involving dentists.

Clause 234

Page 99 line 8 — To delete the line.

Clause 237

Page 104 line 26 — To delete “Role of State Administrative Tribunal” and insert

instead —

“ Proceedings ”

Clause 238

Page 105 lines 3 to 8 — To delete the lines and insert instead —

“

(a) by deleting all of the subsection before paragraph (a) and inserting instead —

“

(1) There is proper cause for disciplinary action in respect of a registered person if —

”;

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 223 Legislation Committee TWENTY-FOURTH REPORT

(b) in paragraph (b) —

(i) by deleting “named”; and

(ii) by deleting “, in the opinion of the Board,”;

(i) by deleting “other”;

(ii) by deleting “Board” before “by this Act” and inserting instead —

“ State Administrative Tribunal ”; and

(iii) by deleting “in the opinion of the Board”.

”.

Page 105 after line 8 — To insert —

“

(2) After section 30(1) the following subsections are inserted —

“

”.

224 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT

Page 105 after line 12 — To insert —

“

(b) by deleting “(1)” and inserting instead—

“ (1ab) ”;

Page 105 after line 26 — To insert —

“

(5) After section 30(2) the following subsections are inserted —

“

(2a) Instead of making an allegation to the Tribunal under subsection (1aa) or referring an allegation to the Tribunal under subsection (2), if the Board —

(a) is of the opinion that a proceeding before the Tribunal is not warranted by the nature of the allegations;

(b) has afforded to the person concerned the opportunity of giving an explanation to the Board either in person or in writing and is not satisfied by any explanation offered; and

(c) has afforded to the person concerned the option of the matter proceeding before the Tribunal and that option has not been taken up,

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 225 Legislation Committee TWENTY-FOURTH REPORT

”.

Page 106 line 8 — To insert before “Board” —

“ the ”.

Page 106 line 10 — To delete “Tribunal specifies” and insert instead —

“ is specified ”.

Page 106 line 11 — To insert before “Board” —

“ the ”.

Page 106 line 13 — To delete “Tribunal specifies” and insert instead —

“ may be specified ”.

Page 106 line 14 — To insert before “Board” —

“ the ”.

Page 106 line 14 — To insert after “Board” —

“ thinks fit ”.

Page 106 line 16 — To delete “Tribunal” and insert instead —

“ is specified in the order ”.

226 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT

Clause 242

Page 108 after line 10 — To insert the following proposed paragraph —

“

”.

Doctors

11.29 Under the Conferral Bill the Medical Board of Western Australia will retain a summary jurisdiction over certain disciplinary matters within the medical profession.

11.30 The Medical Board of Western Australia will be given enhanced investigatory powers under the Conferral Bill, and a “professional standards committee” is to be established to exercise the summary disciplinary jurisdiction of the Medical Board. The Committee was advised that the Medical Board of Western Australia’s retention of a summary disciplinary jurisdiction was possible because there had been a recent comprehensive review of the medical profession (Review of the Medical Act 1894, Final Recommendations for the Minister for Health; Medical Act Review Working Party, June 2001) which had recommended a model for summary jurisdiction that had been agreed and approved by both the Government and relevant stakeholders.341 The Committee was further advised that:

“The proposed amendments to the Medical Act [in the Conferral Bill] do not include the entire proposal from the Review Report; rather they set up the initial structure for separation of the summary matters, but without the entire proposed structure as implementation of that was dependant on substantial amendments to the Medical Act which were outside of the scope of the Conferral Bill.

… No other industry, occupation or profession had developed an appropriate and acceptable model and therefore a summary jurisdiction, at this stage, is included in the Conferral Bill for the medical profession only. The Government is, however, supportive of

341 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, June 17 2004, “Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submissions made to the Committee on the SAT Bills”, p10.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 227 Legislation Committee TWENTY-FOURTH REPORT other boards developing a summary jurisdiction model that is acceptable to all relevant stakeholders.”342

Electricians

11.31 Ms Valdene Buckley, a member of the Consumers’ Association of WA Inc, and a member of both the Building Disputes Tribunal and the Electrical Licensing Board, made the following comments in her capacity as the residential consumer member of the Electrical Licensing Board:

“If the functions to suspend or cancel licences are transferred to SAT then some [Electrical Licensing] Board members believe their ability to contribute in a meaningful way to the regulation of their industry will be diminished, to the point that their contribution will be ineffective. They consider they will no longer be able to ‘make a difference’ by utilising the knowledge and experience they have gained over many years to ensure appropriate safety standards in the electrical industry are maintained. Currently they believe they make a valuable contribution to the electrical industry by ensuring that incompetent and negligent operatives are removed in a timely manner.”343

11.32 Ms Buckley went on to advise the Committee of the following unanimous response of all members of the Electrical Licensing Board, as recorded in the minutes of a meeting of the Board on May 18 2004:

“The Board reaffirmed its stance that SAT should only hear appeals from licence applicants and from operatives who have been disciplined. All disciplinary responsibilities to cancel or suspend operatives should remain a function of the Board.”344

Hairdressers

11.33 The Hairdressers Registration Board of Western Australia expressed concern at the proposed removal of its ability to suspend or cancel the registration of a hairdresser or to annul such cancellation. It submitted that:

“The proposed amendments in their current form would seriously impact on the Board’s ability to administer the Act in relation to examining and assessing applicants, granting registration and

342 Ibid. 343 Letter from Ms Valdene Buckley, Consumers’ Association of Western Australia (Inc), undated (received May 27 2004), p1. 344 Ibid, p2.

228 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT maintaining an accurate register of hairdressers. It is the Board’s view that the SAT should only become involved in this process in the event that a person’s registration was to be suspended or cancelled for disciplinary reasons.”345

11.34 The Hairdressers Registration Board of Western Australia pointed out that suspension and cancellation of a hairdresser’s registration does not only arise from disciplinary action, and is in fact mostly undertaken for administrative reasons. For instance, suspension of registration may occur at the request of a hairdresser who intends to leave the industry for a period of time, and may also occur as a result of the non- payment of the annual registration fee.346 Similarly, cancellation of registration usually occurs at the request of a hairdresser upon their retirement or in the event of a career change.347

11.35 The Hairdressers Registration Board of Western Australia was also concerned that the Conferral Bill, which proposes to amend s 17 of the Hairdressers Registration Act 1946, would restrict the ability of the Board to conduct investigations into hairdressers and would make it impossible for the Board to establish the status of a hairdresser’s qualifications and the currency of their registration.348

Lawyers

11.36 The Legal Practice Act 2003 provides for the regulation of the legal profession in Western Australia through a series of separate bodies with distinct functions:

• A registration body, namely the Legal Practice Board of Western Australia.349

• A conduct regulator and first instance disciplinary body, the Legal Practitioners Complaints Committee.350

• A Legal Practitioners Disciplinary Tribunal which hears the more serious disciplinary matters as referred to it by the Legal Practitioners Complaints Committee.351

• The Supreme Court as the ultimate regulator of the legal profession.

345 Submission No 48 from Hairdressers Registration Board of Western Australia, June 15 2004, p1. 346 Ibid. 347 Ibid, p2. 348 Ibid. 349 Section 6, Legal Practice Act 2003. 350 Ibid, s 162. 351 Ibid, s 168.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 229 Legislation Committee TWENTY-FOURTH REPORT 11.37 Part 2, Division 73, of the Conferral Bill proposes the abolition of the Legal Practitioners Disciplinary Tribunal and the conferral on the proposed SAT of the jurisdiction of hearing and determining the more serious disciplinary matters involving the legal profession. The proposed SAT is also to have a review jurisdiction over certain decisions of the Legal Practice Board and Legal Practitioners Complaints Committee. Certain decisions of, and appeals to, the Supreme Court are also proposed to be transferred to the SAT.

11.38 The Committee notes that the legal profession is one of the vocational groups that it is proposed will maintain a summary jurisdiction and strong investigatory role in the area of occupational discipline. Disciplinary matters involving lawyers are to be dealt with at first instance by the Legal Practitioners Complaints Committee, which will broadly continue in its present role.352

11.39 The Law Society of Western Australia stated in its submission that it “…generally welcomes and supports the introduction of the proposed [SAT].”353

11.40 The Legal Practice Board of Western Australia, however, has expressed the view that its preference is to maintain the legal profession’s current tribunal system.354

11.41 The Western Australian Bar Association (Inc) expressed support for the incorporation of the legal profession’s current tribunal system within the proposed SAT, although it was of the view that the special features of the legal profession’s professional standards and disciplinary regime required a dedicated panel within the SAT with a dedicated Chairman at Presidential (judicial) level.355 The Committee notes that the ADT’s Legal Services Division may serve as a model for such a “dedicated panel” in the area of legal professional discipline. The Committee also notes that it gained the impression from its meetings with user groups of the ADT that proceedings in the ADT’s Legal Services Division were far more formal and legalistic than in any of the other divisions of the ADT, with senior counsel regularly appearing for parties and legal points being taken at every opportunity. The VCAT will not be assuming jurisdiction over legal professional discipline until 2005.

11.42 The Chief Justice of Western Australia (Chief Justice) expressed concern at the proposed incorporation of legal profession disciplinary functions in the proposed SAT. His Honour noted that the current arrangements reflect the unique situation of lawyers amongst other professions and vocational groups in that legal practitioners are

352 Letter from Mr Ian Weldon, President, The Law Society of Western Australia, May 24 2004, p1. 353 Submission No 36 from The Law Society of Western Australia, November 11 2003, p1. 354 Letter from Mr Steven Penglis, Chairman, The Legal Practice Board of Western Australia, May 27 2004, p1. 355 Letter from Mr R I Viner AO QC, President, Western Australian Bar Association (Inc), June 25 2004, p1.

230 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT also officers of the Supreme Court and are thereby subject to the disciplinary jurisdiction of that Court.356 His Honour stated that:

“I am opposed to any diminution of the authority of the Supreme Court in relation to the disciplinary jurisdiction currently exercised by the Court."357

11.43 The Legal Practice Board also considered it inappropriate in the Conferral Bill to transfer, from a Judge of the Supreme Court to the SAT, certain supervisory powers over the legal profession, including, amongst other things, the power to make orders restraining dealings with legal practitioners’ bank accounts, to take possession of monies constituting the balance of a trust account, and to appoint a certified practitioner to be a supervising solicitor of a legal practice.358

11.44 The Law Society of Western Australia was also initially concerned that the Supreme Court’s traditional final authoritative role in the supervision of the legal profession may have been diminished by the SAT,359 but has since been satisfied that this concern has been addressed and that the Supreme Court’s ultimate jurisdiction over the removal of a legal practitioner from the roll has been preserved in s 194 of the Legal Practice Act 2003.360

11.45 The Committee notes that s 161 of the Legal Practice Act 2003 provides that nothing in Part 12 of that Act (concerning complaints and discipline) affects the inherent jurisdiction of the Supreme Court of Western Australia with respect to legal practitioners. The Committee understands that a similar provision (s 171M, Legal Profession Act 1987 (NSW)) is used in New South Wales to commence proceedings in the Supreme Court of New South Wales, rather than the ADT, against legal practitioners for serious misconduct in circumstances where there is little dispute as to the facts in the case.

11.46 The Government advised the Committee that:

“[A] clear express statement would need to be included in the SAT Bill or the Conferral Bill for their provisions to have the effect of displacing the Supreme Court’s inherent supervisory jurisdiction over the legal profession;

356 Submission No 42 from The Honourable Chief Justice David K Malcolm AC CitWA, November 14 2003, p3. 357 Ibid. 358 Letter from Mr Steven Penglis, Chairman, The Legal Practice Board, May 27 2004, Attachment 3, p3. 359 Submission No 36 from Ms Elizabeth Heenan, President, The Law Society of Western Australia, November 11 2003, p10. 360 Letter from Mr Ian Weldon, President, The Law Society of Western Australia, May 24 2004, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 231 Legislation Committee TWENTY-FOURTH REPORT it is therefore my understanding that the inherent jurisdiction of the Supreme Court would continue and would sit parallel with the express jurisdiction given to SAT under the Legal Practice Act 2003 in the Conferral Bill; and

it was the intention that the inherent jurisdiction of the Supreme Court be preserved, but that it not necessarily be an exclusive jurisdiction in the more routine matters relating to the supervision of the legal profession.”361

Nurses

11.47 The Nurses Board of Western Australia was generally supportive of the proposed SAT model, particularly in the separation of powers in disciplinary matters between the Board as prosecutor and the SAT as judge.362 However, among the concerns expressed by the Nurses Board was a desire to strengthen the investigative powers of the Board.363

11.48 The Nurses Board was also concerned by the general position under cl 61(1) of the SAT Bill that all hearings are to be held in public unless otherwise provided under the SAT Bill or by order of the SAT (see paragraph 11.2). It was submitted that in disciplinary matters before the SAT there was the possibility that damaging, unproven, allegations may be made in the course of a hearing that could unjustly damage the reputation of a nurse if made in public.364 As such, the Nurses Board was of the view that all disciplinary proceedings should be conducted in private, unless otherwise ordered by the SAT.365

Occupational Therapists

11.49 The Australian Association of Occupational Therapists (WA) Inc was concerned that the proposed SAT, in times of a heavy workload, may prioritize its cases and that the smaller professional groups, such as occupational therapists, would suffer.366

11.50 The Australian Association of Occupational Therapists (WA) Inc was also concerned at the duplication of resources and the impact on timeliness of decisions:

361 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, June 17 2004, attached Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submissions made to the Committee on the SAT Bills, pp13-14. 362 Submission No 14 from Nurses Board of Western Australia, November 14 2003, p1. 363 Ibid, p3. 364 Letter from Ms Margaret J O Watson, Chief Executive Officer, Nurses Board of Western Australia, May 26 2004, pp1-2. 365 Ibid, p2. 366 Submission No 13 from Australian Association of Occupational Therapists (WA) Inc, November 11 2003, p2.

232 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT “At present investigations are managed in a single process by the Registration Board. The concern is that with the division of the process between the Board and the SAT the continuity and timeliness may be jeopardized. The implementation of two systems for investigation and inquiry also increases the possibility of duplication and review of information.

Matters brought to the Occupational Therapy Board concern the professional reputation and practice of individual therapists. A drawn out process of investigation and inquiry involving two stages could damage a professional’s ability to maintain their practice.”367

11.51 The Australian Association of Occupational Therapists was of the view that the current situation should remain in place until a new Occupational Therapists Registration Act is enacted which addresses wider concerns of the profession.368

Painters

11.52 The Painters’ Registration Board (PRB) registers painters and takes disciplinary actions against painters for unworkmanlike or improper painting work. The PRB is comprised of a legal practitioner Chairman and four members who represent the interest of consumers and industry.369

11.53 Under Division 95 of the Conferral Bill, the proposed SAT will take over the current adjudicative and disciplinary functions of the PRB. The PRB has expressed opposition to the proposed loss of its disciplinary powers, and has submitted that the status quo should remain, but that perhaps the proposed SAT could replace the Local Court in hearing appeals from decisions of the PRB.370

Pharmacists

11.54 The types of complaints presently dealt with by the Pharmaceutical Council of Western Australia include those arising from dispensing or labelling errors.371 The current usual process for dealing with a complaint against a pharmacist is set out as follows:

“Council staff respond immediately to complaints. The pharmacist against whom a complaint is made is contacted and invited to respond

367 Ibid, p2. 368 Letter from Mr Kerry Jones, President, OT Australia WA, June 4 2004, p1. 369 Submission No 20 from Painters’ Registration Board, November 10 2003, p1. 370 Ibid, p2. 371 Mr Robert Brennan, Registrar, Pharmaceutical Council of Western Australia, Transcript of Evidence, March 17 2004, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 233 Legislation Committee TWENTY-FOURTH REPORT to the complaint. Both sets of information are presented to a complaints assessment committee which meets at least once per month. A recommendation by that committee that a pharmacist be disciplined results in the issue of a summons which is returnable, in most cases, before the Council at its next meeting. The process from receipt of complaint to appearance before the Council, therefore, takes on average six to eight weeks.

In these cases it is most unusual for either party to be legally represented and the costs of the process, payable by the pharmacist where an adverse finding is made, are minimal.”372

11.55 The Pharmaceutical Council of Western Australia stated to the Committee that its preference was to retain its profession’s current tribunal system over the proposed SAT model. Nevertheless, the Pharmaceutical Council added that it was firmly of the view that the public would be best served by a model where the SAT had jurisdiction over the conduct of more serious disciplinary matters only, with the Pharmaceutical Council retaining jurisdiction over routine or less serious matters.373

11.56 The Pharmaceutical Council of Western Australia expressed concern that the adversarial, legalistic, nature of the proposed SAT may lead to a greater number of defended hearings in professional disciplinary matters than at present:

“[T]hese [SAT] proceedings will undoubtedly be seen by the professionals involved as adversarial. I contrast that with the way it is done at the moment; that is, it is not the scene that is set under the current arrangement. At the moment, professionals appear before their peers and answer to their peers. It is fair to say that, except in defended cases, it is not an adversarial scene at all. That sense of adversary would be the major perception of any professional who might come before the new body. A strong tendency would exist on people’s part to defend themselves in every case before SAT. That is not the way it works at the moment. In undefended cases, they accept most accusations that are made.”374

11.57 Clause 977 of the Conferral Bill repeals ss 17 and 18 of the Pharmacy Act 1964. Section 17 is a provision which, the Committee was advised, provides valuable

372 Letter from Mr Robert Brennan, Registrar, Pharmaceutical Council of Western Australia, March 29 2004, p1. 373 Letter from Mr Robert Brennan, Registrar, Pharmaceutical Council of Western Australia, May 25 2004, p1. 374 Mr Robert Brennan, Registrar, Pharmaceutical Council of Western Australia, Transcript of Evidence, March 17 2004, pp1-2.

234 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT powers to the Pharmaceutical Council of Western Australia for use in a wide range of matters beyond disciplinary hearings.375

11.58 Section 17 of the Pharmacy Act 1964 states:

“17. Council may summon person to give evidence, etc.

(1) For the purposes of this Act, the Council may by writing under the hand of the president or deputy president summon any person to attend the Council at a time and place named in the summons and to give evidence and produce any books, documents or writings in his custody or control that by such summons he is required to produce.

(2) The Council may, in its discretion, on the application of any party to any proceedings before the Council, by writing under the hand of the president or deputy president, summon any person to appear as a witness before the Council.

(3) Any member of the Council may administer an oath to, or take a solemn declaration from, any person appearing as a witness before the Council, and may examine or question such person upon oath.”

11.59 Section 18 of the Pharmacy Act 1964 provides various penalties for a failure to comply with a summons or to give evidence, and is thus complementary to the power contained in s 17.

11.60 The Pharmaceutical Council of Western Australia noted the value of s 17 of the Pharmacy Act 1964 during a hearing before the Committee in the following terms:

“Mr Brennan: It seems to me that the powers of the investigator, while they are extensive, are aimed at producing a report that says whether a matter should go to SAT. The council’s functions for the last 112 years have been much wider than that, and I talked about the codeine matter earlier on. A section 17 summons is a very practical way of establishing whether a professional standard should be established or whether a professional standard is not being met at the moment. That sort of thing is a good example of when an activity is not illegal but the profession should expect itself to perform to a standard. An investigator will not be able to elicit any information from practitioners as to what they are selling or supplying to the public in those sorts of circumstances.

375 Ibid, p6.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 235 Legislation Committee TWENTY-FOURTH REPORT Nevertheless, it is a huge public safety issue. We see nothing in the proposed legislation that might be the equivalent of that or will produce the outcome that the current section 17 does so that the council can investigate a behaviour, find out how widespread it is, place expectations on the profession and bring the matter to its attention.

…

Hon PETER FOSS: If we were to leave it in, you would still be able to use that provision for your own purposes as well as SAT having its powers. These powers are used more widely than for just disciplinary matters.

Mr Brennan: They are very much so. I have recounted one area where that is the case and there are other areas where it may well be used such as with the registration of premises or the conduct of pharmacy businesses where restrictions are placed on who can and cannot have pecuniary interest and so forth. There are more uses for section 17 than in just disciplinary proceedings, and they are quite important areas.”376

11.61 The Committee received advice from the Government that the proposed repeal (by cl 977 of the Conferral Bill) of ss 17 and 18 of the Pharmacy Act 1964 goes hand in hand with the proposed insertion (by cl 982 of the Conferral Bill) of sections 31A to 31F into the Pharmacy Act 1964 to establish new investigative powers.377 The Committee was advised that the proposed new provisions would give more extensive investigative powers than currently exist and would avoid the quasi-judicial concepts involved in the Pharmaceutical Council summoning witnesses to appear before it and taking evidence on oath. The Government further advised the Committee of a proposed amendment to the Conferral Bill to include a provision in the Pharmacy Act 1964 to enable the enforcement of compliance with things done under the new investigative provisions.

11.62 In view of the Government’s advice, the Committee is inclined to agree with the proposed amendments to the Pharmacy Act 1964 contained in the Conferral Bill.

11.63 The Committee is of the view, however, that the Pharmaceutical Council of Western Australia should retain a summary jurisdiction over minor disciplinary matters involving pharmacists.

