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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
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