State Administrative Tribunal. Annual Report

Transcription

1 State Administrative Tribunal Annual Report

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3 The Hon. Michael Mischin MLC Attorney General Level 10, Dumas House 2 Havelock Street WEST PERTH WA 6005 Dear Attorney Annual Report - State Administrative Tribunal Pursuant to section 150(1) of the State Administrative Tribunal Act 2004, I have pleasure in submitting to you the annual report of the Tribunal. The report is for the year ending 30 June Yours sincerely The Hon Justice J Curthoys President 26 September 2014

4 CONTENTS

5 2 PRESIDENT S REPORT 4 ABOUT THE TRIBUNAL 5 ORGANISATIONAL STRUCTURE 6 YEAR AT A GLANCE 9 TRIBUNAL STREAMS 9 Commercial and Civil (CC) 11 Development and Resources (DR) 13 Human Rights (HR) 16 Vocational Regulation (VR) 17 FUTURE REFORMS AND INITIATIVES 21 ADDITIONAL INFORMATION 21 Arrangements with the Parliamentary Commissioner under Section 168 of the SAT Act 21 Arrangements with other agencies 21 Levels of compliance by decision makers 22 ADMINISTRATIVE SUMMARY 23 APPENDICES 23 Appendix 1 Legislation defining our jurisdiction 28 Appendix 2 Stream applications by Legislation 31 Appendix 3 Members activities and publications 34 Appendix 4 Judicial and full time members 35 Appendix 5 Sessional members 38 Appendix 6 New SAT Lists 38 Appendix 7 Amendments to the Members Code of Conduct Tables 6 Table 1 Overview of matters received and finalised 6 Table 2 Number of applications received by stream 6 Table 3 Our people 6 Table 4 Operating expenditure 7 Table 5 Benchmark performance indicators (in weeks) 10 Table 6 CC benchmark performance 12 Table 7 DR benchmark performance 15 Table 8 HR benchmark performance 20 Table 9 Results of 61 applications under section 435 of the Legal Profession Act 2008 (WA) 23 Table 10 List of enabling legislation 28 Table 11 Stream applications by Legislation 31 Table 12 Members Activities Table 13 Members publications 34 Table 14 Judicial and full time members 35 Table 15 Sessional members senior 37 Table 16 Sessional members ordinary 38 Table 17 SAT lists 38 Table 18 Amendments to members code of conduct Graphs 6 Graph 1 Applications received by streams 9 Graph 2 CC applications finalised by type 9 Graph 3 CC workload 11 Graph 4 DR applications finalised by type 12 Graph 5 DR workload 14 Graph 6 HR workload 16 Graph 7 VR workload 16 Graph 8 VR applications finalised by type

6 PRESIDENT S REPORT I am pleased to provide this report on the activities of the Tribunal during the year ended 30 June I took up my appointment as president in February 2014, I inherited a tribunal in excellent working order. I acknowledge the work of the previous presidents, the Hon. Justice John Chaney and the Hon. Michael Barker (Federal Court of Australia) which placed me in that fortunate position. Tribunal restructure In late May/early June, in consultation with the Deputy Presidents, I restructured the Tribunal from four streams to 15 lists (see appendix 6). Judge Parry prepared the following outline of the restructure. All enabling Acts are allocated to one of the lists. Each list is overseen by a judicial member. Although some members with specialist qualifications and experience continue to work mainly in certain areas of jurisdiction (such as guardianship and administration and planning and development), members will otherwise be available to hear and mediate matters across the Tribunal. The restructure is timely, given that the former stream structure was put in place almost a decade ago and reflected the needs and circumstances of the Tribunal at that time. From the outset, however, full-time and sessional members have, where appropriate, sat and mediated matters across the Tribunal. The work of the Tribunal has also changed, both in that the Tribunal has acquired new jurisdictions (the most significant being original building disputes in 2011) and that the demand within areas of jurisdiction has changed. The Tribunal also requires flexibility in order to be able to accommodate new jurisdictions and changes in work in existing jurisdictions. It is anticipated that the restructure will: provide greater flexibility in the listing of full-time members; better utilise the skills and capacity of the judicial members to oversee the work of the Tribunal and to conduct directions hearings; free up senior members from administrative tasks to be able to hear and mediate complex matters; and better reflect the nature of the Tribunal as a cohesive civil and administrative tribunal for the State. The new lists (and relevant List Judge) are referenced to in appendix 6 at the end this report. The restructure further enhances the notion of One SAT referred to by then President, Justice John Chaney in last year s report. Next year s report will reflect the restructure. THE NEW BUILDING It is anticipated that the Tribunal will move into its new building in June State Administrative Tribunal Western Australia Annual Report