376 Ibid, p6. 377 Email from Parliamentary Counsel’s Office, September 24 2004, p1.

236 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT

Clause 983

Page 456 after line 15 — To insert —

“

(4) Instead of making an allegation to the Tribunal under subsection (2), if the Council —

(a) is of the opinion that a proceeding before the Tribunal is not warranted by the nature of the matter involved;

(b) has afforded to the person concerned the opportunity of giving an explanation to the Council either in person or in writing and is not satisfied by any explanation offered; and

(c) has afforded to the person concerned the option of the matter proceeding before the Tribunal and that option has not been taken up,

the Council may deal with the matter as described in subsection (3)(a)(iii) or (iv), (3)(b), or (3)(c) except that it cannot impose a fine of more than $2 500.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 237 Legislation Committee TWENTY-FOURTH REPORT

Clause 984

Page 456 line 23 — To insert after “by” —

“

a penalty imposed under section 32(4), an order made under section 32(5) for the payment of costs or expenses, or

”.

Clause 986

Page 457, line 12 — To delete the line.

Security Agents

11.64 The Security Agents Institute of Western Australia (Inc) advised the Committee that it was supportive, in principle, of the proposed SAT.378 It also noted, however, that it had some concerns regarding the possible weakening of the regulatory role of the Western Australian Police Service licensing officer over their industry.

11.65 The Committee was advised that plans are currently underway to establish stricter licensing arrangements, including the mandatory revocation of licences by the Western Australian Police Service licensing officer following a conviction for a criminal offence.379 The Committee understands that it is planned that such a licence revocation would not be able to be appealed. There is therefore some concern on the part of the Security Agents Institute of Western Australia (Inc) that the implementation of the proposed SAT will result in such revocations being appealed to the SAT and/or the Supreme Court.380

378 Submission No 24 from Security Agents Institute of Western Australia (Inc), November 7 2003, p1. 379 Ibid. 380 Ibid.

238 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 11: Regulation of Occupational Groups by the Proposed SAT Veterinary Surgeons

11.66 The Veterinary Surgeons’ Board of Western Australia submitted that its current system was efficient, transparent and cost effective.381 The Board stated that:

“The Board considers that the additional costs and complexity resulting from a shift to the SAT Model would make the process of the investigation of complaints and the hearing of an Enquiry less accessible to the community.”382

11.67 The Australian Veterinary Association Ltd (Western Australian Division) also advised the Committee that its preferred option was for its profession’s current board system to be retained.383

11.68 The Veterinary Surgeons’ Board of Western Australia expressed concern that cl 1363 of the Conferral Bill, which amends s 23 of the Veterinary Surgeons Act 1960, will significantly increase costs to the public by removing the Board’s ability to deal with minor complaints:

“[T]he Bills as drafted would remove the ability of the Veterinary Surgeons Board to hold an enquiry in relation to unprofessional conduct for even the smallest of matters.

Having all matters heard by the SAT rather than enabling some matters to be dealt with by the Veterinary Surgeons Board would significantly increase both the time and the public and private costs of dealing with complaints against veterinary surgeons.”384

11.69 The Veterinary Surgeons’ Board of Western Australia drew the Committee’s attention to the Health Professions Bill 2003 (ACT), a bill which establishes a ‘Health Professions Tribunal’ to hear all reports that may lead to the suspension or de- registration of a health professional. It was submitted that this ACT legislation provides a better model for the SAT’s disciplinary jurisdiction over veterinary surgeons, as it would leave the Veterinary Surgeons’ Board with its own disciplinary powers with respect to minor complaints.385

381 Letter from Dr Peter Punch, Chairman, Veterinary Surgeons’ Board of Western Australia, May 27 2004, p2. 382 Ibid. 383 Letter from Dr David Marshall, President, The Australian Veterinary Association Ltd (Western Australian Division), May 25 2004, p1. 384 Submission No 25 from Veterinary Surgeons’ Board of WA, November 10 2003, p2. 385 Letter from Dr Andy Keefe, Registrar, Veterinary Surgeons’ Board of WA, December 12 2003, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 239 Legislation Committee TWENTY-FOURTH REPORT 11.70 Both the Veterinary Surgeons’ Board of Western Australia and the Australian Veterinary Association Ltd (Western Australian Division) sought the retention of s 23 of the Veterinary Surgeons Act 1960 for minor disciplinary complaints but did, however, acknowledge a possible valuable role for the SAT alongside the existing Veterinary Surgeons’ Board. It was submitted that appeals from the decisions of the Veterinary Surgeons’ Board should be dealt with by the proposed SAT rather than the District Court, and that the Veterinary Surgeons’ Board could be provided with a power to transfer, at its discretion, potentially complex and difficult cases to the SAT.386

THE COMMITTEE’S OBSERVATIONS

11.71 The Committee notes that a number of the current vocational disciplinary bodies referred to above expressed a desire to retain a summary jurisdiction over minor disciplinary matters.

11.72 The Committee is of the view that the Government should review all of the vocational bodies whose disciplinary functions are to be transferred to the proposed SAT, with the view of developing a summary jurisdiction within those bodies for minor disciplinary matters and with only the more serious breaches of discipline being referred on to the SAT.

386 Letter from Dr David Marshall, President, The Australian Veterinary Association Ltd (Western Australian Division), May 25 2004, p1; and Submission No 25 from Veterinary Surgeons’ Board of WA, November 10 2003, p2.

240 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 12 THE FINANCIAL IMPLICATIONS OF THE PROPOSED SAT

12.1 It was made quite clear to the Committee by Government witnesses that the proposed establishment of the SAT was not a purported cost-saving exercise based on achieving savings through consolidation.387 It also became apparent to the Committee during its consultation with relevant tribunals and user groups in Victoria and New South Wales that, for the establishment of an effective amalgamated State administrative tribunal, cost saving cannot be a driving factor. The Committee’s investigations would therefore suggest that there will be an increase in administrative costs associated with the SAT. Justification for the SAT must therefore be found elsewhere.

12.2 The Committee acknowledges that, after a number of years of operation and with efficient administrative support, certain economies of scale may occur and a longer term reduction in total costs may be experienced. However, it must be appreciated that the proposed SAT will bring with it a large centralised bureaucracy with all of the costs that such a large government agency entails.

THE COST OF THE PROPOSED SAT

Estimated Cost of the SAT

12.3 For its proposed first full year of operation (2004-05) the State Government has approved total recurrent expenditure for the proposed SAT of $10.6m.388

Costs Incurred to Date on the Administrative Arrangements for the Proposed SAT

12.4 The Committee noted that, prior to the Committee receiving the bills, a number of existing boards and tribunals had already been co-located in premises leased and fitted out for the proposed SAT and that hearings of these boards and tribunals had already commenced in these premises. The Committee sought information as to the extent of progress on the administrative arrangements for the proposed SAT and on the cost of these administrative arrangements.

12.5 The following boards and tribunals were relocated to 12 St George’s Terrace, the proposed premises for the SAT, during 2003:

• GAB.

387 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p20. 388 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 241 Legislation Committee TWENTY-FOURTH REPORT • Commercial Tribunal.

• Retirement Villages Disputes Tribunal.

• Strata Titles Referee.

• Commercial Registrar.

• Equal Opportunity Tribunal.

• Town Planning Appeal Tribunal.

• Land Valuation Tribunal.

12.6 The Committee was advised that those boards and tribunals whose functions, in whole or in part, are intended to be transferred to the proposed SAT have been offered the use of the hearing rooms at 12 St George’s Terrace free of charge until both the SAT Bill and the Conferral Bill have been enacted.389

12.7 The Committee was advised that a small project team is overseeing the development of necessary administrative and system support functions at 12 St George’s Terrace. As at the end of January 2004, costs of approximately $3.42m had been incurred; composed of the following:390

• Project costs (salary and other ongoing costs) $0.61m.

• Building fit out $1.97m.

• IT developments $0.47m.

• Building rental and outgoings $0.37m.

The Cost of the Existing Board/Tribunal System

12.8 Where State Government agencies currently fund boards or tribunals whose functions are to be transferred to the SAT, then it is proposed that equivalent funding will continue to be appropriated from that agency to the Department of Justice for the operations of the SAT.391 Where the level of existing agency funding is not easily identifiable, such as where a Minister or public official reviews a decision of the agency, then no appropriation for the SAT from that agency will be required.392

389 Ibid, p6. 390 Ibid. 391 Ibid, pp5-6. 392 Ibid, p6.

242 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 12: The Financial Implications of the Proposed SAT 12.9 The Committee was advised that in the financial year 2002-03, it was estimated that the cost of operating those boards and tribunals whose functions, either in full or in part, will be transferred to the proposed SAT was $6.7m.393 Of this amount, approximately $5.7m will be directly transferred to the SAT from those boards and tribunals fully absorbed by the SAT and, where relevant specific budget appropriations can be identified, from those boards and tribunals whose functions are partially absorbed by SAT.394 With respect to the remaining $1m, this will not be transferred to the SAT because:395

• the board/tribunal to be absorbed is wholly self-funded and, as such, is not required to pay a contribution to the SAT; or

• specific costs for the functions to be transferred to SAT cannot be reliably extracted from other costs of a board that will continue in operation.

12.10 Accordingly, no funding will be transferred to the SAT in connection with the following wholly or partially self-funded boards and tribunals:396

• Architects Registration Board

• Builders Registration Board

• Chiropractors Registration Board

• Dental Board of Western Australia

• Hairdressers Registration Board

• Land Surveyors Licensing Board

• Medical Board

• Nurses Board of Western Australia

• Occupational Therapists Board

• Optometrists Registration Board

• Osteopaths Registration Board

393 Ibid, p4. 394 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, May 27 2004, p1. 395 Ibid. 396 Ibid, p6.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 243 Legislation Committee TWENTY-FOURTH REPORT • Painters Registration Board

• Pharmaceutical Council

• Physiotherapists Board

• Plumbers Registration Board

• Podiatrists Registration Board

• Psychologists Board

• Real Estate and Business Agents Supervisory Board

• Settlement Agents Supervisory Board

• Veterinary Surgeons Board

12.11 Similarly, due to the difficulty in identifying specific government funding for the following functions and bodies, no funds will be transferred to the SAT in connection with the transfer of those functions and bodies (in whole or in part):397

• Legal Practitioners Disciplinary Tribunal

• Legal Practice Board

• Biological Control Appeal Board (wholly absorbed by SAT)

• Marine Appeals Authority (wholly absorbed by SAT)

• Regulation of Debt Collectors

• Regulation of Dental Prosthetists

• Regulation of Gas Fitters

• Regulation of Optical Dispensers

• Regulation of persons who work in the human reproductive technology area

• Regulation of Pawnbrokers and Secondhand dealers

• Regulation of Security Agents

• Regulation of Travel Agents

244 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 12: The Financial Implications of the Proposed SAT Factors to be Considered in a Cost Comparison

12.12 The Committee was advised that the following factors need to be taken into account when comparing the greater costs of the SAT ($10.6m) to the combined costs of the existing boards and tribunals that it is replacing ($6.7m):398

• The SAT will also have jurisdiction over a substantial number and wide variety of decisions currently made by Ministers and other public officials outside of the present tribunal system.

• The SAT will assume the jurisdiction of the courts to review administrative decisions, thereby reducing running costs and delays in the courts.

• The SAT will be accommodated within a single dedicated building.

• The SAT will have full time judicial oversight and full time membership to a greater extent than most existing boards and tribunals, which should reduce the number of appeals and the costs associated with such appeals.

• The approximately 20 self funded vocational regulatory bodies whose disciplinary function will be transferred to SAT will not be required to transfer any funding to the SAT.

12.13 Ms Eckert stated that:

“I do not think SAT was ever promoted as a cost-saving exercise. SAT is a means of providing accessible review and justice for all citizens, and that is always going to cost money when that right is not adequately catered for now. I do not know - I have not been involved in the budget - but my view is that it will not necessarily be a cost- saving exercise. There might be efficiencies. I looked at something recently that said there would be 55 staff, which is the creation of 12 new positions, and people will transfer over, which means that there should not be a much greater cost than there is with running the current bodies. However, my understanding is that it has not ever been promoted as a cost saving.”399

397 Ibid, pp7-8. 398 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, pp4-5. 399 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p20.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 245 Legislation Committee TWENTY-FOURTH REPORT

IMPACTS ON INDUSTRY AND PROFESSIONS

12.14 The Committee was advised that there is not, and has not been, any proposal to seek a funding contribution for the proposed SAT from those vocational associations that currently fund their own disciplinary boards and tribunals.400

12.15 There may, however, be additional costs imposed on industry in dealing with new procedures to be introduced for certain jurisdictions:

“There might be a perception that costs could increase in some disciplinary jurisdictions for some vocational regulation bodies, where they currently do not hold a hearing in to an allegation or complaint about a person, but deal with it ‘informally’ without the industry member having the right to legal representation, proper notice and the right to be properly heard or to examine or cross examine witnesses. Where that currently occurs, that person is being denied natural justice and SAT will ensure a fair and appropriate procedure is adopted. It is particularly with respect to that sort of approach where SAT will be most beneficial and industry will need to bear any additional cost to ensure that their members’ rights are adequately protected.

Equally, consumers are entitled to expect that their complaints will be properly investigated, as independently of industry as possible; the need to present a proper case before SAT - where that is currently not occurring for complaints heard by vocational regulatory bodies - may therefore increase the costs for a board. However, both of these ‘costs’ are not effectively ‘increases’: they merely represent what should be currently occurring in these jurisdictions to ensure the proper dispensation of justice.”401

12.16 Attached at Appendix 9 is a schedule provided to the Committee by the State Government which sets out the anticipated financial impact of the proposed SAT on various industry and professional groups for each of the existing jurisdictions to be incorporated within the SAT (that is, whether the proposed SAT will be revenue neutral, revenue negative or revenue positive).402

12.17 The Committee notes that some professions, such as the legal profession, pay a significant amount of money each year to maintain their professional qualifications,

400 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p5. 401 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p9. 402 Ibid, pp11-17.

246 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 12: The Financial Implications of the Proposed SAT part of which goes to funding registration boards and disciplinary tribunals. There is no indication that these annual payments will either be transferred to the State Government or reduced by the relevant professional body upon the transfer of the jurisdiction of the various professional disciplinary tribunals to the SAT.403

ESTIMATED RUNNING COSTS OF THE PROPOSED SAT

12.18 The Committee understands that the proposed SAT will have three sources of revenue, as follows:404

• Annual appropriations from various Government departments of $5.729m.

• An annual appropriation from the Consolidated Revenue Fund of $4m.

• Fee revenue estimated at $280,000.

Appropriations from Certain Government Departments

12.19 The following table sets out the funding that is to be transferred to the proposed SAT along with those wholly funded boards and tribunals whose functions are to be totally absorbed by the proposed SAT:

Table 9.1 Funding from Government Departments to be transferred with those Boards and Tribunals to be Wholly Absorbed by the Proposed SAT405

Board/Tribunal Agency Amount

Firearms Appeal Tribunal Police $5,000

Fisheries Objections Tribunal Department of Fisheries $44,000

Land Valuation Tribunal Department for Planning and $367,000 Infrastructure

Town Planning Appeals Department for Planning and $1,770,000 Tribunal Infrastructure

Water Resources Appeal Department of the $50,000 Tribunal Environment

403 Mr Andrew Marshall, Project Director, State Administrative Tribunal Project, Department of Justice, Transcript of Evidence, April 5 2004, p14. 404 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, May 27 2004, pp2-3. 405 Ibid, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 247 Legislation Committee TWENTY-FOURTH REPORT

Board/Tribunal Agency Amount

Equal Opportunity Tribunal Department of Justice $100,000

Guardianship and Department of Justice $1,724,000 Administration Board

Strata Titles Department of Justice $258,000 Referee/Retirement Villages Disputes Tribunal

Commercial Tribunal Department of Justice $421,000

MHRB Department of Health $719,000

Racing Penalties Appeals Department of Racing and $133,000 Tribunal Gaming [NOTE: This appropriation will be extracted from the Totalisator Agency Board of Western Australia (TAB) (RWWA) funds based on the actual number of appeals heard in the previous year]

12.20 The following table sets out the government funding to be transferred to the proposed SAT for those boards and tribunals that will be partially absorbed by the proposed SAT and where the specific budget appropriation for those functions to be transferred can be clearly identified:

Table 9.2 Funding from Government Departments to be Transferred where Certain Functions only of Boards and Tribunals are to be Absorbed by the Proposed SAT406

Board/Tribunal Agency Amount

Electrical Licensing Board Department of Consumer and Employment $44,000 Protection

Finance Brokers Supervisory Department of Consumer and Employment $86,000 Board Protection

406 Ibid, p2.

248 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 12: The Financial Implications of the Proposed SAT

Board/Tribunal Agency Amount

Motor Vehicle Dealers Department of Consumer and Employment $5,000 Licensing Board Protection

Land Valuers Licensing Department of Consumer and Employment $3,000 Board Protection

The Breakdown of Running Costs between the Various Streams within the Proposed SAT

12.21 The Committee sought to make a comparison between the costs to the State Government of the current board and tribunal system in Western Australia and the proposed SAT by breaking down the component costs of each of the jurisdictions to be incorporated in the SAT and comparing the costs on a before and after basis. The Committee was advised, however, that:

“Direct comparisons between the running costs of an existing board/tribunal and the cost of carrying out the same functions of that board/tribunal under the SAT model are neither appropriate nor useful. The cost of running SAT is based on its entire jurisdiction and not merely the jurisdiction being transferred from particular boards/tribunals or individuals. SAT is a new body and is not merely reflective of the sum of all its component parts.

… Overhead costs of SAT cannot be attributed to particular board and tribunal functions following their transfer into SAT. They can only be attributed to streams. For example, functions such as listings/scheduling, record keeping and administration of SAT are provided across the whole spectrum of functions being transferred to SAT and represent an overhead component to the costs.”407

12.22 The Committee was advised that it is proposed to structure the SAT around the following four streams:408

• Human Rights and Equal Opportunity: incorporating guardianship, mental health and equal opportunity matters, as well as personal matters such as reviews of the Gender Reassignment Board. This stream is anticipated to comprise 48 per cent of the SAT’s workload and utilise 45 per cent of the SAT’s administrative resources.409

407 Ibid, p4. 408 Ibid. 409 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 15 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 249 Legislation Committee TWENTY-FOURTH REPORT • Resources and Development: incorporating town planning appeals and reviews of numerous decisions regarding fish resources, water resources, land resources and local government. This stream is anticipated to comprise 10 per cent of the SAT’s workload and utilise 21 per cent of the SAT’s administrative resources.410

• Civil and Commercial: incorporating decisions of a general civil or commercial nature such as those presently dealt with by the Commercial Tribunal and RPAT. This stream is anticipated to comprise 36 per cent of the SAT’s workload and utilise 27 per cent of the SAT’s administrative resources.411

• Vocational Regulation: incorporating the disciplinary functions of 35 boards and tribunals, and undertaking reviews of decisions made by those boards and tribunals regarding registration, licensing and compensation fund matters. This stream is anticipated to comprise six per cent of the SAT’s workload and utilise 6.5 per cent of its administrative resources.412

12.23 The Committee was advised that some of the factors to consider in the percentages in the above estimates of expenditure allocation within the SAT are that approximately 80 per cent of matters in the Civil and Commercial stream are likely to be dealt with by a single member based on written documentation only, and that hearings in the Vocational Regulation stream are required to be conducted by multi-member tribunals.413

12.24 Attached at Appendix 10 is a table supplied by the Government showing the estimated proportion of the total running costs for each of the four streams of the proposed SAT for the financial year 2004-05.414

FILING FEES

12.25 The Committee was advised that all filing fees will remain the same as those that currently apply. Where no filing fee currently applies, such as in the guardianship and mental health jurisdictions, then the lodging of such applications will continue to be free in the SAT.415

410 Ibid. 411 Ibid. 412 Ibid. 413 Ibid. 414 Ibid, Attachment 1. 415 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p5.

250 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 12: The Financial Implications of the Proposed SAT 12.26 The Committee is, however, concerned to ensure that a fee will not be imposed at some later date, by way of rules, for the commencement of a proceeding in either the guardianship or mental health jurisdictions.

Page 145, after clause 308 — To insert the following new clause —

“

309. Section 107 amended

After section 107(4) the following subsection is inserted —

“

(5) No fee is payable in respect of a proceeding commenced before the Tribunal under this Act.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 251 Legislation Committee TWENTY-FOURTH REPORT

Page 193, after clause 456 — To insert the following new clause —

“

457. Section 119A inserted

After section 119 the following section is inserted —

“

119A. No fee for application to State Administrative Tribunal

No fee is payable in respect of an application made to the State Administrative Tribunal under this Act.

”.

252 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 13 RACING INDUSTRY APPEALS

THE CURRENT ARRANGEMENTS FOR THE CONDUCT OF RACING INDUSTRY APPEALS IN WESTERN AUSTRALIA

13.1 The RPAT is responsible for hearing and determining appeals against penalties imposed in disciplinary proceedings arising from, or in relation to, the conduct of greyhound racing, horse racing and harness racing.416 The RPAT is established under the Racing Penalties (Appeals) Act 1990.

13.2 Accordingly, the RPAT hears and determines appeals from determinations of RWWA, the controlling authority for thoroughbred, harness and greyhound racing in Western Australia.417 Under the Racing and Wagering Western Australia Act 2003, RWWA has the power to impose penalties for breaches of the Rules of Racing. Disciplinary action that RWWA may take under s 44(1) of that Act includes:

“(a) disqualify, either permanently or temporarily 

(i) any owner or trainer of thoroughbred racing horses, harness racing horses or greyhounds;

(ii) any jockey;

(iii) any driver of harness racing horses; or

(iv) any other person associated with racing;

(b) prohibit any person from participating in or associating with racing in any specified capacity;

(d) prohibit any greyhound from participating in a greyhound race or trial;

416 http://www.orgl.wa.gov.au/racing/racing.php (current at May 20 2004). 417 Department of Racing, Gaming and Liquor, Western Australian Racing Industry Status Report 2002/2003, January 2004, at Internet site: http://www.orgl.wa.gov.au/racing/status_report2002-2003.pdf (current at May 20 2004), p3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 253 Legislation Committee TWENTY-FOURTH REPORT (e) prohibit any person from attending or taking part in a race meeting or entering upon and remaining on a racecourse at which racing is conducted or any licensed racecourse;

(f) impose fines of up to $100 000 for breaches of the rules (other than breaches by persons who are only bound by the rules by reason of section 45(6)(g)), and recover those penalties;

(g) suspend, for such term as RWWA thinks fit, any right or privilege conferred under this Act on any owner or trainer of thoroughbred racing horses, harness racing horses or greyhounds, jockey, driver of harness racing horses or other person associated with racing;

(h) impose non-pecuniary penalties for breaches of the rules.”

13.3 The matters which are subject to RWWA determinations and subsequent appeal to the RPAT cover a broad range of penalised conduct by participants in the racing industry, such as:418

• the administration of drugs to horses or dogs;

• fighting amongst jockeys;

• fighting amongst dogs;

• incompetent riding or driving;

• jockeys or drivers not making sufficient effort;

• interference with other competitors;

• using a whip inappropriately;

• jockeys or drivers not running a race out; and

• bringing the industry into disrepute.

13.4 The Chairman and members of the RPAT are appointed by the Minister for Racing and Gaming. When hearing and determining an appeal, the RPAT comprises a

418 Mr Dan Mossenson, Chairperson, Racing Penalties Appeal Tribunal of Western Australia, Transcript of Evidence, March 17 2004, pp6-7.

254 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 13: Racing Industry Appeals Chairman and up to two members or, in certain prescribed cases, the Chairman sitting alone.419

13.5 The RPAT cost approximately $180,000 to administer in 2002-03, and was funded entirely by the racing industry through deductions from the TAB (which is now part of RWWA).420 In addition to a small filing fee when lodging an appeal, all parties at the RPAT hearings are expected to pay their own costs.421

13.6 Appeals to the RPAT are against a determination of RWWA, a steward of a racing club, or a committee (that is, against a conviction or penalty imposed, such as: disqualification, suspension, a fine or warning). The process for lodging appeals was described to the Committee by Mr Dan Mossenson, the Chairperson of the RPAT, as follows:

“The appeal is instituted by filling out a notice of appeal, which, together with the appropriate lodgment fee, is lodged at the registry, with or without an application for a stay or a suspension of operation of the penalty. We must deal with the stay applications as a matter of top priority and, in effect, have set ourselves as a standard the requirement to try to deal with them on the day of lodgment. The reason for that quite simply is that there are very significant adverse consequences in racing terms to a person who may have been disqualified. Let us say that a trainer has been disqualified. That person therefore is no longer eligible to maintain his racing stable and must shift all his horses to somebody else and transfer the training rights to somebody else. It has consequences for eligibility to nominate horses or dogs to run in races, so there are all sorts of time limit implications in dealing with the matter expeditiously.”422

13.7 As to how the RPAT conducts its hearings, the Committee was advised that:

“In terms of the hearing process for appeals, normally we sit after hours as a convenience to the industry participants. On some occasions, we sit during the day but that is reasonably rare. We try to give a decision as quickly as possible and, in any number of cases, on the spot without deferring things, because of the implications of the

419 Department of Racing, Gaming and Liquor, Western Australian Racing Industry Status Report 2002/2003, January 2004, at Internet site: http://www.orgl.wa.gov.au/racing/status_report2002-2003.pdf (current at May 20 2004), p3. 420 Submission No 7 from Mr Ross Bowe, Chairman, Racing and Wagering Western Australia, November 6 2003, p1. 421 Ibid, and s 17(10), Racing Penalties (Appeals) Act 1990. 422 Mr Dan Mossenson, Chairperson, Racing Penalties Appeal Tribunal of Western Australia, Transcript of Evidence, March 17 2004, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 255 Legislation Committee TWENTY-FOURTH REPORT delay on people no longer being able to participate. When it is a more complicated matter and time is required to reflect on the reasons, we publish the reasons after the event and not necessarily on the spot. The experience is that in a significant number of appeals in which there is legal representation for an appellant it is by Queen’s Counsel. Whenever there is any legal representation, the racing codes engage their own Queen’s Counsel and the matters are taken quite seriously by the respective parties. The respondents to the appeals invariably are the stewards of the respective racing code. If it is a committee decision that is being attacked, then the stewards normally represent the committee or have their counsel represent the committee in the appeal processes. Although fairly heavyweight legal representation or representatives appear often, we try to deal with the matter on a relatively informal and relaxed basis. Obviously, we have built up a body of experience and a body of decisions or a body of case law that has some sway in terms of how we are likely to decide future matters. However, there is a fair degree of flexibility in the way we deal with things. It is important to explain that we are largely dealing with the material that was the subject of the adjudication by the stewards below. … The stewards record their proceedings. On occasion, the stewards admit into evidence exhibits and documents. If it is a riding infringement there will be a video. All of the material that the stewards have before them, which form the basis of their inquiry and determination, is before the racing appeal tribunal. On some occasions, we allow the parties to call supplementary evidence. We do not decide the matter on the basis of it being an appeal in the sense of a fresh hearing or an appeal de novo, but, rather, we evaluate the decision in the light of the material that was before the stewards.”423

13.8 Statistics for the RPAT for 2002-03 are set out in the tables below:424

Table 13.1 Appeals Determined by the RPAT in 2002-03

Code Appeals Appeals Lodged Appeals Hearing Days Carried over in 2002-03 Determined in Occupied from 2001-02 2002-03

423 Ibid, p3. 424 Department of Racing, Gaming and Liquor, Western Australian Racing Industry Status Report 2002/2003, January 2004, at Internet site: http://www.orgl.wa.gov.au/racing/status_report2002-2003.pdf (current at May 20 2004), p18.

256 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 13: Racing Industry Appeals

Code Appeals Appeals Lodged Appeals Hearing Days Carried over in 2002-03 Determined in Occupied from 2001-02 2002-03

Gallops 2 17 18 9.5

Trotting 2 2 3 2

Greyhounds 0 4 4 2

TOTAL 4 23 25 13.5

Table 13.2 Results of Appeals Lodged During 2002-03

Appeal Gallops Trotting Greyhound

Allowed in full (conviction quashed) 1 1 0

Allowed in part (penalty reduced) 1 0 1

Appeals dismissed 12 1 3

Leave to Appeal Refused - - -

Withdrawn 4 1 0

Reserved 1 0 0

Yet to be heard 1 2 0

13.9 RWWA submitted that the RPAT provides quality decisions. It pointed out that in 11 years, over 600 appeals have been heard by the RPAT, with only 18 having been appealed to the Supreme Court (only two of which were successful, with a further three sent back to the RPAT with instructions for further consideration).425

13.10 The RPAT, RWWA and The Western Australian Provincial Thoroughbred Racing Association (Inc) all made written submissions to the Committee expressing their opposition to any change to the current arrangements for dealing with racing industry

425 Submission No 7 from Mr Ross Bowe, Chairman, Racing and Wagering Western Australia, November 6 2003, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 257 Legislation Committee TWENTY-FOURTH REPORT appeals.426 It was stressed to the Committee that specialist racing appeal tribunals remain separate from the consolidated administrative tribunals in both New South Wales and Victoria.427 The Committee notes that the VCAT has only a limited racing jurisdiction; in which it reviews certain racing and bookmaker licensing decisions.428

13.11 The main concerns expressed to the Committee regarding the impact of the proposed SAT on racing appeals fall into the following categories:

• The possible loss of flexibility and speed in the scheduling and conduct of hearings.

• The possible financial burden on the industry if it is asked to contribute to the funding for the SAT (see CHAPTER 12).

• The duplication and delays caused by the requirement to conduct hearings de novo.

• The loss of finality in decisions.

WILL THE PROPOSED SAT BE ABLE TO MATCH THE CURRENT LEVEL OF EXPEDITIOUS DECISION-MAKING IN RACING INDUSTRY APPEALS?

13.12 The Committee was advised by the Chairperson of the RPAT of the following general views that had been expressed to him from industry groups:

“[F]rom the feedback I have received from various quarters within the racing industry, it appears that a range of sections of the industry are comfortable with the present structure and the present process for entertaining appeals from the three racing codes. It has not been suggested to me by any quarter that there would be any advantage in the tribunal losing its discrete role and for the matters to be merged into the larger tribunal. The second observation is that, having just returned to Perth from a conference of heads of racing tribunals of Australasia, I had some relevant feedback from several of the delegates who are within jurisdictions in which administrative appeal tribunals operate. In each case the feedback I had was that there was pressure for their respective racing tribunals to be brought into the umbrella tribunal. In each jurisdiction the racing codes resisted that

426 Submission No 18 from Mr Dan Mossenson, Chairperson, Racing Penalties Appeal Tribunal of Western Australia, November 11 2003; Submission No 7 from Mr Ross Bowe, Chairman, Racing and Wagering Western Australia, November 6 2003; and Submission No 44 from Mr Ian Loxton, Chairman, The Western Australian Provincial Thoroughbred Racing Association (Inc), November 26 2003. 427 Submission No 7 from Mr Ross Bowe, Chairman, Racing and Wagering Western Australia, November 6 2003, p4. 428 Sections 83P-83S, Racing Act 1958 (Vic).

258 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 13: Racing Industry Appeals process and put up an argument that obviously prevailed. The parties from the racing tribunals in the ACT, New South Wales and Victoria with whom I had those discussions indicated that they continue as separate statutory tribunals, with their ongoing structure divorced from the overall administrative appeal tribunal.”429

13.13 The Chairperson of the RPAT pointed to the example of the transfer of jurisdiction in the 1990s of the Liquor Licensing Court to the District Court when describing his concerns regarding the potential practical problems that may face racing appeals under the proposed SAT:

“I can draw on my legal professional experience of dealing with the District Court, which these days has the jurisdiction of the Liquor Licensing Court; whereas formerly the Liquor Licensing Court operated as a discrete court with its own registry and was physically separated from the District Court complex. … The clear experience there of the efficiency in handling matters of administration - such as filing of papers, lodging of documents and communicating with the judge’s associate - has been that it became necessary to bypass the established process of using the public counter and the general registry. Those of us who are regular players and in the know now deal directly with the judge’s chambers upstairs. We send our paperwork directly to the judge’s chambers, because far too many things were being either misplaced, delayed or confused in the overall system. A concern that has been apparent from my observation in it becoming part of the broader process of the State Administrative Tribunal is the degree of difficulty that those appellants of this world who want their matters dealt with urgently will have … .

… However, I am quite conscious of how useful the registrar of the racing tribunal has been over the years in assisting the appellants of this world, some of whom are not as highly educated as one might expect, and in affording assistance in filling out forms, producing the necessary documentation and so on. Having the privacy and convenience of a specific registry and registrar for the process, rather than being at large at a public counter, has been important to the industry.

… The registry is housed within the Department of Racing, Gaming and Liquor. One fronts the general counter, which could be described as the liquor licensing counter, asks for the racing registrar, and he

429 Mr Dan Mossenson, Chairperson, Racing Penalties Appeal Tribunal of Western Australia, Transcript of Evidence, March 17 2004, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 259 Legislation Committee TWENTY-FOURTH REPORT does whatever he has to do on a one-to-one basis. The racing public does not deal with the general counter staff at the department.”430

13.14 As the RPAT noted in its submission that its hearings often take place on the day of lodgment of the appeal and after normal working hours due to the impact of its decisions on the livelihood of the parties to the appeal, the Committee sought the advice of the Government as to whether the proposed SAT would be able to match this level of efficiency and convenience for parties:

“Ms Eckert: There is absolutely no reason why not. Certainly, it should and the real hope is that it will. In fact, there will be areas other than racing penalties in which after-hours hearings will be necessary, such as bedside hearings in guardianship and administration matters on a Sunday morning, and that will continue -

Hon PETER FOSS: How will you speed up the seven days to a directions hearing?

Ms Eckert: The seven to 21 days is just a guideline. If something has to be dealt with immediately, it will be dealt with immediately and there will be the capacity and the facilities within the SAT structure and organisation for that to occur. SAT is meant to be an immediately reactive body, not a body in which a matter can get lost in a quagmire of registry staff.

Hon PETER FOSS: The matter may be dealt with according to its priority. SAT may not see it quite the same way as the people in the racing industry. Everybody sees their appeal as urgent.

Ms Eckert: But if it happens on a Friday morning and there is a big race day on the Saturday affecting a particular horse, it must be dealt with on the Friday.”431

13.15 The Committee also raised this issue with Mr Andrew Marshall, Project Director, SAT Project, who advised:

“Mr Marshall: SAT, when operating, should be able to deal with those matters even quicker, because when SAT is operating, it will have something like 14 full-time members. They are full time, which means that, at any time, urgent matters could be dealt with by one of those people who are on site all the time.

430 Ibid, pp5-6. 431 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p24.

260 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 13: Racing Industry Appeals …

Hon PETER FOSS: The problem I see is that - presuming there are jobs for 14 full-time members - they will all have other things to do. Everything will be important as far as the people involved in it are concerned, and they do not want to get behind. Once they get behind they have problems. If you want to deal with urgent matters, it will mean you have to drop all your current matters, and people are reluctant to do that. Secondly, if you are going to have people available after hours, they tend to take it in rotation. This week you will get the person who knows all about mental health, and next week you will get the person who knows all about guardianship. The following week you will get the person who knows all about building disputes. Only on the next week might you get somebody who knows anything about racing. It worries me a little bit that we will have a duty urgent person whose job it is to look after things this weekend sitting on a racing appeals hearing. …Is it intended that there should be a permanent racing person available every weekend?

…

Mr Marshall: I do not think those sorts of processes have been totally developed yet, because I guess that they all very much depend on the appointment of a president.…We have certainly made a commitment that there will not be any reduction in the availability of SAT to deal with racing penalties than there currently is.

Hon PETER FOSS: How have you made that commitment?

Mr Marshall: We have made it to the racing industry, and to the Racing Penalties Appeal Tribunal.

Hon PETER FOSS: In writing?

Mr Marshall: I am not sure if it was in writing, but certainly it has been made in conversations we have had with them.

…

Hon PETER FOSS: I can accept that that is your intention, but the evidence quite plainly shows that whether that works out in effect will depend on how it is set up by the president, and how they arrange it. They may very well decide that the only way to provide a racing appeals on every weekend is to have three sessional members who are engaged on the basis that they are available every Saturday. In other

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 261 Legislation Committee TWENTY-FOURTH REPORT words, there will be a Racing Penalties Appeal Tribunal, just as there is now, but called SAT. That may be what the president decides is the way to do it. But if the president does not decide to do it that way, and does it some other way, it may very well end up not providing that service, and being in an awful mess. It really depends on the personality of the person who sets it up.

Mr Marshall: I agree with that, and it is our expectation that, once the legislation goes through and the president is appointed, the president would spend a fair bit of time doing what I have been doing, which is consulting with all the boards and bodies that will be affected by SAT.”432

13.16 Mr David Forrester, Barrister, also commented on this issue in the following terms:

“[I]nevitably there will be a time when employees will be held to following the nine to five, or 8.30 to 4.30, procedure. It inevitably becomes that sort of situation. You can do it, because the Supreme Court has a judge on tap to deal with very urgent matters, but it would have to be a very urgent matter indeed, and this, in effect, is an issue involving the rights of parties and the possibilities of them going bankrupt if their horse does not run tomorrow. That is where a tribunal specifically set up to deal with the problems of a particular industry can operate in the fashion required, and people who are appointed to it know that that is what they have to do, but to bring that in as a possibility for everybody would be chaotic.

…I was concerned to hear the other day from somebody - who had been talking to members of the civil service in relation to SAT - that they would be asked to appear, as part of the tribunal, on matters of which they have no knowledge. At one stage they would be the expert as, say, a builder, and the next minute they may be called upon to be the member of the public in relation to a medical problem, or a racing problem, and they have never been to a racecourse in their lives, which would probably be unusual in Australia! That is a good example of how specialist tribunals with a much narrower range would be infinitely preferable to trying to put all this very wide spectrum into one tribunal.”433

13.17 A relevant consideration is the flow-on impact a flexible and expeditious racing appeals jurisdiction will have on other, less rapidly resolved, review jurisdictions

432 Mr Andrew Marshall, Project Director, State Administrative Tribunal Project, Department of Justice, Transcript of Evidence, April 5 2004, pp12-14. 433 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, p7.

262 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 13: Racing Industry Appeals within the SAT. The following comments were received from a representative of the Law Society of Western Australia:

“Ms Thompson: We pointed out in paragraph 2 of section 2 of our submission that SAT needs to adopt practices and procedures that are sufficiently flexibility to deal with all issues that come before it. You refer to an example of the speed and flexibility that is needed. If it has to be an after-hours, same-day hearing, so be it. I cannot see that the SAT Bill as it currently stands prevents that from happening. It is a procedural matter, and the rules that govern practice on a day-to-day basis should ensure that such conduct continues where appropriate.

Mr Hardy: The only disadvantage is that if it does so, every other jurisdiction will want the same speed. If a matter of not allowing a horse to run to its form is heard on Thursday night ready for Saturday at Belmont, why can a person not have his town planning appeal dealt with on Saturday so he can start work on Sunday?

Hon PETER FOSS: It is a very good question.

Mr Hardy: It will create an anomaly. I support what Ms Thompson said: if there is a long established process to provide flexibility to the Racing Penalties Appeal Tribunal, I need to be convinced that the flexibility should be taken away. If others want that speed and flexibility, maybe that is something they can aspire to.”434

PRACTICAL PROBLEMS ASSOCIATED WITH THE PROPOSED SAT CONDUCTING RACING APPEALS AS HEARINGS DE NOVO

13.18 As noted earlier in this report (at paragraph 6.14), pursuant to cl 27 of the SAT Bill the proposed SAT will conduct its review of various decisions on appeal as hearings de novo.

13.19 In relation to the RPAT’s hearings, s 11(3)(c) of the Racing Penalties (Appeals) Act 1990 provides that:

“[A]n appeal shall be heard and determined upon the evidence at the original hearing when the decision or finding appealed against was made, but, if the member presiding considers that to be proper, expert or other evidence may be required or admitted;”

13.20 The Chairperson of the RPAT put forward the following argument against the proposed SAT model’s standard hearing procedure of hearings being conducted de

434 Mr Michael Hardy and Ms Clare Thompson, Members, The Law Society of Western Australia, Transcript of Evidence, March 23 2004, p12. G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 263 Legislation Committee TWENTY-FOURTH REPORT novo, or as if the SAT was making the original decision afresh based on all currently available evidence:

“Mr Mossenson: I can give an example without mentioning the name of a recent case in which we have reserved our decision and for which we are about to hand down our decision. From memory, the proceedings before the stewards occurred in a period of about 22 days over a couple of years. There were thousands of pages of transcript and hundreds, if not a thousand, pieces of paper or different exhibits produced. There was an inordinate amount of scientific evidence regarding the question of bicarbonate of soda having an impact on a horse, and whether the elevated level of TCO2 found in this particular horse occurred as a natural consequence or as a matter of administration; how and why it found itself in the animal; and whether there was something wrong with the drug testing of the two laboratories involved. If the tribunal had to re-hear that type of matter, it would really bog down any system of justice. It would be very costly to the participants and the community. It would regurgitate an inordinate amount of material and I think it would not make the life of whoever was hearing the matter a very happy one. That is just one extreme example of the problem of having to go through the whole process again. The system seems to me to be working quite comfortably and conveniently. When I say “seems to me”, I should point out that I was appointed to chair the tribunal. The tribunal was first established at the end of 1990 and began sitting, from memory, early in 1991; so I have had a continuous role and involvement in the processes. Over the years I have felt pretty comforted that we did not have to hear the whole shooting match from start to finish; that is, having to go through the process of, let us say, a driving offence and requiring all the racing participants, jockeys and drivers in the particular race affected by the case come before us and give their explanation of what happened to them or what they did.