7 PRESIDENT S REPORT I, and other members of SAT, viewed the building prior to handover for the fit out. We look forward to moving into the new accommodation. MEMBERSHIP OF THE TRIBUNAL I was appointed to the Supreme Court (WA) on 10 February 2014 and commenced as President of the Tribunal on 14 February The Hon. Justice John Chaney s 5 year appointment as the President expired on 10 February 2014 and he returned to the Supreme Court. Mr Jack Mansveld was appointed as a full time Senior Member of the Tribunal from 3 September 2013, having served as a full time Member since January Ms Lisa Eddy was appointed as a full time Member of the Tribunal also from 3 September Mr Murray Allen resigned as a full time Senior Member of the Tribunal on 5 July He was appointed a Senior Sessional Member. CODE OF CONDUCT In March I amended the Members Code of Conduct to add clauses 19(i), (j) and (k) (see appendix 7). PERFORMANCE Overall, the work of the Tribunal in has remained relatively steady. As in past years, there has been an increase in the number of lodgements of guardianship and administration applications. As a result, the proportion of applications in the guardianship and administration jurisdiction, as against total numbers of applications received by the Tribunal, increased again this year to approximately 67%. That is a trend which has been evident for some years. During the course of the reporting year it became apparent that the rounding method used for calculating benchmark performance required adjustment, as it was overstating achievement against the benchmarks. The figures for the last three years have been amended to reflect the new rounding method and they are reflected in table 5. I wish to thank all members of the Tribunal, and in particular the Deputy Presidents, for their assistance to me and their work for the Tribunal. I wish to thank Mark Street, our Executive Officer, for the fine work he does for the Tribunal. I wish to thank our staff for the energy and dedication they bring to the Tribunal. The Hon. Justice Jeremy Curthoys President State Administrative Tribunal Western Australia Annual Report State Administrative Tribunal Western Australia 3

8 ABOUT THE TRIBUNAL The State Administrative Tribunal (the Tribunal) is established under the State Administrative Tribunal Act 2004 (SAT Act). It is an independent body that makes and reviews a wide range of administrative decisions in the areas of human rights, vocational regulation, town planning, resource development and commercial and civil disputes. The Tribunal receives its power to hear matters from over 150 pieces of enabling legislation. The Tribunal s approach is informal, flexible and transparent. The Tribunal: aims to make the correct or preferable decision based on the merits of each application; is not a court and, therefore, strict rules of evidence do not apply; encourages the resolution of disputes through mediation; allows parties to be represented by a lawyer, a person with relevant experience or by themselves; holds hearings in public in most cases; and provides reasons for all decisions and publishes most decisions on its website. Vision, objectives and values The Tribunal s vision is to be one of Australasia s leading tribunals that adopts best practice and innovative technology in making fair and timely decisions for the benefit of the people of the State of Western Australia. The objectives of the Tribunal set out in Section 9 of the SAT Act are: To achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; To act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and To make appropriate use of the knowledge and experience of Tribunal members. SAT s core values are: Excellent Service; Integrity and Accountability; Equity and Fairness; Collaboration and Learning; and Professional Autonomy. Behaviours are guided by: Members and Staff Codes of Conduct; Continuing professional development; A commitment to diversity; Providing all reasonable assistance; Offering sustainable services; and A commitment to a safe workplace. 4 State Administrative Tribunal Western Australia Annual Report