…[A]s I understand it, my colleagues in the east and elsewhere, who are burdened with the de novo process, have a parade of all the parties. In some other jurisdictions the tribunal is differently constituted. We are normally constituted with three lawyers on the panel. In lesser offences, just one person is eligible to sit. In the other jurisdictions, such as Victoria, invariably there is a County Court judge and two assessors or two so-called industry experts who help the judge, not to make the decision but to give advice on the technical aspect of things. Because of the different composition of tribunals in other jurisdictions, it is perhaps more appropriate for them to go

264 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 13: Racing Industry Appeals through more of the process than simply, as you suggest, deal with it with a different mindset but on the same paperwork.”435

13.21 RWWA also provided the following example of a recent RPAT hearing:

“Hearing each matter anew will prove difficult for the racing industry where business is constantly moving around the state. As a simple example, the original inquiry for a recent Careless Riding case heard by the RPAT was conducted in Kalgoorlie where a Perth based rider was suspended for 14 days. Two other riders to give evidence were country-based, one from Kalgoorlie and the other from Esperance. Of the two Stewards to give evidence, one was Kalgoorlie-based…. The de novo process will place a significantly higher burden on industry participants and prove logistically difficult to affect in a timely manner.”436

13.22 On the issue of the SAT’s general requirement that it conduct its hearings as hearings de novo, the Committee notes the following comments in one of the submissions:

“[T]he obligation imposed on the Tribunal to conduct a rehearing de novo is more accurately described as an appeal rather than a review. Judicial review relies mostly on “revisiting” the record of the original proceedings to determine whether the decision was made in accordance with the law. A full rehearing may be necessary at the reviewer’s discretion when conducting a review of the merits. The insistence on a full rehearing seems unduly prescriptive.”437

THE FINALITY OF DECISIONS ON RACING APPEALS

13.23 In relation to decisions of the RPAT, s 14(1) of the Racing Penalties (Appeals) Act 1990 provides that:

“(1) A determination of the Tribunal in relation to an appeal 

(a) shall be taken to be, and given effect to as though it had been, also the determination of RWWA, of a steward, of a racing club, or of a committee, from which the appeal was made; and

435 Mr Dan Mossenson, Chairperson, Racing Penalties Appeal Tribunal of Western Australia, Transcript of Evidence, March 17 2004, p7. 436 Submission No 7 from Mr Ross Bowe, Chairman, Racing and Wagering Western Australia, November 6 2003, p2. 437 Submission No 47 from Mr L B Marquet, May 17 2004, p7.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 265 Legislation Committee TWENTY-FOURTH REPORT (b) is final and binding on the parties to that appeal, and not subject to further appeal or review.”

13.24 The Committee notes that it is still open for parties to challenge the validity of the decisions of the RPAT in the Supreme Court by way of the expensive process of a prerogative writ, for instance on the grounds of lack of power to make the decision or an error on the face of the record. Nevertheless, the proposed SAT will allow appeals to the Supreme Court on questions of law by way of a process that may appear more attractive to parties who wish to delay the implementation of a racing penalty than the current prerogative writ process. This issue was raised with the Chairperson of the RPAT:

“Hon PETER FOSS: ... I think you will find that the net result of all this is that you will be able to appeal to the Supreme and High Courts on a question of law without needing to show the grounds for a prerogative writ.

Mr Mossenson: When you say, “the net effect of all this”, are you suggesting if the jurisdiction goes into SAT? I totally agree.

Hon PETER FOSS: What do you think of that? It seems to me that that is almost an open invitation for people who want to delay…

Mr Mossenson: I think there will be some unfortunate consequences for the industry. There will be some positive consequences for the legal profession; it will generate more work.”438

TIME LIMITS ON RACING APPEALS

13.25 RWWA submitted that the current 14-day time limit for the lodging of appeals should be continued for racing appeals to the proposed SAT.439

THE PRACTICALITIES OF REMOVING RACING APPEALS FROM THE PROPOSED SAT’S JURISDICTION

13.26 The Committee understands that to retain the current racing appeals system outside of the proposed SAT, all that is required is the deletion of Division 113 and cl 1407 from the Conferral Bill.440

438 Mr Dan Mossenson, Chairperson, Racing Penalties Appeal Tribunal of Western Australia, Transcript of Evidence, March 17 2004, p8. 439 Letter from Mr Ross Bowe, Chairman, Racing and Wagering Western Australia, May 27 2004, p1. 440 Letter from Mr Dan Mossenson, Chairperson of the Racing Penalties Appeal Tribunal of Western Australia, March 30 2004, p1.

266 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 13: Racing Industry Appeals

Division 113

Page 494, line 1 to page 501, line 31 - To delete the lines.

Clause 1407

Page 642, lines 1 to 8 - To delete the clause.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 267

CHAPTER 14 THE PROPOSED GUARDIANSHIP AND ADMINISTRATION JURISDICTION OF THE SAT

INTRODUCTION

14.1 The WACARTT report and submissions to the Committee emphasised the unique, protective nature of the jurisdiction exercised by the GAB and the MHRB, and the modern theory and practice supporting the operation of these Boards.441 Therefore, the Committee has separately considered the proposals in the Conferral Bill to confer the original jurisdiction of the GAB and the MHRB on the SAT.

14.2 This Chapter deals with the GAB and CHAPTER 15 deals with the MHRB.

The WACARTT Report

14.3 The WACARTT report recommended that the MHRB and the GAB be aligned with the operation of the SAT, rather than being disbanded and absorbed into the SAT.442 This recommendation appeared to seek to balance the advantages of amalgamation with the specialised nature of the jurisdictions. As the WACARTT report stated:

“In this way, the day to day functions of the two Boards will remain discrete. The special skills required to be exercised by each Board and the special hearing and practice requirements of each Board will remain unaffected.

At the same time, the common membership and the co-location of the two Boards [GAB and the MHRB] will ensure that the best practice required for all original decision making administrative tribunals and administrative review tribunals in this State is achieved in all areas of operation. This will also ensure that the economies of scale in relation to the appointment of members, the training of members, the development of best practice, and the provision of physical accommodation and information technologies are maximised.”443

14.4 The WACARTT was of the view that alignment could be achieved by:

441 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australia Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, p84. The submissions received by the Committee relating to this issue are detailed later in this Chapter. 442 Ibid, pp120-121. 443 Ibid, p81.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 269 Legislation Committee TWENTY-FOURTH REPORT • providing that the Chairperson of each Board be a Presidential member of the SAT and that the other members of the Boards be members of the SAT; and

• physically co-locating the two Boards with the SAT, with the registry and staffing requirements of each Board being provided by the SAT.444

The Conferral Bill

14.5 The Conferral Bill does not adopt the recommendation of the WACARTT report and instead provides for the GAB and the MHRB to be disbanded and amalgamated with the SAT.445

14.6 Ms Eckert advised that the WACARTT recommendation was not adopted because:

“The decision was made by Cabinet that they would be absorbed and that, in fact, there was little difference. However, each of those boards will retain its unique rules within SAT, the special needs of people will be met and the skills required to deal with those sorts of issues will be maintained within SAT.”446

JURISDICTION OF THE GAB

14.7 The Supreme Court has an inherent jurisdiction447 in relation to persons of unsound mind or mental disability which renders them incapable of managing their own affairs (guardianship jurisdiction).448

14.8 Currently, this aspect of the Supreme Court’s inherent jurisdiction is exercised by the GAB pursuant to the Guardianship and Administration Act 1990.449 The GAB was

444 Ibid, pp120-121. 445 For example, clause 418 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 repeals section 5 of the Guardianship and Administration Act 1990 which establishes the Guardianship and Administration Board and provides that the State Administrative Tribunal is to exercise the jurisdiction under the Act. Similarly, clause 763 of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 repeals Part 6, Division 1, Subdivision 1 of the Mental Health Act 1996 which provides for the establishment and administration of the Mental Health Review Board. 446 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, p22. 447 Inherent jurisdiction is defined as “the authority to adjudicate vested in a court as a consequence of it being a court of a particular jurisdiction, notably a superior court of unlimited jurisdiction”. Dr P. Nygh and P. Butt, Butterworths Australian Legal Dictionary, Butterworths, Australia, 1997, p599. 448 Submission No 42 from the Hon David K Malcolm AC CitWA, Chief Justice of Western Australia, November 14 2003, p2. This jurisdiction is often referred to as parens patriae jurisdiction. Pursuant to the parens patriae jurisdiction, “The Crown has inherent jurisdiction to do what is for the benefit of the incompetent”. Secretary, Department of Health and Community Services v JWB (1992) 106 ALR 385 at 411 citing Re Eve [1986] 2 SCR at 4-7-417. 449 Submission No 42 from the Hon David K Malcolm AC CitWA, Chief Justice of Western Australia, November 14 2003, p2.

270 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT created as a specialist tribunal outside the venue of the Supreme Court with the aim of meeting the special needs of persons with decision-making disabilities.450

COMPOSITION AND FUNCTIONS

14.9 The GAB currently comprises a President, a Deputy President and 13 sessional members.451

14.10 The President is required to be someone who is or has been a Judge, Master or Registrar of the Supreme Court, a Judge of the District Court or a Judge of the Family Court of Western Australia and has been recommended for appointment by the Chief Justice.452

14.11 The Deputy President can be a person who is or has been a legal practitioner or is a Registrar of the Supreme Court.453

14.12 The Guardianship and Administration Act 1990 does not prescribe the qualifications of sessional members but the GAB advised that the membership is:

“…multi-disciplinary, drawn from a wide variety of backgrounds with a variety of expertise appointed during the tenure of different governments over the past decade with a common and deep commitment to the rights and interests of persons with disability.”454

14.13 The GAB has the following functions:455

a) to consider applications for guardianship and administration orders;

b) to make orders appointing, and as to the functions of, and for giving directions to, guardians and administrators;

c) to make orders declaring the capacity of a represented person to vote at parliamentary elections;

450 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, pp4-5. In a letter dated July 30 2004, the Hon Justice Michael Barker, President of the Guardianship and Administration Board indicated that since the Guardianship and Administration Board lodged its submission, the President and Deputy President had resigned with the Hon Justice Michael Barker being appointed as President and Registrar S. Dixon being appointed as Deputy President. As such, Justice Barker indicated that he does not personally share all the views expressed by the Guardianship and Administration Board in its written submission. 451 Ibid, p1. Section 6A of the Guardianship and Administration Act 1990 provides that “the Governor may appoint not more than” 20 other persons as members of the Guardianship and Administration Board. 452 Section 6(2), Guardianship and Administration Act 1990. 453 Ibid, s 6(3). 454 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p1.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 271 Legislation Committee TWENTY-FOURTH REPORT d) to review guardianship and administration orders and to make orders consequential thereon;

e) to give or withhold consent to the sterilization of persons in respect of whom guardianship orders are in force;

f) to perform certain functions in relation to powers of attorney that operate after the donor has ceased to have legal capacity; and

g) any other functions vested in it.

14.14 The GAB advised that:

• The term guardianship refers to the appointment of a person to make decisions of a personal nature for an adult person.456

• The term administration refers to the functions performed by a person appointed by the GAB to make financial decisions and act in legal proceedings on behalf of another.457

GUARDIANSHIP AND ADMINISTRATION - OTHER JURISDICTIONS

14.15 Given the emphasis in the submissions on the unique, protective nature of the GAB’s jurisdiction, it relevant to briefly consider the approach to that jurisdiction in the other States and the Territories.

Victoria

14.16 On July 1 1998, the Guardianship List of the VCAT took over the jurisdiction of the former Victorian Guardianship and Administration Board.

14.17 The WACARTT report referred to and relied upon the “successful accommodation” of the guardianship jurisdiction within the VCAT in making its recommendation about the alignment of this jurisdiction with the SAT.458

14.18 In December 2001, the VCAT established a new division - the Human Rights Division which incorporates the Guardianship List and the Anti-Discrimination List. With

455 Section 13, Guardianship and Administration Act 1990. 456 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p3. 457 Ibid. 458 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australia Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, p81.

272 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT respect to this adjustment of the VCAT’s practices, the former President of the VCAT, the Honourable Justice Kellam stated:

“Since the commencement of VCAT, we have recognised that the nature of matters dealt with by the Guardianship List and the Anti- Discrimination List is distinctly different from other disputes coming before VCAT. Of all the issues dealt with by VCAT, none are more important than those arising in relation to the disabled, vulnerable, elderly and other members of our society whose rights are protected by the legislation relevant to the jurisdiction exercised by these Lists. Accordingly, the Rules Committee decided that these Lists should be in a separate Division of VCAT, which clearly underlines the human rights issues addressed by them.”459

14.19 Notwithstanding Justice Kellam’s comments, it became clear, based on the Committee’s meetings in Victoria, that the Planning and Environment List has, in recent years, become the most important of the VCAT’s lists, both in terms of public interest and the legal and social implications of the VCAT’s decisions.

14.20 In Victoria, the Committee discussed the inclusion of the guardianship jurisdiction with the:

• Victorian Public Advocate: Mr Julian Gardner, who has held that position for the last four years; and

• VCAT: Mr Justice Stuart Morris, President; His Honour, Judge John Bowman, Vice President - Human Rights Division; Mr John Ardlie, Chief Executive Officer and Mr Ian Proctor, Principal Registrar.

New South Wales

14.21 The ADT does not have jurisdiction in relation to guardianship and administration. However, in November 2002, the New South Wales Parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission (NSW Committee) considered the amalgamation of the New South Wales Guardianship Tribunal with the ADT as part of a wider inquiry into an expansion of the ADT’s jurisdiction.460

459 Victorian Civil and Administrative Tribunal, Annual Report 2001-02, September 30 2002, p6. 460 The review was conducted pursuant to section 146 of the Administrative Decisions Tribunal Act 1997 (NSW), which provides that (1) A Parliamentary inquiry is to be held into the jurisdiction and operation of the Tribunal (a) by a joint committee of the Legislative Council and Legislative Assembly to be established for the purpose, or (b) by an existing such joint committee to which the matter is referred by resolution of the Legislative Council and Legislative Assembly; and (2) A report by the joint committee of the results of the inquiry is to be tabled in the Legislative Council and Legislative Assembly as soon as is practicable after the end of the period of 18 months from the establishment of the Tribunal.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 273 Legislation Committee TWENTY-FOURTH REPORT 14.22 The NSW Committee concluded that it could not see any reason, in principle, why the guardianship jurisdiction should be excluded from the ADT. As a general matter, the NSW Committee recommended that legislation should be brought forward to merge separate tribunals with the ADT unless there are clear reasons why such inclusion would be inappropriate or impractical.461

14.23 The ADT’s 2002-03 Annual Report indicated that there was a Ministerial Review of the ADT in progress and that the final report may include a response to the recommendations of the NSW Committee.462 During its meetings in NSW, the Committee was advised by the ADT that the Ministerial Review is yet to be completed.463

Other States and Territories

14.24 Queensland, South Australia, Tasmania and the Australian Capital Territory have specialist tribunals or boards dealing with the guardianship jurisdiction.464 In the Northern Territory guardianship applications are made to the Local Court which is assisted by a guardianship panel appointed by the Minister.465

OVERVIEW OF ISSUES RAISED BY THE SUBMISSIONS

14.25 The Committee did not receive any submissions supporting the amalgamation of the GAB with the SAT. The issues raised by the submissions fell into two categories:

• those submissions directed to excluding the GAB from the SAT; and

• those submissions raising concerns with the operation of the SAT Bill and the Conferral Bill in relation to the GAB’s jurisdiction.

461 New South Wales, Joint Parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission, Report on the Jurisdiction and Operation of the Administrative Decisions Tribunal, November 2002, pp43-44. 462 Administrative Decisions Tribunal, Annual Report 2002-03, September 10 2003. See ‘The Year in Review’. 463 Meeting with Judge Kevin O’Connor, President, New South Wales Administrative Decisions Tribunal, Sydney, August 4 2004. 464 See http://www.ijcga.gov.au/, (current at June 28 2004). This site is the website of the Australian Guardianship and Administration Committee which was established to provide a national forum for all state and territory agencies associated with adult guardianship and administration. The website has links to the relevant boards, tribunals and relevant bodies in each State and Territory. 465 Sections 3, 8 and 9 of the Adult Guardianship Act 1988 (NT).

274 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT

SUBMISSIONS DIRECTED TO THE EXCLUSION OF THE GAB FROM THE SAT

Special Nature of the Jurisdiction

14.26 The submissions emphasized the history of the GAB, which has led to it fulfilling a unique and specialized role.

14.27 The Chief Justice indicated that he has consistently opposed the inclusion of the GAB as part of the SAT.466 His Honour submitted that the fundamental point is that the GAB is not an administrative board or tribunal which makes administrative decisions but is a body which exercises part of the inherent jurisdiction of the Supreme Court. The Chief Justice emphasized that the sensitive nature of the jurisdiction led to the Supreme Court agreeing to its excision from the formal court environment to the GAB.467

14.28 In detailing the work undertaken to create the GAB over approximately 10 years, the GAB advised the Committee that:

“[A] separate specialist tribunal was also seen as having distinct advantages in developing the expertise and processes necessary for exercising this complex jurisdiction. It would have the ability to take a more flexible, active and inquisitorial role than a Court…Courts and other formal structures of a legalistic type were seen to present a barrier to participation in the process, especially for the people whose rights and protection were central to the jurisdiction.”468

14.29 The submissions stressed that the GAB is quite distinct from the other tribunals being amalgated. In particular:

• The decisions of the Board touch the most basic and private aspects of a person’s life and fundamentally affect their personal autonomy.469

• Matters before the GAB are not adversarial disputes between parties and are not disputes between individuals and government.470

• The GAB is a socio-legal response to dependent persons rather than a disciplinary or judicial jurisdiction.471

466 Submission No 42 from the Hon David K Malcolm AC CitWA, Chief Justice of Western Australia, November 14 2003, p2. 467 Ibid. 468 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p4. 469 Ibid, p2. 470 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 275 Legislation Committee TWENTY-FOURTH REPORT 14.30 The Committee notes that the WACARTT report accepted that the GAB has a very special jurisdiction and this influenced the recommendation for alignment.472

14.31 The submissions expressed the concern that through amalgamation, the specialised nature of this jurisdiction would be lost.473

14.32 In response to these concerns, Ms Eckert advised that the unique nature of each jurisdiction within the SAT will be reflected in both SAT’s procedures and in the qualifications and experience of its members.474 Ms Eckert further advised that it is proposed that the GAB will be part of the ‘Human Rights and Equal Opportunity’ stream of the SAT and specific practice notes will be issued for particular streams or particular enabling Acts within those streams. Ms Eckert indicated that it is primarily through this measure that SAT’s procedures will be adapted to the different requirements of particular jurisdictions.

14.33 The Committee notes that similarly to the GAB, the former Victorian Guardianship and Administration Board consisted of persons who were selected primarily because of their knowledge and experience in matters relating to disabilities. The Committee understands that knowledge and experience in relation to disabilities may or may not be a relevant factor in the selection of members for the VCAT. Some members sit exclusively in other Lists in which disabilities, guardianship and administration are not relevant. They may be engaged in those lists for several years before being listed in the Guardianship List.

14.34 In relation to concerns about a loss of specialization with respect to guardianship matters in the VCAT, the former President of the VCAT, the Honourable Justice Kellam told the NSW Committee considering reforms to the ADT that:

“We have been vigilant about it. I will not allocate people to that list unless I am satisfied they have the capacity and expertise. In fact, the Act says they are not to be allocated unless they have the requisite skills. Quite obviously, you have to train people and, if I have taken somebody from another jurisdiction and put them into guardianship, I have had them sit with a guardianship member until we are happy

471 Letter from Reverend Canon Leslie Patrick Goode, May 20 2003. 472 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australia Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, p81. 473 Submission No 39 from Dr Erik Leipoldt, received November 14 2003, p5 and Submission No 10 from the Reverend Canon Leslie Patrick Goode, November 11 2003, p5. 474 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, June 17 2004, “Submission to Standing Committee on Legislation of the Legislative Council, in Response to the Public Submission made to the Committee on the SAT Bills”, p4.

276 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT they have the skills… But I think if you are careful and vigilant about it you do not reduce to the lowest common denominator.”475

14.35 Additionally, the Committee notes that the current President of the VCAT, the Honourable Justice Stuart Morris, considers that the VCAT has not resulted in a loss of specialist knowledge.476

What is to be Gained by Amalgamation?

14.36 The submissions highlighted that the 1998 Review of the operation of the Guardianship and Administration Act 1990 (pursuant to section 122 of the Act) “unequivocally endorsed the continuation” of the GAB finding, amongst other things, that:

“[t]he system is accessible, responsive and accountable. It operates successfully in an area (that of protecting the freedoms and rights of people with decision-making impairments who are highly vulnerable) where traditionally social policy and legislative programs have not always been a success.”477

14.37 Consequently, the submissions queried why it is to be amalgamated and whether it will deliver better outcomes for clients of the GAB.478

14.38 Ms Eckert advised the Committee that the following advantages are offered by the amalgamation of the GAB with SAT:

“The benefits to be derived from co-location - and, in the end, from the transfer of the functions of the GAB (and the MHRB) to SAT as now proposed by the Bill, are identified in the Barker Report…Those benefits include such factors as citizens gaining access to a single, one-stop tribunal in place of a variety of tribunals, there being an identifiable point of contact for all citizens in respect of most civil and administrative review decisions, more information being provided to citizens about matters affecting them and reasons for decision, a more flexible and user-friendly system of decision-making, and the availability of a wide range of expert and experienced members who

475 The Honourable Justice Kellam, Former President, VCAT, Transcript of Evidence, NSW, Joint Parliamentary Committee on the Office of the Ombudsman and the Police Integrity Commission, August 21 2004, p12. 476 Justice Stuart Morris, ‘The Emergence of Administrative Tribunals in Victoria’, AIAL FORUM No. 41, Australian Institute of Administrative Law, April 2004, 16 at p21. 477 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p6. 478 Reverend Canon Leslie Patrick Goode, Transcript of Evidence, November 11 2003, p2 and Submission No 39 from Dr Erik Leipoldt, received November 14 2003, p5.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 277 Legislation Committee TWENTY-FOURTH REPORT are well trained in the best practice of decision-making. The Barker Report added that such an amalgamation ensures best practice will be applied in these areas, as in all others. A further benefit identified in the Barker Report at page 84[86] is that these boards will not operate in isolation from other administrative decision-makers.”479 (emphasis added)

14.39 Ms Eckert’s advice also detailed best practice advantages to be gained from the amalgamation including:480

• an increase in the intellectual and material resources available for members resulting in better decision-making;

• the availability of more full-time members resulting in matters being dealt with more expeditiously;

• the improvement of the training and supervision of full-time and part-time members;

• more full-time members devoted to specialised areas thereby improving the quality, consistency and timeliness of decisions; and

• a stronger basis to argue for any increased resources, new practices, better training and reforms to the law that are identified as necessary to adequately serve the people in the community affected by the Guardianship and Administration Act 1990.

14.40 Based on the Committee’s meetings in New South Wales and Victoria, it is apparent that there are significant cost and logistical issues involved in providing training for members of the ADT and VCAT. However, it is possible that if distinct streams or lists within the SAT controlled their own budgets and arranged their own training then such problems may be avoided.

Accessibility

14.41 The WACARTT report recognised that appropriate facilities will be required where guardianship and mental health proceedings are being conducted, given the sensitivities of the parties.481

479 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004, p7. 480 Ibid, pp7-8. 481 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australia Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, p81.

278 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT 14.42 The Chief Justice submitted that when the GAB was established there was seen to be an immediate need for it to be located in premises separate from the formal environment of a court complex and in a location which facilitated both ease of access and an informal environment.482

14.43 The submissions asserted that a key element in the success of the GAB has been its accessibility.483 Based on the submissions, the Committee understands that there are two aspects to accessibility for clients of the GAB:484

• physical access to the premises and the difficulties that may be faced by persons with disabilities; and

• social access or the informality of the environment, which serves to place those attending at ease.

14.44 The GAB has already moved into the proposed SAT premises at 12 St George’s Terrace485 and the Committee received a submission from Reverend Canon Goode, a member of the GAB (in his personal capacity) which raised serious concerns with both the physical and social accessibility of these premises.

14.45 In terms of physical access, Reverend Canon Goode indicated that the GAB was originally located in the central business district but moved to the Hyatt Centre in East Perth (Hyatt Centre) after clients experienced physical barriers such as a very busy thoroughfare, no readily available parking spaces and no drop off area for disabled persons. Reverend Canon Goode asserted that the location at 12 St George’s Terrace takes the GAB’s clients back to the previous problems.486

14.46 Reverend Canon Goode provided the following example of the problems posed by the location of the SAT premises in the central business district:

“The Town Planning Tribunal was already in the premises. As we came out of the premises… a van pulled up at a public bus stop that was a no parking area. The driver was obviously on his way to the town planning commission. Fortunately, he had somebody with him.

482 Submission No 42 from the Hon David K Malcolm AC CitWA, Chief Justice of Western Australia, November 14 2003 and the attached copy of a letter from the Chief Justice of Western Australia to Mr Michael Barker QC, Chair, Western Australian Civil and Administrative Review Tribunal Taskforce, dated March 14 2002. 483 Submission No 10 from the Reverend Canon Leslie Patrick Goode, November 11 2003 and Submission No 39 from Dr Erik Leipoldt, received November 14 2003. 484 Ibid, pp3-4. 485 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 1 2004, p6. Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003 and Submission No 10 from the Reverend Canon Leslie Patrick Goode, November 11 2003, p3. 486 Submission No 10 from the Reverend Canon Leslie Patrick Goode, November 11 2003, p3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 279 Legislation Committee TWENTY-FOURTH REPORT He opened the back of his van and threw his maps, tripods and all the rest of it into the gutter. While his friend stood and guarded them, he went off to try to park his van. I pictured that involving someone with a person in a wheelchair or a demented granny, saying, ‘Just stay there, granny. I’ll be back.’ ”487

14.47 Further, Reverend Canon Goode made the following observations with respect to the accessibility of the SAT premises:

“[W]hen you face the building there is a huge revolving door and off to your right is a wall of very black marbly stuff - probably plastic. You must look on that for either a place to put a card or a button to press. Then when the door opens, there is a ramp in front of you. However, if your eyesight is not so good and you are in a wheelchair, you would have quite a difficult time getting in. When you come up to the fourth floor where the board’s hearing rooms are located, the lift opens onto a central pillar, which I understand cannot be moved because the building would fall down. Fixed seating is around that pillar, so that if you come out of the lift in a wheelchair, you must take a very sharp right or left turn if you leave the central lift.

The other difficulty is that there is only one public area. Quite recently one of our senior board members was physically attacked and quite severely injured in the hearing room. The security guard was disabled by having a chair thrown at him. Eventually he managed to get the assailant in a headlock. When he dragged him out, the only place he could drag him into was a public waiting area where people were waiting to go into hearings.”488

14.48 In terms of social access, Reverend Canon Goode indicated that the GAB clients include many people with little or no knowledge of the law who are often disturbed by a process which opens their personal affairs for scrutiny. He submitted that the GAB’s clients will hesitate to approach the SAT with its more formal, less accessible style.489

14.49 The Committee attended the former premises of the GAB at the Hyatt Centre (which were vacant) and the premises at 12 St George’s Terrace on March 30 2004. The Committee examined the accessibility to the building, the hearing rooms and the staff areas.

487 Reverend Canon Leslie Patrick Goode, Transcript of Evidence, November 11 2003, p4. 488 Ibid. 489 Submission No 10 from the Reverend Canon Leslie Patrick Goode, November 11 2003, p4.

280 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT 14.50 In relation to the suitability of the proposed SAT premises for the GAB’s clients, Ms Eckert advised that:

“The proposed SAT premises have been designed with the needs of the GAB clients specifically in mind. The GAB hearing rooms are located on the 4th floor. All other hearing rooms are on the 8th and 9th floors. GAB clients have two separate waiting areas on the 4th floor isolated from the main reception area. In close proximity to the GAB hearing rooms are small meeting/interview rooms for use by GAB clients. Two larger interview rooms off the main reception area are also available for this purpose…

There was extensive consultation with the GAB, and to a limited extent the MHRB during the development of the plans for the fit out, so as to ensure that their special requirements were met. That consultation continues on an ongoing basis in order to remedy any problems as they arise.”490

14.51 The Executive Officer’s Report in the GAB’s 2002/2003 Annual Report indicates that input from the GAB’s perspective was provided to the SAT Implementation Team to ensure that the internal design of the premises would meet the need of its clients.491

14.52 Ms Eckert provided the Committee with copies of two reports prepared by the Independent Living Centre of WA on the disability access at 12 St George’s Terrace and the former GAB premises in the Hyatt Centre.492 Ms Eckert advised the Committee that the conclusions in the report with respect to 12 St George’s Terrace indicated that the proposed facilities in that building provide superior disabled access than the previous GAB premises in the Hyatt Centre.493

14.53 The Committee has considered these reports and is unable to find a statement supporting Ms Eckert’s assertion. Based on the Committee’s site visits, it considers that, from a general perspective, the accessibility of the premises at 12 St George’s Terrace is considerably worse than at the Hyatt Centre.

14.54 Ms Eckert indicated that of 47 recommendations contained in the report of the Independent Living Centre of WA, 38 have been fully complied with and of the

490 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 1 2004, p7. 491 Guardianship and Administration Board, Annual Report 2002/2003, p5. 492 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 1 2004, p7. 493 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 281 Legislation Committee TWENTY-FOURTH REPORT remaining nine; five have not been complied with because of building design and the other four are being followed up.494

14.55 On August 5 2004, Ms Eckert provided additional evidence on the issue of accessibility as follows:

“It may be noted that, at the time the committee visited 12 St George’s Terrace to inspect the GAB premises, some settling in difficulties were observed. These have been, and will continue to be addressed and resolved. Justice M L Barker of the Supreme Court was appointed in March 2004 as President of the GAB. He has been directly involved in dealing with these issues and others relating to the practices and procedures employed by the GAB at present, the appropriate accommodation for members, the layout of hearing rooms, the general question of security within the tribunal’s context and particularly in the GAB setting, and the general question of document handling and confidentiality. There is every reason to think that under the Judge’s management and direction any outstanding settling-in problems experienced by the GAB at 12 St George’s Terrace will be short-lived.”495

Confidentiality

14.56 Given the sensitive nature of the GAB’s jurisdiction, the submissions raised the confidentiality of its files and records. The GAB submitted that:

“The Board’s files contain information of the most sensitive kind, including detailed medical and psychiatric reports, detailed financial information, conflictual family histories, and allegation of physical or sexual abuse and financial exploitation. It is therefore not surprising that the Guardianship and Administration Act contains substantial safeguards regarding privacy and confidentiality. See for example, s 112(3), s 113, and clause 12 of Schedule 1, Part B. On their face, the Bills appear to continue that protection. However, in practice a file pertaining to a person who is the subject of an order will be dealt with as part of a much larger structure. The practical effect of section 112(3) of the Act in this context is quite different when applied

494 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, pp9-10. 495 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004.

282 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT to a Board of 15 members and 24 staff than when applied to SAT with 200-300 sessional members and over 50 staff.”496

14.57 Reverend Canon Goode expressed concerns about the record keeping practices at the proposed SAT premises stating:

“[a]nybody can walk in and out of the current record library and access documents that are there. They are obviously members of staff because the library is behind secure doors, but we do not have any control over the other tribunals and there are registry staff from other tribunals.”497

14.58 With respect to these concerns, Ms Eckert stated:

“It is not the case that board or tribunal members or staff not involved in the GAB currently have, or ever will have, access to guardianship and administration (or mental health) files.

Currently, the GAB files are kept in a specific and secure part of the 4th floor of 12 St George’s Tce, in a separate compactus. The GAB files are made from a distinctive plastic. A records management supervisor and assistant have been employed. They have been formally granted access to GAB records pursuant to Section 112(4) of the GA Act. Their job includes maintaining the confidentiality and security of GAB files and records.

Internal procedures are in place to ensure that only GAB members and officers and specifically authorised persons (such as the records manager) have access to GAB files. Members and staff who are not entitled to access to GAB records are not permitted access to the compactus in which GAB files are stored.

Some GAB records are also held electronically on what is called the TRIM system, so that those records are only accessible by identified records staff and members and staff of the GAB.” 498

496 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p11. 497 Reverend Canon Leslie Patrick Goode, Transcript of Evidence, November 11 2003, p6. 498 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004, p9.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 283 Legislation Committee TWENTY-FOURTH REPORT Legalistic Framework

14.59 The submissions emphasised the importance of preserving the informal nature of the GAB given that one of the reasons for the creation of the GAB was to exclude the formalities associated with Supreme Court proceedings.499

14.60 The GAB submitted that provisions such as clauses 45(3), 46(4) and 47(3) of the SAT Bill which provide that certain powers of the SAT are only exercisable by a legally qualified member, promote a more formal and legalistic approach.500

14.61 The GAB submitted that their Board has operated effectively with and without legally qualified members and that the exclusions contained in these clauses are not appropriate for matters before the GAB.501

Observations Relating to the Exclusion of the GAB from the SAT

14.62 The Committee has carefully considered the submissions directed to the exclusion of the GAB from the SAT. A significant issue for the Committee with respect to the amalgamation of the GAB with the SAT was the social and physical accessibility for GAB clients.

14.63 The Committee notes that the WACARTT report contemplated the GAB moving to premises where the facilities were shared with other, disparate, jurisdictions. However, that report also recognised that appropriate facilities would be required, given the sensitivities of the parties.502

14.64 Based on the site visits and the evidence received, the Committee is of the view that:

• the proposed SAT premises have created considerable physical and social barriers; and

• the previous GAB premises provided superior accessibility.

14.65 In reaching this view, the Committee notes that the recommendations of the Independent Living Centre of Western Australia have been largely implemented. Further, Ms Eckert has advised that there are ongoing efforts to improve the accessibility of the premises under the guidance of the President, the Honourable,

499 Submission No 39 from Dr Erik Leipoldt, received November 14 2003, p4 and Submission No 10 from the Reverend Canon Leslie Patrick Goode, November 11 2003, p4. 500 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p12. 501 Ibid. 502 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australia Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, p81.

284 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT Justice Barker. However, these matters cannot overcome the fact that the SAT is located on a busy city street which, of itself, creates a physical barrier to GAB clients accessing the SAT. Relevantly, the GAB was previously moved from a similar location.

14.66 The Committee is also concerned that GAB applications will be dealt with at the single, common registry for the proposed SAT. The Committee considers that this will increase the risk of registry staff inadvertently disclosing confidential GAB information to clients attending the SAT registry for other applications such as town planning matters. In contrast, the Committee observes that the VCAT has a registry which is divided into the various divisions by partitioning thereby reducing the risk of an inadvertent disclosure.

14.67 Another problem in the Committee’s view is the fact that GAB clients will be required to attend hearings on the 4th floor which is the same floor as the common registry of the proposed SAT. GAB clients waiting for hearings will be seated near the registry which presumably will be busy, given the large jurisdiction of the proposed SAT. In contrast, the Committee notes that the 1999 Law Reform Commission Review of the Criminal and Civil Justice System presented the registry of the GAB at the Hyatt Centre as an example of a waiting area with positive design aspects for users’ physical and psychological comfort.503

14.68 At paragraphs 10.12 to 10.17 the Committee outlined its concerns about the hearing rooms of the proposed SAT premises. Based on the site visits, the Committee observes that the hearing rooms at the Hyatt Centre appeared to have a design which enhanced ease of access and enabled the parties to approach and depart the hearing rooms at separate points.

14.69 The Committee considers that the problems with respect to the registry and the hearing rooms should be addressed as part of the ongoing efforts to improve the accessibility of the proposed SAT premises. The Committee emphasises that these are practical matters that cannot be specifically resolved by the legislation.

14.70 At a general level, these issues and the problems with a central business district location, could have been addressed by the Committee recommending the deletion of those clauses relating to the Guardianship and Administration Act 1990 from the Conferral Bill. However, the relocation of the GAB to those premises in anticipation of the passage of the SAT legislation, effectively precluded the Committee from making such a recommendation. The significant cost and upheaval for the GAB to return to its previous premises operate to prohibit such a recommendation.

503 Law Reform Commission, Review of the Criminal and Civil Justice System in Western Australia, Final Report, Project No 92, Western Australia, September 1999, p310.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 285 Legislation Committee TWENTY-FOURTH REPORT

SUBMISSIONS RELATING TO THE SAT BILL, THE CONFERRAL BILL AND THE GAB

Clause 45 - Copies of Applications

14.71 Clause 45 of the SAT Bill requires applicants to give copies of applications to each other party and other persons as required by the SAT Bill, the enabling Act or a Tribunal direction. The GAB submitted that this will create unintended consequences for its clients. In particular, given the wide definition of “party” in the Guardianship and Administration Act 1990 and the fact that applications before the GAB often contain a reference to medical, psychiatric and financial details, the GAB submitted that clause 45 may be unduly invasive by requiring wide circulation to all parties.504

14.72 The Committee notes that currently, section 41 of the Guardianship and Administration Act 1990 simply requires the executive officer to notify certain persons when an application is made. Additionally, the GAB advises parties of their right to inspect the relevant application and other documents but parties seeking copies are required to give undertakings regarding confidentiality.505

14.73 Ms Eckert provided the Committee with draft amendments to the SAT Bill prepared by Parliamentary Counsel one of which relates to clause 45 - see Appendix 5. The effect of the proposed amendments is to add clause 45(2)(c) so that clause 45 reads as follows:

“45. Who has to be given a copy of an application

(1) When an application is accepted by the executive officer the applicant is to give a copy of the application to -

(a) each other party;

(b) any other person entitled under this Act or the enabling Act to a copy of, or notice of, the application; and

(2) Subsection (1) does not require the applicant to give a copy of the application to a person mentioned in subsection (1) (a “notifiable person”) if -

504 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p11. 505 Ibid.

286 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT (a) the executive officer has given or undertaken to give a copy of the application to the notifiable person; or

(b) under subsection (3) the Tribunal dispenses with the requirement to give a copy of the application to the notifiable person.

14.74 The Committee considers that this amendment addresses the concerns expressed in the submission by the GAB members.

Own Motion Power

14.75 When the GAB makes a guardianship or administration order it is required to provide for a periodic review within five years of the date of the order.506

14.76 The GAB must undertake mandatory reviews when certain events occur such as the death of a guardian or administrator.507

14.77 Additionally, section 86 of the Guardianship and Administration Act 1990 enables the GAB to review a guardianship or administration order at any time:

• of its own motion;

• on application of a represented person or a guardian or administrator; or

• on application of a person to whom leave has been granted.

14.78 Clause 442 of the Conferral Bill amends section 86 to expand the list of persons who may apply for a review at any time to include the Public Advocate. However, significantly, clause 442 removes the ability of the SAT to review a guardianship or administration order of its own motion.

14.79 The GAB submitted that the own motion power is “fundamental to and entirely consistent with its responsibility to ensure that orders continue to operate in the best interests of the person concerned.”508 Further, the GAB submitted that the power is consistent with the protective and supervisory nature of its jurisdiction.

506 Section 84, Guardianship and Administration Act 1990. 507 Ibid, s 85. 508 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p9.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 287 Legislation Committee TWENTY-FOURTH REPORT 14.80 The GAB submitted that removing the own motion power might lead to the situation where, if circumstances change before a periodic review is due, the SAT must await an application from the Public Advocate or another person. They asserted that this could place the SAT in the dubious position of persuading someone to make an application and could be more complicated if the concerns come from a confidential informant.509

14.81 The GAB also noted that if the own motion power is removed, Western Australia will be the only jurisdiction where the relevant tribunal does not have the power to review an order of its own motion.510 The Committee notes that the VCAT is empowered to review guardianship and administration orders of its own motion (section 61(3)(a) Guardianship and Administration Act 1986 (Vic)).

14.82 In response to these concerns Ms Eckert advised that:

“The removal of the ‘own motion’ power by clause 442 of the Conferral Bill, will, as in the mental health jurisdiction, ultimately have little practical effect on the review of guardianship and administration orders under the GA Act. This is because the current system will be replaced by the ability of ‘any person’, including the executive officer of SAT, to bring an application before SAT under the GA Act.

…Proposed section 86 will allow the Public Guardian, a represented person, a guardian, an administrator or any person granted leave to apply under section 87, the right to make an application to SAT at any time to review a guardianship or administration order.

Section 87 then sets out that any person may apply for leave to apply to SAT for a review and where SAT is of the view that there is reason to hold a review, leave will be granted to that person. In this way, the rights of represented persons will be well protected and the activities of guardians and administrators will be properly and closely monitored, in much the same way as they are currently.

In effect, all interested persons will still have the ability to ask SAT to review an order; where a matter is of concern to a member of SAT, the executive officer would bring the application before SAT. In this way, very little will change under the proposed SAT Bills.

509 Ibid. Similar concerns were also raised in submission No 39 from Dr Erik Leipoldt, received November 14 2003, p3. 510 Ibid.

288 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT …[B]ecause the tribunal is a large organisation comprised of many members, the notion that the ‘tribunal’ of its ‘own motion’ might do something, such as bring a matter before itself, is unwieldy. However, the power of ‘any person’ to bring a matter before SAT under the GA Act would be appropriate and, as noted, would enable persons such as the executive officer of the tribunal to make an application to SAT in an appropriate case.

In effect, this means that the proposed amendments to the GA Act effectively replicate the ‘own motion’ provision through the range of ‘bodies’ that can bring an application before SAT under the GA Act. It ensures that there will not be a situation where a matter of concern is not bought to the attention of SAT at the appropriate time.”511 (emphasis added)

14.83 Although Ms Eckert advised that the removal of the own motion power will have little practical effect because the executive officer will be able to bring applications within the criteria of “any other person”, the Committee has noted a distinction from the current process.

14.84 When seeking a review under section 86 of the Guardianship and Administration Act 1990 (applications for a review “at any time”), the executive officer will have to bring the application as “any other person” and as such will be required to seek leave under section 87. There is currently no requirement for leave if the GAB wishes to bring an application of its own motion.

14.85 Nevertheless, the Committee appreciates that as a matter of practicality, applications for leave by the executive officer to the SAT are likely to be granted. As such, these amendments effectively replicate the ‘own motion’ power currently available under the Guardianship and Administration Act 1990.

Examination of Accounts

14.86 Clause 439 of the Conferral Bill amends section 80 of the Guardianship and Administration Act 1990.

14.87 Currently, pursuant to section 80 of the Guardianship and Administration Act 1990 persons appointed as administrators for the estates of incapable persons are required to submit accounts to the GAB for examination (section 80(1)). The GAB may allow the accounts, disallow any amount paid or determine that any amount or asset has been omitted, or that any loss has occurred (section 80(3)). The Committee notes that this power was formerly vested in Masters of the Supreme Court.