9 PRESIDENT S REPORT ORGANISATIONAL STRUCTURE PRESIDENT The Hon. Justice Jeremy Curthoys DEPUTY PRESIDENT His Honour Judge David Parry DEPUTY PRESIDENT His Honour Judge Tim Sharp EXECUTIVE OFFICER Mark Street Senior Members Ordinary Members Business Services Human Rights Commercial Civil/ Development & Resources/ Vocational Regulation Community Relations Annual Report State Administrative Tribunal Western Australia 5

10 YEAR AT A GLANCE TABLE 1 Overview of matters received and finalised TABLE 3 Our people 2011/ / /14 Received 7,667 7,355 7,794 Finalised 7,240 7,536 7,543 Pending 1,512 1,212 1, Judicial members Full time members Tribunal employees Sessional members TABLE 2 Number of applications received by stream Applications received 2011/ / /14 Commercial and Civil 2,334 (30%) 1,904 (26%) 1,865 (24%) Stream Development and 511 (7%) 420 (6%) 468 (6%) Resources Stream Human Rights 4,616 (60%) 4,801 (65%) 5,237 (67%) Stream Vocational Regulation 205 (3%) 230 (3%) 221 (3%) Stream SAT (Applications 1 (-) 0 (-) 3 under the SAT Act) Tribunal 7,667 7,355 7,794 GRAPH 1 Applications received by stream TABLE 4 Operating expenditure 2011/ / /14 $ $ $ Budget 20,444,122 19,120,033 19,668,428 Actual 19,227,469 18,643,554 18,521,234 Variance 1,216, ,479 1,147,294 l Commercial and Civil 24% l Development and Resources 6% l Human Rights 67% l Vocational Regulation 3% 6 State Administrative Tribunal Western Australia Annual Report

11 YEAR AT A GLANCE Benchmark performance The Tribunal recognises that the community appreciates transparent information about our performance. For the Tribunal, the leading indicator of performance is the time it takes for parties to obtain a decision after making an application. The following table indicates the number of weeks taken to complete the specific percentage of matters, against the benchmark in each stream, in those jurisdictions in which the Tribunal most frequently makes decisions. During the course of the reporting year it became apparent that the rounding method used for calculating benchmark performance required adjustment, as it was overstating achievement against the benchmarks. The figures for this year reflect a more accurate calulation methodology. The figures for the last three years have been amended in the table below to reflect the new rounding methodology. TABLE 5 Benchmark performance indicators (in weeks) th 50th 80th 30th 50th 80th 30th 50th 80th Percentile Percentile Percentile Commercial and Civil BENCHMARK (weeks to complete) Building Commission Building Act Commercial Tenancy Dog Act Firearms Residential Parks Act Retirement Villages Review of Building Disputes Tribunal decisions ( Builders Registration benchmark category) Strata Titles Overall Performance Development and Resources BENCHMARK (weeks to complete) Aboriginal Heritage Compensation for compulsory acquisition of land Development Fisheries Land valuation Local Govt non-planning applications Local Govt notices Rating Regulation of Local Govt Councillors Subdivision Water Overall Performance WEEKS WEEKS Table continued on page 8 Annual Report State Administrative Tribunal Western Australia 7

12 Human Rights th 50th 80th 30th 50th 80th 30th 50th 80th Percentile Percentile Percentile BENCHMARK (weeks to complete) 4 n/a n/a 8 n/a n/a 8 n/a n/a 8 Equal Opportunity Guardianship and Administration Mental Health Overall Performance Vocational Regulation WEEKS BENCHMARK (weeks to complete) n/a n/a 27 n/a n/a 27 n/a n/a 27 Overall Performance Note: 1 These figures exclude the Commercial Tenancy (Retail Shops) Agreements Act 1985 section 13(7) applications. 2 Only one application was finalised under this benchmark category in It s time to finalisation was after the 80th percentile and is not reported. 3 Only two matters were finalised under this benchmark category in The 50th and 80th percentile results reference the same matter. 4 Benchmark does not apply to Equal Opportunity and Mental Health Appeal matters. 8 State Administrative Tribunal Western Australia Annual Report