511 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004, pp5-6.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 289 Legislation Committee TWENTY-FOURTH REPORT 14.88 Administrators may be either private individuals or the Public Trustee. The Public Trustee is appointed when other options are not available or desirable.512 In this sense, the Public Trustee may be considered to be the administrator of ‘last resort’. If the Public Trustee has been appointed as the administrator, then accounts do not have to be submitted to the GAB (section 80(7)).

14.89 Ms Eckert advised that, in practice, the Estates Management section of the GAB reviews the accounts submitted by private administrators, reports to the members of the GAB on any issues of concern and indicates whether the accounts should be passed.513

14.90 The proposed amendment to section 80 replaces the GAB with the Public Trustee as the primary agency responsible for the examination of accounts.514 The GAB members opposed this proposal on the following grounds:515

• The separation of the examination of accounts of administrators from the SAT’s supervisory jurisdiction in respect of the review of administration orders does not appear to recognise that the performance of an administrator is inherently bound up with the question whether an administration order is operating in the best interests of the represented person.

• The GAB currently exercises a level of discretion, judgment and flexibility in the examination of accounts which the Public Trustee may not be able to apply. The GAB has knowledge of all the circumstances relating to the administration order and this knowledge is applied in the examination of accounts. For example, where the estate is simple and the administrator is a family member, the Board may excuse certain deficiencies in the form of the account. The Public Trustee will not have the benefit of such knowledge which may result in a less flexible approach. This in turn has the potential to act a barrier to family members acting as administrators which was one of the purposes of the Guardianship and Administration Act 1990.

14.91 The Committee notes that the VCAT may appoint a person to examine an administrator’s accounts or undertake that task.516

14.92 When asked why the Public Trustee is to be vested with the role of examining administrator’s accounts, Ms Eckert responded:

512 Submission No 39 from Dr Erik Leipoldt, received November 14 2003, p4. 513 Ibid, p2. 514 Ibid. 515 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, pp9-10. Similar concerns were also raised in submission No 39 from Dr Erik Leipoldt, received November 14 2003, pp3-4. 516 Section 58, Guardianship and Administration Act 1986 (Vic).

290 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT “The Public Trustee’s experience and expertise in relation to administration and accounts matters together with its broad and comprehensive experience in financial management on behalf of others, places it in a particularly good position to exercise this function…

At present, the GAB members (and in future SAT) do not have any special expertise of an accounting nature that place them in a particularly advantageous position to exercise this account-passing function. GAB is largely reliant on the Public Trustee and the Estate Management team for the advice it gets.

The division of this accounting function from the decision-making function of SAT under the GA Act in this proposed amended form, in this context makes particular sense… It is also consistent with the Machinery of Government Taskforce proposal endorsed in June 2001 by Cabinet, which indicated that efficiencies could be achieved by transferring the Estates Management function of the GAB into the Public Trust Office.

The important issue always has been that SAT, once these changes were effected, should maintain a supervisory role in respect of accounts ... This is achieved by the proposal in clause 439 of the Conferral Bill that any person aggrieved by the failure of the Public Trustee to pass accounts may seek review in SAT. This means that, in the ordinary case, the question of the passing of accounts will be agreed by the Public Trustee with the private administrator. If the Public Trustee believes that there is any reason, for example by reason of unlawful or fraudulent conduct, or incompetence on the part of the private administrator, not to pass accounts, then the Public Trustee will refuse to do so. It would then be necessary for the private administrator to apply to SAT for a review of that decision. SAT would then be in a position of adjudging what is fair and reasonable in each case and to provide guidelines to the Public Trustee on what rules should be applied in the case of uncertainty. In this way, the present supervisory function of the GAB would be continued by SAT.517

14.93 The Committee notes that Ms Eckert makes the point that the SAT will have an ongoing supervisory role of the examination of accounts through its review role. The

517 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004, pp2-4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 291 Legislation Committee TWENTY-FOURTH REPORT Explanatory Memorandum to the Conferral Bill indicates that this process was inserted by an amendment in the Legislative Assembly.518

14.94 The Committee is concerned that the proposed amendment creates a situation where the Public Trustee will be both:

• the potential alternate administrator and the administrator of last resort; and

• the body in charge of examining the accounts of other administrators.

14.95 The Committee considers that there would appear to be a conflict of interest where the Public Trustee assumes a regulatory role with respect to alternate administrators. The Committee draws this matter to the attention of the Government via this report to the Legislative Council, and makes the following recommendation:

Recommendation 41: The Committee recommends that the Government undertake a re-examination of the structure of the Public Trustee’s supervision of alternate administrators.

Setting Aside Transactions

14.96 Section 82 of the Guardianship and Administration Act 1990 currently enables an administrator to apply to the Supreme Court (rather than the GAB) to set aside transactions entered into by a person subject to an administration order within the two months before the order was made.

14.97 Clause 440 of the Conferral Bill amends section 82 to provide that the application is to be made to the SAT and not the Supreme Court. The Chief Justice submitted that it is not appropriate to remove this jurisdiction from the Supreme Court.519

14.98 In relation to clause 440, Ms Eckert advised that:

518 Explanatory Memorandum, State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003, p97. 519 Submission No 42 from the Honourable David K Malcolm AC CitWA, Chief Justice of Western Australia, November 14 2003, p3.

292 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT “One of the main reasons why it is proposed to amend section 82 to give SAT this power, is that it will be much more convenient for people affected by a property transaction to make their application to SAT, rather than to the Supreme Court. If the powers in section 82 remain with the Supreme Court, an application would need to be made to SAT for some things and the Court for others. This could create confusion. The guardianship jurisdiction in SAT will be fee free. In fact, the cost of bringing an application to SAT will be substantially cheaper and more straight forward than if the application had to be bought in the Supreme Court. The transfer of this function to SAT is consistent with SAT’s other jurisdictions and powers. It is particularly appropriate as SAT will have judicial leadership, and an appropriately qualified person will sit to exercise the tribunal’s jurisdiction under section 82 of the GA Act. A person will of course, retain their right to appeal SAT’s decision to the Supreme Court under Part 3 Division 3 of the GA Act.”520

Supervision by the Supreme Court

14.99 The Chief Justice submitted that he was concerned that, as a general matter, the absorption of the GAB into the SAT so that appeals from the GAB will be dealt with by the SAT will deprive the Supreme Court of direct supervision of the GAB in the exercise of part of the Supreme Court’s inherent jurisdiction.521

14.100 The Committee’s Recommendation 28 addresses the concerns of the Chief Justice’s by inserting a new clause 416 which preserves the inherent jurisdiction of the Court. Furthermore, s 21 of the Guardianship and Administration Act 1990, as amended by the Conferral Bill, will retain a right of appeal to the Supreme Court from a determination of the SAT on the grounds that:

• SAT made an error of law or fact, or of both law and fact; or

• SAT acted without or in excess of jurisdiction; or

• SAT did both of those things; or

• there is some other reason that is sufficient to justify a review of the determination.

520 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 5 2004, p4. 521 Submission No 42 from Hon David K Malcolm AC CitWA, Chief Justice of Western Australia, November 14 2003, p3.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 293 Legislation Committee TWENTY-FOURTH REPORT Exclusion of Public Servants

14.101 The Committee received submissions expressing concern at the exclusion of public servants from membership of SAT with respect to GAB matters.522 The concern was that the relevant experts required for hearings before the GAB, such as geriatricians, psychologists and doctors, are not forthcoming from the private sector. Consequently, the proposal to exclude public servants from membership of the SAT effectively bars those persons, who are forthcoming and have the relevant expertise, from membership of the SAT.

14.102 The Committee canvassed this issue in CHAPTER 7.

Review

14.103 The GAB submitted that if its jurisdiction is to be administered by the SAT it will be important to monitor the effectiveness of the legislation to safeguard against unforeseen consequences of the amalgamation as it affects people with a disability.523 The GAB submitted that the review recommended by Professor D’Arcy Holman in relation to the MHRB applies equally to the GAB and suggested that there should be a review in three years in similar terms to the current section 122 of the Guardianship and Administration Act 1990.

14.104 With respect to the reference to the review by Professor Holman, the Committee notes that in July 2002, the Minister for Health and the Attorney General commissioned Professor Holman to conduct a review of the operations and effectiveness of the Mental Health Act (1996) and the Criminal Law (Mentally Impaired Defendants) Act (1996) and make recommendations as to alterations in the legislation. The review of the Mental Health Act (1996) included the following recommendation:

Before the third anniversary of the commencement of the jurisdiction of the SAT over mental health tribunal matters, an independent review should be undertaken with terms of reference:

to consider the effectiveness and efficiency of the SAT in performing the functions previously undertaken by the MHRB and in its dealings with mental health matters generally;

to consider if the transfer of the jurisdiction for mental health matters to the SAT has resulted in any unforeseen detriment to the rights and welfare of people with mental illness; and

522 Reverend Canon Leslie Patrick Goode, Transcript of Evidence, November 11 2003, pp7-8; Submission No 10 from the Reverend Canon Leslie Patrick Goode, November 11 2003, p3 and Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p11. 523 Submission No 40 from Members of the Guardianship and Administration Board, received November 14 2003, p8.

294 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 14: Proposed Guardianship and Administration Jurisdiction of the SAT to recommend, following from these considerations, any necessary amendments to the WA Act and the SAT legislation.524

14.105 The Committee understands that the GAB has requested that a similar review take place in relation to their jurisdiction.

14.106 The Committee has recommended (Recommendation 7) that a parliamentary inquiry be conducted into the jurisdiction and operation of the proposed SAT after it has been in operation for two years.

524 The Way Forward: Recommendations of the Review of the Mental Health Act 1996, Perth December 12 2003, p24. Further details in relation to this review can be obtained at http://www.health.wa.gov.au/mhareview/reports/index.cfm, (current at October 7 2004).

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 295

CHAPTER 15 THE PROPOSED MENTAL HEALTH JURISDICTION OF THE SAT

THE ABOLITION OF THE MHRB

15.1 The WACARTT Report recommended that the existing MHRB (and GAB) be co- located with the SAT, with the President or a Deputy President of SAT chairing each of these Boards (which would also comprise SAT members as the members of these Boards).525

15.2 Division 83 of Part 2 of the Conferral Bill, however, amends the Mental Health Act 1996 to propose, amongst other things, the abolition of the MHRB and the transferral of its functions to the SAT.

15.3 In explaining the Government’s policy decision to amalgamate the MHRB into SAT instead of co-locating the two bodies, Ms Eckert stated that:

“Whilst the [WACARTT] Report recommends co-location and alignment of operations, the Taskforce had in mind something perhaps stronger than co-location in its simple sense. Rather, the Taskforce intended a total synthesis of the procedural aspects of the jurisdictions whilst leaving intact the substantive provisions and underlying objectives of the [Mental Health Act 1996]. The Bills achieve that goal: the structure of SAT is such that it will be able to accommodate the special needs of the mental health jurisdiction and the Conferral Bill ensures that the unique aspects of this jurisdiction are preserved and recognised as fully as they currently are. In fact, in my view those objectives in the [Mental Health Act 1996] are strengthened because of the total independence of SAT, including the transparency of the appointment process to membership of SAT. Ultimately, ‘co location’ would have resulted in a separation of the Board from SAT in name only.”526

The Role of the MHRB

15.4 The MHRB is established under the Mental Health Act 1996 to review the status of people who have been made involuntary patients.

525 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australian Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, p80. 526 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p7.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 297 Legislation Committee TWENTY-FOURTH REPORT 15.5 Under s 43 of the Mental Health Act 1996 a psychiatrist may, in certain circumstances, order in writing that a person should be made an involuntary patient and either detained in an authorised hospital or placed on a community treatment order. All paperwork relating to an involuntary patient is forwarded to the MHRB.

15.6 An order for the detention of an involuntary patient in an authorised hospital may initially be for a period of no longer than 28 days.527 Within the 28 day period of the initial order the patient must be examined by a psychiatrist and a further detention order for a period of no more than six months may be made.528

15.7 Under s 138 of the Mental Health Act 1996 the MHRB is to undertake a review of an initial involuntary patient order within eight weeks of that order. Further, periodic reviews, no later than six months apart, are to be undertaken of an involuntary patient’s status by the MHRB.529 These reviews happen as a matter of course at the initiation of the Registrar of the MHRB, whether or not a patient wishes to contest their involuntary status.

15.8 Pursuant to s 137 of the Mental Health Act 1996, the MHRB is to consider the following matters when reviewing an involuntary patient:

“In making a determination upon a review, the Board is to have regard primarily to the psychiatric condition of the person concerned and is to consider the medical and psychiatric history and the social circumstances of the person.”

15.9 Appeals from decisions of the MHRB are currently determined by the Supreme Court.530

15.10 The Committee understands that currently about 1,500 persons are subject to involuntary patient orders each year.531 Since its establishment in 1997 the MHRB has completed approximately 6,000 reviews of civil commitment throughout Western Australia.532 As the following table indicates, the vast bulk of involuntary patients are not represented in hearings before the MHRB:

527 Section 48, Mental Health Act 1996. 528 Ibid, s 49. 529 Ibid, s 139. 530 Ibid, s 149. 531 Dr John Penman, Chairman, and Dr Mark Rooney, General Councillor, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, p3. 532 Dr Neville Barber, President, Mental Health Review Board, Transcript of Evidence, March 23 2004, p2.

298 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT Table 15.1 Persons Represented or Assisted Before the MHRB533

2000-01 2001-02 2002-03

Reviews by MHRB 910 958 1059

Represented by 129 83 (8.7%) 103 (9.7%) Mental Health Law Centre

Assisted by Council 0 44 (4.5%) 78 (7.3%) of Official Visitors

Percentage of 14.2% 13.2% 17% Reviews Where Person is Represented or Assisted

The Proposed SAT’s Mental Health Jurisdiction

15.11 Although certain aspects of its mental health jurisdiction will fall within its review jurisdiction, it is noted that involuntary patient status reviews will form part of the proposed SAT’s original jurisdiction. The Committee understands that the SAT will therefore be assessing a patient’s status as at the date of its review, and will not be deciding on the validity of the treating psychiatrist’s initial order.534

15.12 The Committee was advised that the current broad appeal rights to the Supreme Court under the Mental Health Act 1996 (currently from the MHRB to the Supreme Court) will be unaffected by any restrictions on rights of appeal from the SAT under the SAT Bill.535

15.13 The Committee received submissions both for and against the inclusion of the mental health jurisdiction within the proposed SAT.

15.14 Those in favour of the abolition of the MHRB viewed the proposed SAT as a far more independent, accountable, body than the current MHRB. The apparently formal,

533 Submission No 46 from Council of Official Visitors, December 5 2003, p2. 534 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p2. 535 Ibid, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 299 Legislation Committee TWENTY-FOURTH REPORT legalistic, nature of the proposed SAT was seen by some as an advantage and a possible vehicle for reform in the mental health area.

15.15 Similar arguments were raised in submissions against the abolition of the proposed MHRB to those raised in relation to the proposed abolition of the GAB (see CHAPTER 14). Additionally, a number of practical difficulties were identified with the proposed procedure for referral of matters to the SAT and the SAT’s ability to assume the MHRB’s administrative responsibilities.

SUBMISSIONS IN FAVOUR OF THE PROPOSED SAT’S MENTAL HEALTH JURISDICTION

15.16 The Mental Health Law Centre expressed the view that the proposed SAT will significantly improve upon the MHRB in terms of both independence and natural justice.536

15.17 The Community Legal Centres Association (Western Australia) Incorporated was also supportive of the proposed SAT’s mental health jurisdiction, anticipating that the SAT will provide natural justice and procedural fairness as well as an “appropriately ‘friendly’ legal forum” for mental health consumers.537

15.18 The arguments in favour of the absorption of the MHRB into the proposed SAT are conveniently summarised in the following submission of the Government:

“There are many positives under the SAT proposal which will assist to further the interests and rights of the mentally ill without constituting contentious reform; they include: the requirement for written decisions to be given and published (subject to confidentiality restrictions in the [Mental Health Act 1996]) so that there will be a developed body of law in the mental health area, accessible by all people, which is sadly lacking in this State at this time; there will be consistent and improved decision making in this area; the availability of decisions will assist patients and those concerned in their welfare to ensure that a patient’s rights are being respected; SAT will issue practice directions and there will be rules which will assist, not only patients, but their families to bring matters before SAT. …Further, the proposal of absorption of the [MHRB’s] functions in to SAT will increase not only the perception but the reality of the review body’s independence from the psychiatric decision makers, thereby ensuring

536 Letter from Ms Paula Parentich, Coordinator/Principal Solicitor, Mental Health Law Centre, April 1 2004, p2. 537 Submission No 34 from Community Legal Centres Association (Western Australia) Incorporated, November 11 2003, p1.

300 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT a fundamental right of the mentally ill to have access to truly independent review of their involuntary status.”538

SUBMISSIONS RAISING ISSUES OF CONCERN WITH THE PROPOSED SAT’S MENTAL HEALTH JURISDICTION

15.19 The Royal Australian and New Zealand College of Psychiatrists advised that its preference was for the MHRB to be maintained in its present format and not to be incorporated into the proposed SAT model.539

15.20 Many of the objections raised in submissions to the conferral of a mental health jurisdiction on the proposed SAT relate to anticipated practical, administrative, problems associated with the nature of the clients in such a jurisdiction.

Practical Issues Associated with the Transfer of the Functions of the MHRB to the Proposed SAT

15.21 The main practical issues associated with the proposed SAT assuming responsibility for mental health appeals are:

a) the initiation of involuntary patient status reviews; and

b) the maintenance of a therapeutic environment in a potentially more legalistic setting for hearings;

c) the accessibility and security of SAT hearings; and

d) the confidentiality of SAT’s mental health files; and

e) the role of the Chief Psychiatrist.

The Scheduling of Involuntary Patient Status Reviews

15.22 It was stressed to the Committee that approximately 80 per cent of the reviews conducted by the MHRB are initiated not by an application or a request, but simply as a mandatory administrative requirement. It was submitted that this fact alone distinguishes the jurisdiction of the MHRB from all of the other jurisdictions that are proposed to be conferred on the SAT.540

15.23 A key role of the Registrar of the MHRB is to maintain all relevant information concerning involuntary orders and to schedule mandatory reviews of involuntary

538 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p4. 539 Letter from Dr John Penman, Chairman, Western Australian Branch of the Royal Australian and New Zealand College of Psychiatrists, May 25 2004, p1. 540 Dr Neville Barber, President, Mental Health Review Board, Transcript of Evidence, March 23 2004, p2. G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 301 Legislation Committee TWENTY-FOURTH REPORT orders. It appears that under the Conferral Bill the responsibility for initiating such mandatory reviews is proposed to fall upon the individual psychiatrists that issue the original involuntary patient orders.

15.24 The concerns of the Western Australian Branch of the Royal Australian and New Zealand College of Psychiatrists with respect to this proposal were expressed to the Committee in the following terms by Dr John Penman, the Chairman of that organisation:

“I want to say something about the logistics involved in the tracking of detained patients. As you may know, the tracking is necessary to conduct the mandatory reviews by the required time; that is, within eight weeks for an initial involuntary status and then every six months. Requested reviews are also required to be attended to as quickly as possible. Changes from inpatient detention to community treatment orders also have to be tracked as a course to discharge from involuntary status to voluntary. We raise questions about how this will be done. Clause 772(1) of the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 states, in part -

“psychiatrist who made the order is to apply to the State Administrative Tribunal”

Clause 772(2) states, in part -

“psychiatrist is to ensure that the application is made in sufficient time for the review”

Both these provisions put a psychiatrist in the situation of being the one responsible for detaining a person involuntarily and ensuring that the patient’s human rights are respected by invoking a review by an independent body. This does not seem logical and is theoretically at risk of the occasional omission, inadvertent as it may be. Who will do this? Will it be the psychiatrist, as stated? If so, it will further intrude on his or her clinical work in trying to keep track of the time a patient has been in hospital. Will it be the staff at various units who will have it as their task? Clause 772(3) states that the State Administrative Tribunal is to ensure that an application is to be made in sufficient time for a review. One wonders how it will be done. Will there be staff who will be tracking that time? We came to understand that one of the reasons psychiatrists may have to do the tracking is that SAT will not do the administrative work because it is a judicial body. Why is the Mental Health Review Board as it currently stands being disbanded

302 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT and absorbed into SAT while it does its work very efficiently with a small staff?”541

15.25 Dr Neville Barber, President of the MHRB, also questioned the appropriateness of placing the responsibility for initiating patient reviews on the treating psychiatrist:

“It should be obvious to all, especially those concerned with human rights, that the right to independent statutory review is far too important a safeguard to leave to already over extended individual psychiatrists throughout the State. … [I]t should be obvious that it is extremely problematic to require the maker of an involuntary order - the psychiatrist - to be also responsible for making application for the review of that order. At the least, this artificial solution demonstrates an unavoidable perception of conflict of interest.”542

15.26 The Council of Official Visitors also expressed opposition to this proposed arrangement:

“The current sections [138 and 139 of the Mental Health Act 1996] are based on the principle that initial and periodic reviews are set as of right. They do not, and should not, need to be the subject of application, but the data base recording the details of involuntary patients should generate hearing schedules for individuals. The Council thinks that a plan for a treating psychiatrist to apply for reviews is open to distortion of the right to review and to breaching UN principles [(that is, the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, adopted by the United Nations General Assembly resolution 46/119 of December 17 1991)].”543

15.27 The Committee was advised that the Registrar of the MHRB plays a central role in ensuring that mandatory reviews of involuntary patients take place in accordance with statutory timeframes:

“Presently, it is mandatory to inform the board that a person has been made a patient; that is, that the forms have been completed to render the person an involuntary patient. The board gradually developed dedicated relationships with specific members of clerical staff at the various so-called authorised units - places where people can be treated on an involuntary basis. Even then, without those

541 Dr John Penman, Chairman, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, pp1-2. 542 Dr Neville Barber, President, Mental Health Review Board, Transcript of Evidence, March 23 2004, p3. 543 Submission No 46 from Council of Official Visitors, December 5 2003, pp4-5.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 303 Legislation Committee TWENTY-FOURTH REPORT dedicated relationships between the registrar of the board …and particular administrative staff within the various authorised units, a lot of our patients would have been lost track of. I very much doubt whether the system would have managed to provide the number of reviews that it has provided. Perhaps more compellingly, a very large proportion of psychiatrists are working in the private sector. This is something of a generalisation, but doctors do not enjoy an exemplary reputation when it comes to filling in forms and providing the requisite paperwork. Unless a well managed, systematic approach is taken to this matter, there could be administrative chaos. Most likely the patients would suffer as a result, which is implicit in what I said.”544

15.28 The Government responded to the above concerns by noting that the proposed SAT will have a registry, and will undertake all administrative functions that are necessary for the management of matters before it.545 The Government advised that even though the position of Registrar under the Mental Health Act 1996 is proposed to be abolished, all of the functions of the Registrar will continue to be carried out either by members of the SAT or the Executive Officer of the SAT.546

15.29 The Government notes that under the Conferral Bill, both the treating psychiatrist and the SAT have responsibility for ensuring that the first review and subsequent reviews of an involuntary patient’s status are held within the specified time frames.547 The Government maintains that this creates no conflict of interest for a treating psychiatrist as, under the current system, the treating psychiatrist also initiates the review process for their patient by lodging with the MHRB (via the relevant mental health service) the relevant forms advising of an involuntary patient order. The SAT will therefore, according to the Government, simply replace the MHRB as the recipient of such forms:

“It is proposed that the form on which the order is made will be the application to SAT for review of the order, in the same way that the form currently initiates the process for review by the Board. This form would therefore trigger the response by SAT to list the matter for ‘review’ within the statutory time frame. …The scheduling of the

544 Dr Mark Rooney, General Councillor, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, p4. 545 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p7. 546 Ibid. 547 Ibid, pp3 and 8.

304 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT review hearing by SAT is a matter of case management similar to the current scheduling by the Board. It will be done by SAT.”548

15.30 The Government does acknowledge, however, that some little used practical aspects of the mental health review process will change:

“SAT will not initiate a matter of its own motion as section 144 of the [Mental Health Act 1996] will be deleted. However, I understand that the [MHRB] has never used this power. Under section 142 a very wide range of people will be able to bring a matter before SAT, including if necessary, the executive officer of SAT. So, although there may appear to be a change, the effect is the same as the current process.”549

Accessibility and Security of SAT’s Hearings

15.31 It is apparent to the Committee that the premises set aside for the proposed SAT at 12 St George’s Terrace, in the Perth Central Business District, would not be appropriate for the hearing of the majority of involuntary patient reviews. This view was also reinforced by a number of witnesses.550

15.32 The Government advised the Committee that procedures similar to those which currently exist with respect to the MHRB will be maintained. That is, in the vast bulk of cases the SAT will conduct its hearings at the place where the patient is currently detained, with any issues of security being addressed by the particular institution involved.551 The premises for the proposed SAT at 12 St George’s Terrace also have facilities for the conduct of hearings by video link.552

15.33 The Committee notes, however, that not all of MHRB’s hearings are currently conducted offsite. As Dr Mark Rooney noted:

“[P]eople have the option of attending the board’s modern business premises, which are in West Perth, and/or they can attend a local community clinic; that is, those people on community treatment orders who are going about their business in the community but who, under the terms of an involuntary community treatment order, are

548 Ibid, p3. 549 Ibid, p5. 550 Dr John Penman, Chairman, and Dr Mark Rooney, General Councillor, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, p9. 551 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p7. 552 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p4.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 305 Legislation Committee TWENTY-FOURTH REPORT obliged to, for example, attend once a month for a review and, not infrequently, to accept an injection of a long-acting medication once a month.”553

Ensuring that the Therapeutic Nature of Hearings are Retained in a Potentially More Legalistic Environment

15.34 Aside from the practical problem associated with the initiation of involuntary patient reviews by the proposed SAT, the Western Australian Branch of the Royal Australian and New Zealand College of Psychiatrists also expressed concern at the possible formality and legalistic approach of the SAT, as indicated by the SAT Bill.554 It was submitted that a patient’s ongoing therapy could be hindered by a too legalistic approach to a review of the patient’s involuntary status, particularly if an adversarial approach is taken to the proceedings and the treating psychiatrist is subject to extensive cross-examination by the patient’s legal representative. Unreal expectations of release from detention or too critical a cross-examination of a psychiatrist’s treatment program were seen as posing a threat to the patient’s continuing relationship with their psychiatrist.

15.35 The Committee notes that reasons for decisions are presently only provided by the MHRB in approximately 12.5 per cent of matters (and then usually on the request of the legal representatives of a patient rather than of the patient themselves), and that the President of the MHRB is of the view that a requirement to provide such reasons under the SAT legislation may place an unexpected administrative and financial burden on the SAT.555

15.36 The Mental Health Law Centre, however, had a different view of the likely impact of the ostensibly more legalistic procedures of the proposed SAT on the mental health jurisdiction:

“[W]hilst for the current [MHRB] to become more legalistic in its approach has always been seen as a negative, there may also be some value in the SAT adopting a slightly more formal approach in comparison to the operation of the [MHRB]. Although the current [MHRB] has conducted its reviews in an informal and untechnical manner, it has often adopted procedures so “flexible” that the principles of natural justice are ignored. For instance, the [MHRB] continues to be “flexible” with mental health services by allowing

553 Dr Mark Rooney, General Councillor, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, p9. 554 Dr John Penman, Chairman, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, pp2, 4-5. 555 Letter from Dr Neville Barber, President, Mental Health Review Board, March 30 2004, pp2-3.

306 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT them to choose whether to provide patients with sufficient and timely access to their medical records before their hearings.”556

Confidentiality of Records

15.37 As was the case with many submissions relating to the GAB, concern was expressed to the Committee about the need to ensure confidentiality of involuntary patient files and records:

“Anyone could become an involuntary patient; we have no idea what will happen to us. A high-profile person would have his name, records and a detailed medical report held on SAT’s files. Therefore, it is important that access to those files is given on only a need-to-know basis. If SAT is to be set up in the way in which we understand it will be, to maintain confidentiality the files should be kept separately from the other files of the various other boards and tribunals that constitute SAT.”557

15.38 The Government advised the Committee that all records and files of the proposed SAT will be subject to strict document handling confidentiality safeguards. Furthermore, secure, discrete compactus file storage areas will be set aside on the 4th Floor of 12 St George’s Terrace specifically for mental health matters.558 The Committee was advised that mental health matters will be coded and identified separately:

“Although there are a large number of files, they are not large files: they do not constitute the patient records with the clinician’s treatment notes. The files consist of the forms and notifications required under the [Mental Health Act 1996] and can, in fact, be held electronically. The health services do not send the notifications electronically because of confidentiality concerns.

Under the proposed SAT structure mental health matters will be a significant component of the Human Rights and Equal Opportunity stream of SAT. Guardianship and equal opportunity will also be part of that stream. It is proposed that 13 staff, headed by a Team Leader will be dedicated to assisting applicants in this stream.”559

556 Letter from Ms Paula Parentich, Coordinator/Principal Solicitor, Mental Health Law Centre, April 1 2004, p4. 557 Dr John Penman, Chairman, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, p2. 558 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p7. 559 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, p6

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 307 Legislation Committee TWENTY-FOURTH REPORT 15.39 A recent case before VCAT demonstrated the potential risks involved where both confidential and public documentation are dealt with in a tribunal filing system. In Jeffery v Corrections Victoria and The Herald and Weekly Times Ltd [2004] VCAT 1211 (June 25 2004), documentation outlining the terms of a confidential settlement agreement in an Anti-discrimination List case was mistakenly placed on the file of the proceeding by registry staff. The file of the proceeding was subsequently viewed by a journalist who planned to publish the terms of the confidential settlement in the Herald Sun newspaper. Publication of the confidential information was prevented by the issuing of an injunction by the VCAT.

The Role of the Chief Psychiatrist

15.40 The Conferral Bill proposes several changes to the role of Chief Psychiatrist, including conferring on the position a number of administrative functions currently undertaken by the MHRB (such as the recording of involuntary patients and ensuring that reviews are conducted in a timely manner). There was some concern that the Chief Psychiatrist’s proposed administrative functions would conflict with the position’s role as the regulator and supervisor of the treatment of mental health patients in Western Australia:

“The role that has been proposed for the Chief Psychiatrist is, again, essentially an administrative role, which is not consistent with his current role, would distract him from the work that he currently does and is qualitatively different from the work he currently does. It smacks of an ad hoc solution. There is no advantage to this proposal that I can think of. You would need to increase his staff to perform an administrative function, which I believe should be performed in a dispassionate way in another place. It could also undermine his standing as a person who is disinterested in these processes.”560

15.41 The Council of Official Visitors was similarly concerned that the independent monitoring role of the Chief Psychiatrist may be compromised by aspects of the Conferral Bill.561 It submitted that the Chief Psychiatrist will effectively assume the responsibilities of the current Registrar under the Mental Health Act 1996:

“For instance, the MHRB now receives reports about individuals who have emergency treatment (S 115), are mechanically restrained (S 124), are secluded (S 120), and accepts referrals in some instances on those prescribed [electroconvulsive therapy] (S 106). All these

560 Dr Mark Rooney, General Councillor, Western Australian Branch, Royal Australian and New Zealand College of Psychiatrists, Transcript of Evidence, March 17 2004, p9. 561 Submission No 46 from Council of Official Visitors, December 5 2003, p4.

308 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT functions will be amended, with reports made not to the SAT, but to the Chief Psychiatrist; we presume for action as appropriate.”562

15.42 The Government denies that the independence of the Chief Psychiatrist and the monitoring role of that position will be eroded by the proposals contained in the Conferral Bill.563

REVIEW OF INVOLUNTARY PATIENT ORDERS IN OTHER AUSTRALIAN JURISDICTIONS

15.43 Dr Neville Barber, President of the MHRB, stated the following in his evidence to the Committee:

“I note that nowhere else in Australia, even in the smallest jurisdictions of the ACT and the Northern Territory, has it been proposed to amalgamate mental health review functions with other disparate review entities. Indeed, I know of no jurisdiction anywhere in the world which has included the quasi-judicial reviews of civil commitment within a generalist civil or administrative tribunal, though the Victorian Civil and Administrative Tribunal provides one example of where guardianship has been combined with those other areas. Of course that is not to say that such a combination is not possible, merely that it should be approached with great care, particularly given national and international obligations regarding persons with a mental illness.”564

15.44 The Committee notes that in both New South Wales and Victoria, administrative tribunals have been established which have not involved the abolition of those States’ mental health review boards and tribunals. Both the ADT and the VCAT, however, determine appeals from certain decisions of their State’s respective mental health review body.

15.45 Since 2003, the Appeal Panel of the ADT has had jurisdiction to hear certain external appeals from decisions of the New South Wales Mental Health Review Tribunal under the Protected Estates Act 1983 (NSW).565

15.46 Under s 120 of the Mental Health Act 1986 (Vic), a person whose interests are affected by a determination of the Victorian Mental Health Review Board may apply

562 Ibid. 563 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 28 2004, pp3-4. 564 Dr Neville Barber, President, Mental Health Review Board, Transcript of Evidence, March 23 2004, p2. 565 New South Wales Administrative Decisions Tribunal, Annual Report 2002-03, September 10 2003, at Internet site: http://www.lawlink.nsw.gov.au/adt.nsf/files/ADT_Annual_Report.pdf/$FILE/ADT_Annual_Report.pdf (current at September 13 2004), p29.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 309 Legislation Committee TWENTY-FOURTH REPORT to the VCAT for a review of the determination. Less than one per cent of the 1,843 applications made to the General List and Taxation List in 2002-03 were made pursuant to s 120 of the Mental Health Act 1986 (Vic).566

THE COMMITTEE’S OBSERVATIONS

15.47 The Committee notes that under s 150 of the Mental Health Act 1996 an appeal may be made against a decision of the MHRB to the Supreme Court on the following broad grounds:

“(a) that the Board 

(i) made an error of law or of fact, or of both law and fact;

(ii) acted without jurisdiction or in excess of its jurisdiction,

or did both of those things; or

(b) that there is any other sufficient reason for hearing an appeal against the decision or order.”

15.48 Based on the practical concerns outlined above as to the ability of the proposed SAT to effectively administer the periodic review of involuntary patient orders, the Committee is of the view that:

a) the MHRB should be retained in its existing form; and

b) initial appeals from the determinations of the MHRB should be to the proposed SAT rather than to the Supreme Court.

15.49 The Committee believes that its approach will address the concerns both of the psychiatrists, who have doubts regarding the proposed SAT’s ability to deal with the administration of involuntary patient reviews, and mental health advocacy groups, who are critical of the application of natural justice principles by the MHRB.

15.50 The Committee draws to the attention of the Legislative Council the fact that the Committee’s recommendations 43, 44 and 45 are to be read as a package.

566 Victorian Civil and Administrative Tribunal, Annual Report 2002-03, September 30 2003, p18.

310 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT

Clauses 747 to 780 inclusive

Page 337, line 9 to page 347, line 23 - To delete the clauses.

Clause 786

Page 349, lines 11 to 16 - To delete the clause.

Clauses 788 to 794 inclusive

Page 349, line 19 to page 353, line 20 - To delete the clauses.

Clause 787

Page 349, line 18 — To insert after “sections” —

“ 153, ”.

Clause 1406

Page 641, line 10 — To delete item 1 in the Table to clause 1406(2).

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 311 Legislation Committee TWENTY-FOURTH REPORT

New Clause 781

Page 347, after clause 780 — To insert the following new clause —

“

781. Part 6 Division 2A inserted

After section 148 the following Division is inserted —

“

Division 2A — Applications to State Administrative Tribunal

148A. Application for review

148B. Constitution of State Administrative Tribunal, generally

(1) Except as provided in section 148C, for the purpose of exercising jurisdiction conferred under section 148A the State Administrative Tribunal is to include —

(a) a person who is a legally qualified member of the Tribunal;

(b) a person who is a psychiatrist or, if subsection (2) allows it, a medical practitioner who is not a psychiatrist; and

312 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT

148C. Constitution of State Administrative Tribunal, psychosurgical matters

For the purpose of exercising its jurisdiction under section 148A on an application for review of a decision or order under Part 5 Division 4, the State Administrative Tribunal is to include —

(a) a person who is a legally qualified member;

(d) a person who is neither a legally qualified member nor a medical practitioner.

148D. Proceeding before State Administrative Tribunal

Schedule 2A has effect with respect to a proceeding before the State Administrative Tribunal when exercising jurisdiction conferred by section 148A.

148E. Application for determination of question of law

Where a question of law arises in proceedings before the Board, the Board may apply to the State Administrative Tribunal for determination of the question.

”.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 313 Legislation Committee TWENTY-FOURTH REPORT

New Clause 795

Page 353, after clause 794 — To insert —

“

795. Schedule 2A inserted

After Schedule 2 the following Schedule is inserted —

“

Schedule 2A — Provisions concerning a proceeding before the State Administrative Tribunal

[Section 148D]

1. Representation

(2) The State Administrative Tribunal may arrange for a person to be represented in proceedings before it if the person wishes the State Administrative Tribunal to do so.

2. Closed hearings

(1) A hearing before the State Administrative Tribunal is not open to the public unless the State Administrative Tribunal orders that it is open to the public.

(2) The State Administrative Tribunal may permit specified persons to be, or preclude specified persons (which may include witnesses) from being, present at a hearing.

314 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 15: The Proposed Mental Health Jurisdiction of the SAT

(3) In this clause a reference to a hearing includes a reference to a part of a hearing.

3. Suppression of publication

(1) A person is not to publish by any means —

(a) any account of any proceeding or part of a proceeding before the State Administrative Tribunal commenced under this Act;

(b) any evidence given before the State Administrative Tribunal in a proceeding commenced under this Act;

(c) the contents of any document produced to the State Administrative Tribunal in a proceeding commenced under this Act; or

(d) any other information relating to a proceeding before the State Administrative Tribunal commenced under this Act,

that might identify —

(e) a person who is a party to the proceeding;

(f) a person who is related to, or associated with, a party to the proceeding or is, alleged to be, in any other way concerned in the matter to which the proceeding relates; or

(g) a witness in the proceeding.

(3) Subclauses (1) and (2) do not apply to —

(a) the communication to persons concerned in proceedings in any court or tribunal of any transcript of evidence or other document for use in connection with those proceedings;

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 315 Legislation Committee TWENTY-FOURTH REPORT

(d) the publishing of a publication genuinely intended primarily for the use of members of any profession, being —

(i) a separate volume or part of a series of law reports; or

(ii) any other publication of a technical character.

(4) Without limiting subclauses (1) and (2) the State Administrative Tribunal may in any particular case order that —

(a) any evidence given before it;

(b) the contents of any document produced to it; or

must not be published, or must not be published except in the manner or to persons specified by the State Administrative Tribunal.

(5) A person who contravenes subclause (1) or (2) commits an offence and is liable to a fine of $5 000.

”.

316 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 16 MATTERS EXCLUDED FROM THE JURISDICTION OF THE PROPOSED SAT

INTRODUCTION

16.1 The Committee notes that a number of jurisdictions that are a significant aspect of the VCAT have not been included within the proposed SAT. The most notable omissions from the jurisdiction of the proposed SAT are appeals under the following Acts:

a) Residential Tenancies Act 1987;

b) Environmental Protection Act 1986; and

c) Freedom of Information Act 1992.

APPEALS UNDER THE ENVIRONMENTAL PROTECTION ACT 1986

16.2 Parts IV and V of the Environmental Protection Act 1986 provide for appeals on various matters to the Minister for the Environment.

16.3 Appeals under Part IV of the Environmental Protection Act 1986 arise from decisions of the Environmental Protection Authority when assessing proposals (EPA appeals).

16.4 Appeals under Part V of the Environmental Protection Act 1986 arise from various licensing decisions and pollution control actions of the Chief Executive Officer of the Department of Environmental Protection (departmental appeals).

Previous Proposals to Include Environmental Appeals in a General Administrative Tribunal

The Enactment of the Environmental Protection Act 1986

16.5 The Law Society of Western Australia informed the Committee of the various discussions that it had undertaken with the Department of Environmental Protection concerning the draft Environmental Protection Bill 1986. At that stage, the Law Society of Western Australia’s preferred position was that appeals under the proposed Act should be brought within the Town Planning Appeal Tribunal’s jurisdiction.567

16.6 The Law Society of Western Australia noted the Department of Environmental Protection’s position in 1986 as follows:

567 Submission No 36 from The Law Society of Western Australia, November 11 2003, p7.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 317 Legislation Committee TWENTY-FOURTH REPORT “The departmental group responded with the comment that it had been seriously contemplated that the [Environmental Protection Act 1986] appeals would go to the [Town Planning Appeal] Tribunal. However, a decision had been made to delay that move as the possibility of the Tribunal being absorbed into a broader administrative appeal system had been recommended by the Law Reform Commission and others. It was considered appropriate to delay the move of environmental appeals until a decision had been made on the new comprehensive administrative appeals body.