13 TRIBUNAL STREAMS COMMERCIAL AND CIVIL Work of the stream The Commercial and Civil Stream (CC Stream) deals with matters that fall within both the Tribunal s original and review jurisdictions. In the original jurisdiction, most of the volume of CC matters during the reporting year arose under the Building Services (Complaint Resolution and Administration) Act 2011 and the Strata Titles Act In the review jurisdiction, most work arose under the Building Act 2011 and Dog Act Workload 1,865 CC applications were received and 1,852 applications were finalised, compared to 1,904 received and 1,967 finalised in the previous year. The reduction in applications received applied across almost all benchmark categories but in particular in relation to building disputes referred by the Building Commission. There was an increase in the number of s13 (7) Commercial Tenancy matters from 1,153 applications lodged in the previous year to 1,317 applications lodged in this reporting year, but this had little impact on the members workload (for the reasons explained in the note to Table 6 on page 10). GRAPH 3 CC workload GRAPH 2 CC applications finalised by type 2,334 2,154 1,904 1,967 1,865 1,852 l Building Commission 34% l Commercial Tenancy 8% l Residential Parks (Long Stay Tenants) 6% l Strata Titles 25% l Other* 27% *Other Does not include Commercial Tenancy (Retail Shops Agreements Act 1985 section 13 (7) applications which are purely administrative in nature and which if included would distort the representation of areas which impose most workload on the CC Stream l Applications received l Applications finalised Achievements Based on estimates provided by the former Building Disputes Tribunal it was anticipated that the Tribunal would receive approximately 575 matters each year as a result of the conferral of jurisdiction in respect of building disputes under the Building Services (Complaints Resolution and Administration) Act In the first full year after transfer of this jurisdiction the Tribunal received 563 matters which was very much inline with expectations, but in the next year, as a result of new procedures implemented by the Building Commission, lodgments fell to 339 matters and in this reporting year to 192 matters. This resulted in a reduction in sessional member utilisation Annual Report State Administrative Tribunal Western Australia 9

14 and costs for building dispute matters and some CC stream members were utilised to hear matters in the Human Rights stream which continued to experience an increase in applications under the Guardianship and Administration Act This approach was adopted for the majority of the year and was consistent with the subsequent restructure of the Tribunal outlined earlier under the President s Report. Despite its reduced resourcing the CC stream nevertheless met the Tribunal s finalisation benchmarks (Table 6) and achieved a clearance rate of 99% as evidenced in Graph 3. These results could not have been achieved without the considerable effort of all members engaged in the conduct of CC matters. This is particularly so because of the procedures now followed by the Building Commission in respect of building dispute matters, and the early conciliation of commercial tenancy matters by the office of the Small Business Commissioner. These have had the anticipated result that the Tribunal is receiving a more significant percentage of complex or intractable disputes, which consequently require more resources and time to complete. Facilitative Dispute Resolution (FDR) As in previous years the CC Stream has made good use of the directions hearing process to apply Facilitative Dispute Resolution (FDR) techniques with the result that formal mediations have not been used to the same extent as in the early years of the Tribunal. 23% of CC general matters and 25% of building matters were referred to mediation. The referral rate in respect of CC general matters was much the same as the previous year but there was a significant increase in the percentage of building disputes referred, up from 15% in the previous year. A successful resolution was achieved in 64% of CC general matters and in 65% of building disputes matters referred to mediation as compared to 76% and 88% respectively in the previous year. These variations are most likely due to the increased percentage of complex matters referred to the Tribunal. TABLE 6 CC benchmark performance * Percentage of Benchmark applications (weeks) finalised 30% % % *The overall performance of the CC Stream excludes Commercial Tenancy (Retail Shops) Agreements Act 1985 section 13 (7) applications. These commercial tenancy matters represent more than 50% of all CC applications received but are purely administrative. Inclusion of these matters in the benchmark performance would distort the result and negate the benchmarks as a useful measure of performance. Including matters resolved in directions hearings, 56% of general matters and 50% of building matters finalised during the reporting year were resolved by FDR methods as compared to 67% and 56% respectively in the previous year. The results achieved within particular areas of jurisdiction can vary significantly, but the percentage of matters resolved through FDR techniques in strata titles, commercial tenancy and local government (Building Act 2011) matters were 68%, 51% and 56% respectively. Looking forward The restructure of the Tribunal in May resulted in the abolition of the Stream system which will ensure a flexible and efficient allocation of resources across the Tribunal. One of the ongoing consequences is likely to be that the resources to conduct matters within the CC jurisdiction will not be as generous as previously was the case. This will inevitably place pressure on maintenance of current benchmarks. There will be a need to closely monitor performance so that the Tribunal s resources are optimised and performance kept at as high a level as possible. 10 State Administrative Tribunal Western Australia Annual Report