The departmental group considered that it made more sense for environmental appeals to be transferred directly to the new appeals body in the event of it being established, but, if a firm decision was made by government not to establish a State Administrative Tribunal, then the question of transfer of environmental appeals to the Town Planning Appeal Tribunal could be revisited.”568

The Recommendations of the WACARTT

16.7 The WACARTT recommended that appeals to Ministers from the decisions of public officials should be abolished except in relation to those decisions where high level policy or political considerations apply. The WACARTT stated:

“Over the course of many years, administrative decisions made by public officials under legislation have also been made subject to statutory ministerial appeal processes. While at the time when such rights of appeal were created it may have seemed appropriate to make the minister the venue of the appeal, the Taskforce believes that, save in those areas involving issues that require the high level policy or political judgment of a minister or the Government of the day, it is no longer appropriate to provide for appeals to ministers against decisions of public officials. …

In many instances, the decisions that are the subject of appeals to ministers involve run of the mill administrative or technical matters upon which citizens today expect review by an independent and impartial tribunal. They do not want what amounts to an internal departmental review of the decision. The provision of an appeal to the minister against a decision of a public official, who is usually an official within a department for which the minister is responsible,

568 Ibid, p8.

318 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 16: Matters Excluded from the Jurisdiction of the Proposed SAT smacks very much of an ‘appeal unto Caesar against Caesar’, that is to say, not a substantive appeal right at all.”569

16.8 The WACARTT recommended that departmental appeals (that is, appeals dealing with licensing matters and pollution control), should be transferred to SAT. However, the WACARTT recommended EPA appeals should remain under the existing system, noting that:

“So far as the question of harmony between Part V appeal decisions and Part IV environmental impact assessment conditions is concerned, the Taskforce believes that this can be achieved by providing in the Environmental Protection Act and the SAT legislation that, in determining an appeal of a Part V matter, the SAT must have due regard to the conditions which have been imposed on a proposal according to Part IV of the Act, in those cases where Part IV has been applied (which is not all cases by any means).”570

16.9 The Committee was advised that the State Government did not adopt the recommendation of WACARTT with respect to departmental appeals for the following reason:

“Subsequent to the [WACARTT] Report the Government is of the view that splitting the Part V (licensing) appeals from the Part IV (assessment) appeals would be counter-productive. Rather, the Government is of the view that it is more logical and desirable, and consistent with the objectives of the “Review of the Project Development Approvals System” (Keating Review) recommendations to leave the appeal situation as it currently is. The Environmental Appeals Convenor’s office remains the most appropriate body to conduct the appeals, so as to avoid duplication and maintain integration and coordination throughout the environment process.”571

Submissions in Support of the Proposed SAT Determining Appeals under the Environmental Protection Act 1986

16.10 The Urban Development Institute of Australia (Western Australia Division Incorporated) expressed disappointment that an opportunity for genuine reform of

569 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australian Civil and Administrative Review Tribunal: Taskforce Report on the Establishment of the State Administrative Tribunal, Government of Western Australia, Perth, May 2002, p106. 570 Ibid, p111. 571 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, April 2 2004, p8.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 319 Legislation Committee TWENTY-FOURTH REPORT environmental processes has apparently been wasted in the SAT legislation.572 It argued in its submission that:

“The reasoning behind the retention of [the] purely ministerial appeal option for environmental impact assessment matters remains unclear and, we believe it is inherently flawed as the Minister who determines the appeals is the minister responsible for the Department primarily charged with the work of the Environmental [P]rotection Authority and the environmental assessment process.”573

16.11 The Urban Development Institute of Australia (Western Australia Division Incorporated) suggested that a ministerial appeals system could remain in place for environmental matters, but that the proposed SAT should have a role in the process, either with an appeal being created from the SAT to the Minister for the Environment or an appeal to the SAT lying from the Minister’s decision.574 It was submitted that an appeal from the Minister for the Environment to the SAT was “…preferable from a consumer perspective.”575

16.12 The Conservation Council of Western Australia Inc stated in its submission that the proposed SAT, rather than the Minister for the Environment is the most appropriate body to hear and determine departmental appeals.576 The Conservation Council noted that the absence of departmental appeals in the proposed SAT’s jurisdiction was inconsistent with the SAT’s role in hearing and determining other types of environmental appeals, such as appeals in relation to:577

• subdivision decisions, development decisions and heritage decisions (which are presently dealt with by the Town Planning Appeal Tribunal);

• certain licensing decisions of the Department of Fisheries (which are presently dealt with by the Fisheries Objections Tribunal);

• land use decisions that affect aboriginal heritage (which are presently made to the Local Court);

• soil conservation notices issued under the Soil and Land Conservation Act 1945 (which are presently dealt with by the Minister for Agriculture);

572 Submission No 35 from Urban Development Institute of Australia (Western Australia Division Incorporated), November 11 2003, pp1-2. 573 Ibid, p2. 574 Ibid, pp2-3. 575 Ibid, p3. 576 Submission No 41 from Conservation Council of Western Australia Inc, November 14 2003, p2. 577 Ibid.

320 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 16: Matters Excluded from the Jurisdiction of the Proposed SAT • pearling licences (which are presently dealt with by the Minister for Fisheries); and

• water licences (which are presently dealt with by the water licensing tribunal).

16.13 The EDO also expressed the view that the ‘one-stop-shop’ rationale for the proposed SAT would be undermined by such a significant exception to the SAT’s broad jurisdiction as environmental protection appeals.578

16.14 The Conservation Council of Western Australia Inc indicated its support for the WACARTT recommendation that EPA appeals should continue to be determined by the Minister for the Environment, stating:

“We agree that it is not appropriate that Part IV appeals be referred to the SAT at this stage. This is because the current system relating to such Ministerial appeals has the requisite degree of informality, flexibility and cost effectiveness which enables many people to access the appeals system and therefore enhances the environmental impact assessment process. It would therefore be unwise to disrupt this system until the SAT shows itself to be a similarly informal, flexible and cost effective system.”579

16.15 The Law Society of Western Australia submitted that the existing Environmental Protection Act 1986 ministerial appeal system “…is not supportable either in principle or for any practical reason.”580 The Law Society of Western Australia went on to note that:

“The system is inherently flawed because the Minister who determines appeals is the Minister responsible for the Department primarily charged with supporting the work of the Environmental Protection Authority in the environmental assessment process. The same Department has direct responsibility for licences under Part V of the [Environmental Protection Act 1986]. Licence appeals are determined by the same Minister. The administrative arrangements separating the staff of the EPA and the Department of the Environment do not address this flaw.”581

578 Submission No 38 from Environmental Defender’s Office WA (Inc), November 14 2003, p1. 579 Submission No 41 from Conservation Council of Western Australia Inc, November 14 2003, pp2-3. 580 Submission No 36 from The Law Society of Western Australia, November 11 2003, p6. 581 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 321 Legislation Committee TWENTY-FOURTH REPORT 16.16 It was submitted to the Committee that some of the flaws in the current ministerial appeals process under the Environmental Protection Act 1986 include that:582

• the parties do not hear what is said by others to the Minister, Appeals Convenor or Appeal Committee;

• reasoned decisions are not delivered;

• there is no opportunity to test evidence by cross-examination; and

• appeals may take too long to be determined.

16.17 The Law Society of Western Australia submitted that the current Town Planning Appeal Tribunal processes for dealing with planning appeals should be used as a model for establishing a system of environmental appeals to the proposed SAT:

“[I]t is not considered appropriate that Western Australia be the only state in Australia that continues to allow ministerial appeals in the environmental jurisdiction. There can be little doubt, in the Society’s view, that a more transparent and accountable system of the kind operating in the planning jurisdiction would increase public trust in the environmental system.”583

THE COMMITTEE’S OBSERVATIONS

16.18 There are conflicting views within the Committee as to the suitability of the proposed SAT for deciding matters which are presently determined by the Minister for the Environment under the Environmental Protection Act 1986.

16.19 The Committee notes that there are a number of departmental appeals under the Environmental Protection Act 1986 that are possibly amenable to appeal to the proposed SAT (such as certain licensing matters), but that, in the absence of an existing independent tribunal process for these appeals to incorporate within the SAT, these appeals have been left with the Minister.

16.20 Given the policy, rather than factual or strictly environmental, nature of the issues determined by the Minister, some members of the Committee were of the view it is essential that the Minister retain the power to make the final decision in such matters. The Committee discussed the possibility of giving SAT a role as a recommendatory body to the Minister, but it was acknowledged that such a role would not fit comfortably within the scheme of the proposed SAT as a decision-making body.

582 Ibid, p7. 583 Ibid.

322 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 16: Matters Excluded from the Jurisdiction of the Proposed SAT 16.21 Hons Jon Ford, Kate Doust, Peter Foss and Bill Stretch MLCs are in favour of retaining the current ministerial appeals system for most environmental matters.

16.22 Hon Giz Watson MLC expressed support for the view that the proposed SAT, as an independent tribunal, would provide a more appropriate appeal body in environmental matters than the Minister for the Environment.

Recommendation 46: A minority of the Committee (Hon Giz Watson MLC) recommends that the proposed State Administrative Tribunal should determine appeals under the Environmental Protection Act 1986.

16.23 In support of this minority recommendation, Hon Giz Watson MLC submits that:

• The Committee heard submissions that expressed broad support for this recommendation. It is interesting to note that the following diverse range of submitters support this minority recommendation: the Urban Development Institute of Australia (Western Australian Division Incorporated), the Conservation Council of Western Australia, the EDO and the Law Society of Western Australia. This is an indication that allowing the SAT to determine appeals under the Environmental Protection Act 1986 is seen as procedurally fairer and more consistent by parties that are often adversaries in environmental planning and assessment decisions.

• It will provide a more open and accountable process consistent with the approach of other Ministers and Departments. This recommendation would ensure that the parties would hear what others say in the appeal process, reasons for decisions would be required and cross-examination of evidence could occur. This would increase accountability and transparency.

• Hon Giz Watson MLC does not accept the view of the majority of the Committee set out at paragraph 16.20 regarding the desirability of ministerial appeals in environmental matters. In her view, the Minister for the Environment is no different from any other Minister in making decisions based on policy, rather than factual or strictly portfolio based determinations.

16.24 Hon Giz Watson MLC further notes that Western Australia now is at odds with all other jurisdictions in Australia by continuing to allow ministerial appeals in the environmental jurisdiction. There has been a long-standing intention by the Law Reform Commission and others to absorb the Environmental Protection Act 1986 into a broader administrative appeal system.

16.25 Hon Giz Watson MLC views the SAT legislation as a lost opportunity to implement that Law Reform Commission’s recommendation.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 323 Legislation Committee TWENTY-FOURTH REPORT

APPEALS UNDER THE FREEDOM OF INFORMATION ACT 1992

The Determination of Freedom of Information Appeals in Victoria and New South Wales

16.26 In its 1999 Review of the Criminal and Civil Justice System, the Law Reform Commission of Western Australia recommended the inclusion of a role reviewing decisions made under the Freedom of Information Act 1992 within the jurisdiction of any new Western Australian administrative tribunal.584

16.27 Each year the VCAT deals with approximately 200 freedom of information applications.585 In 2002-03, the VCAT disposed of 90 per cent of the freedom of information cases lodged with it within 36 weeks.586

16.28 The ADT receives approximately 50 applications each year for the review of determinations made by New South Wales State Government agencies under the Freedom of Information Act 1989 (NSW).587 The ADT’s Annual Report 2002-2003 notes that:

“All [freedom of information (FOI)] and Privacy Act applications are first referred to a planning meeting, a type of preliminary conference. The planning meeting process is used to seek to identify the scope of the dispute and to ascertain the extent to which the dispute remains resolvable without going to hearing. It is common for FOI matters to be substantially reduced in their scope, though most ultimately reach a hearing.”588

The Government’s Position on the Absence of Freedom of Information Matters from the Jurisdiction of the Proposed SAT

16.29 The Committee notes that the Office of the Information Commissioner was not consulted with respect to the drafting of the SAT legislation.589 The Committee understands that the Office of the Information Commissioner was, however, consulted by the WACARTT in early 2002.590 The Committee notes that the then Information Commissioner had also raised concerns over the following statement in the WACARTT report:

584 The Law Reform Commission of Western Australia, Review of the Criminal and Civil Justice System, 1999, at http://www.lrc.justice.wa.gov.au/index.htm, (current at August 24 2004), p294. 585 Victorian Civil and Administrative Tribunal, 2002-03 Annual Report, September 2003, p18. 586 Ibid. 587 Administrative Decisions Tribunal, New South Wales, Annual Report 2002-2003, September 2003, p13. 588 Ibid. 589 Letter from Ms D A Wookey, Acting Information Commissioner, August 11 2004, p1. 590 Ibid.

324 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 16: Matters Excluded from the Jurisdiction of the Proposed SAT “The Taskforce does not believe that the existing functions of the Assessor of Criminal Injuries Compensation or the Information Commissioner should be altered. However, the majority of the Taskforce is of the view that the existing right of appeal on a question of law against a decision of the Information Commissioner should no longer be to the Supreme Court, but should be directly to the SAT. One member is of the view that the nature and extent of the existing review mechanisms within the Freedom of Information Act, and the nature of the issues raised by access applications under that Act, are such that the present system of appeals to the Supreme Court on questions of law should continue.”591

16.30 The then Information Commissioner was apparently concerned that the introduction of an appeal from decisions of the Information Commissioner to the proposed SAT (instead of to the Supreme Court on a question law only) would merely introduce another, unnecessary, layer of administrative review for freedom of information matters as appeals would continue to lie, on a question of law, from the SAT to the Supreme Court.592

16.31 The Acting Information Commissioner advised the Committee that:

“…I can only surmise that this office was not consulted in respect of the proposed legislation because, if enacted, it would not directly affect the jurisdiction of the Information Commissioner or the operation of this office.

You may be aware, however, that the Attorney General has subsequently announced that it is now proposed that the adjudicative functions of the Information Commissioner will, in fact, be transferred to the SAT. In October 2003, the Attorney General announced that the Government proposes to: introduce privacy legislation and give a role to the Information Commissioner under that legislation; transfer the adjudicative functions of the Information Commissioner under the FOI Act to the SAT; and amalgamate the Office of the Information Commissioner with that of the Parliamentary Commissioner for Administrative Investigations (the Ombudsman). Those changes will, of course, require new legislation and the amendment of existing

591 Western Australian Civil and Administrative Review Tribunal Taskforce, Western Australian Civil and Administrative Review Tribunal Taskforce Report on the Establishment of the State Administrative Tribunal, Perth, May 2002, p79. 592 Letter from Ms D A Wookey, Acting Information Commissioner, August 11 2004, p2.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 325 Legislation Committee TWENTY-FOURTH REPORT legislation. As I understand it, at this stage, the required legislation has not yet been drafted.”593

16.32 The Government advised the Committee that when the VCAT and the ADT were established, the freedom of information legislation applying in those states was very different to that applying in Western Australia today under the Freedom of Information Act 1992, where the Information Commissioner has much broader powers of review and the power to making binding determinations.594

16.33 The Government has advised the Committee that it has decided not to follow the WACARTT report’s recommendation that the SAT should hear appeals from the Information Commissioner, but has instead decided to develop a proposal to rationalise the role of the Information Commissioner in conjunction with a proposal to develop privacy laws with the aim that SAT would eventually, at some future date, have a review role for all decisions relating to access to information.595

THE COMMITTEE’S OBSERVATIONS

16.34 The Committee is of the view that appeals from decisions of the Information Commissioner should go to the proposed SAT rather than the Supreme Court.

593 Ibid, p3. 594 Letter from Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, August 16 2004, p1. 595 Ibid.

326 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc CHAPTER 17 OTHER ISSUES RAISED

INTRODUCTION

17.1 This Chapter outlines a number of additional matters that were raised in evidence to the Committee. These matters involve policy decisions not within the scope of the bills and as such the Committee has not addressed them in detail. However, the Committee felt that it was necessary to present these matters in order to illustrate the width and depth of the debate on the bills, and to draw these matters to the attention of the Legislative Council.

INCORPORATED ASSOCIATIONS

17.2 Division 10 of the Conferral Bill provides for a number of appeals to be made to the proposed SAT against certain decisions of the Commissioner for Fair Trading with respect to applications for incorporation under the Associations Incorporation Act 1987.

17.3 It was submitted to the Committee that the proposed SAT should also have jurisdiction to resolve disputes within incorporated associations.596 As Mr Colin Huntly, Lecturer at Curtin University, noted:

“A lot of those organisations are charitable in nature. For instance, under common law principles, sporting groups are charities, but I do think that there is scope for the State Administrative Tribunal to play a role when those organisations become hopelessly deadlocked and the purposes for which they were formed are being thwarted. I think it is appropriate that there be an avenue that is appropriate to the needs of incorporated associations. There are over 15 000 of them. As I said, they run from the local toy library to huge organisations like HBF.”597

THE OFFICIAL VISITOR OF WESTERN AUSTRALIA’S PUBLIC UNIVERSITIES

17.4 It was submitted by Mr Huntly that the role of the Governor of Western Australia as Visitor of all of the public universities in the State should be abolished, except for purely ceremonial functions. Mr Huntly suggested that the proposed SAT should

596 Submission No 37 from Mr Colin Huntly, Lecturer, Business Law, Curtin University of Technology, November 12 2003, p3. 597 Mr Colin Huntly, Lecturer, Business Law, Curtin University of Technology, Transcript of Evidence, March 23 2004, p8.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 327 Legislation Committee TWENTY-FOURTH REPORT thereafter assume the Visitor’s dispute resolution role with respect to public universities.598

MATTERS CONTAINED IN THE CONFERRAL BILL WHICH MAY BE BEYOND THE SCOPE AND PURPOSE OF THE BILLS

17.5 An exchange took place between Committee members and Ms Judy Eckert at a hearing in March 2004. The Committee noted that a number of proposed amendments contained in the Conferral Bill related to strengthening investigative powers and the creation of new offences under various Acts and establishing professional disciplinary boards. The Committee was interested in how provisions such as cll 44 and 50 (amending the Architects Act 1921), and cl 116 (amending the Chiropractors Act 1964), related to the conferral of jurisdiction on the SAT.

17.6 After Ms Eckert discussed the merits of the proposed amendments, the Committee reiterated that it was interested in whether the amendments were actually within the scope and purpose of the Conferral Bill. The Committee noted that in a previous case some measures that had been introduced in a consequential provisions bill had been struck out in Committee of the Whole as they were not within the scope and purpose of the bill.599

17.7 The Committee suggested that Ms Eckert consider whether there was any other procedure to apply to the amendments to address possible scope and purpose issues if raised in the Committee of the Whole.600

17.8 The Legislative Council has considered legislative provisions in light of the scope and purpose of a bill on a number of occasions, the most recent being on November 18 2003 when the Chairman of Committees, Hon George Cash MLC, made a ruling in relation to the Legislative Council’s consideration of the Acts Amendment and Repeal (Courts and Legal Practice) Bill 2002. In that instance, the Chairman of Committees noted that:

“Part 6 appears to be an orphan. There is no readily apparent link between its provisions and those of the remainder of the Bill and the Legal Practice Bill itself. I cannot see a visible connection between judicial entitlements and legal practice. However, the latter expression may be construed. I have concluded that it would be unsafe to allow part 6 to remain in the present Bill without securing the agreement of the House in the form of an instruction. Accordingly,

598 Submission No 37 from Mr Colin Huntly, Lecturer, Business Law, Curtin University of Technology, November 12 2003, p5. 599 Ms Judy Eckert, Barrister, Instructing Officer for the State Administrative Tribunal Legislation, Transcript of Evidence, March 8 2004, pp27-28. 600 Ibid, p28.

328 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc TWENTY-FOURTH REPORT CHAPTER 17: Other Issues Raised I invite the minister to report progress and to take the opportunity, should the House agree, to propose an instruction that puts the issue beyond doubt.”601

ALTERNATIVES TO THE PROPOSED SAT MODEL

A Number of Subject-Based Administrative Tribunals

17.9 In a written submission to the Committee, Mr David Forrester, Barrister, suggested an alternate model to the proposed SAT. The alternate model is based on the amalgamation of existing tribunals into six subject-based groupings with appeals on questions of law from these six tribunals to the District Court of Western Australia.602

17.10 The six possible groupings of existing tribunals are: 603

• Property Services: relating to land, leases, town planning, etc;

• Building: including electrical, plumbers, painters and landscape gardeners;

• General Commercial Trades: hairdressers, security officers, taxi drivers, etc;

• Professional: medical, lawyers, finance brokers, teachers, engineers and other persons with degree qualifications;

• Personal Relationships: equal opportunity, retirement villages, etc; and

• Environmental Protection.

17.11 Mr David Forrester expanded upon his suggested tribunal model at a hearing in March 2004:

“It is flexible, and it means that each individual tribunal can deal with the issues before it in accordance with the requirements of the industry or the particular profession, or whatever it may be that is involved. It does not mean that you can impose a rigid, very restrictive process to cover all sorts of other situations as well. Therefore, from that point of view, as a means of allowing people to see that they have had justice, and that they can deal with a matter particularly in accordance with their problems and difficulties, it has far more merit. It also has the same advantage that, instead of being a

601 Chairman of Committees, Western Australia, Legislative Council, Parliamentary Debates (Hansard), November 18 2003, p13155. 602 Submission No 8 from Mr David Forrester, Barrister, November 7 2003, p10. 603 Ibid.

G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc 329 Legislation Committee TWENTY-FOURTH REPORT one-stop place, which is what the advertisement has been about, you only have six stops. You could cover that, in any event, at 12 St Georges Terrace, which has been set up with all the necessary court procedures and places and so on. You could have most of them centred in 12 St Georges Terrace; therefore, one clerk at the front of the building could give people advice about where to go. You would cover the situation, which I understand was the principal objection to the current situation, in which nobody knows where the heck to go. Now, all they need to do is to go to 12 St Georges Terrace and sign a piece of paper. If they want to go to the Building Disputes Tribunal, they must go to West Perth, but apart from that most of the tribunals would be centred in that area. I see no problem about the fact that there is no longer a one-stop shop. It is a one-stop place where you can go to find out how to start proceedings.”604

17.12 Although the Committee notes that Mr Forrester’s suggestion appears to be a sensible plan, and one which the Government should look at closely, it is outside the framework of the Committee’s current inquiry.

THE COMMITTEE’S RECOMMENDATIONS REGARDING THE PASSAGE OF THE BILLS

Recommendation 48: The Committee recommends that, subject to the amendments recommended in this report, the State Administrative Tribunal Bill 2003 be passed.

______Hon Jon Ford MLC Chairman Date: October 27 2004

604 Mr David Forrester, Barrister, Transcript of Evidence, March 17 2004, pp9-10.

330 G:\DATA\LN\lnrp\ln.sat.041027.rpf.024.xx.a.doc