15 TRIBUNAL STREAMS DEVELOPMENT AND RESOURCES Work of the stream 72% of the work of the Development and Resources Stream (DR Stream) involves the review of decisions of state and local government authorities in relation to town planning (mainly development and subdivision, including some structure planning) applications. 53% of the development and subdivision review applications were class 1 planning applications (involving developments with a value of less than $250,000; houses with a value of less than $500,000; and subdivisions of up to three lots), with the remainder being class 2 planning applications (all other development and subdivision applications). 60% of development and subdivision review matters that were finalised involved the review of the refusal of an application by an original decision-maker, 6% were in respect of the deemed refusal of an application (that is, a failure to determine an application within a specified statutory period) and 34% involved the review of conditions imposed on approvals. 83% of development review matters that were finalised were from decisions of local governments, 11% were from decisions of Development Assessment Panels and 6% were from decisions of the Western Australian Planning Commission. The number of development review applications involving decisions of Development Assessment Panels that were finalised increased from 12 (5%) to 30 (11%) in comparison to the previous reporting year. Most parties involved in DR matters did not require or have legal professionals representing them. In 43% of class 1 planning applications, the applicant elected (in accordance with a statutory right) that no party be represented by a legal professional. Overall in the DR Stream: 39% of parties represented themselves; 61% of parties were represented by legal professionals, consultant town planners or agents such as engineers, architects, surveyors and valuers. GRAPH 4 DR applications finalised by type l Development 59% l Subdivison 18% l Land valuation 3% l Local government approvals 2% l Regulation of local government councillors 2% l Other 16% Note: *Categories which have 0% matters do not appear within DR graph Applications finalised by type. Largely because of the Tribunal s continuing success in resolving cases by Facilitative Dispute Resolution (FDR) processes, only 15% of DR applications were finalised by adjudication. In the relatively small number of cases that required adjudication, hearings continued to be conducted efficiently. 71% of final hearings were completed in one day, 19% in two days, 6% in three days, and only 4% in more than three days. In cases resolved by adjudication, the applicant was successful in 41% of matters, partly successful in 8% of matters and unsuccessful in 51% of cases. Year in review Workload The DR Stream received 468 applications and finalised 451 applications (Graph 5). This represents an 11% increase in matters received when compared with the previous year. Annual Report State Administrative Tribunal Western Australia 11

16 GRAPH 5 DR workload FDR processes in the Tribunal involve the use of directions hearings, mediations, compulsory conferences and invitations under sections 31 of the State Administrative Tribunal Act 2004 (SAT Act) to an original decision-maker to reconsider its decision. By FDR processes, Tribunal members assist the parties to create their own solutions to resolving a dispute, rather than have a win/loss decision imposed upon them. The parties also avoid the time and expense of having to participate in a final hearing or a determination on the documents l Applications received l Applications finalised Achievements The benchmark that 50% of cases are to be finalised within 20 weeks was met (19 weeks). The benchmark that 80% of cases are to be finalised within 30 weeks was exceeded by eight weeks which is an improvement of two weeks over the previous year. This result was achieved with the same member resources against the increase in workload of 11%. TABLE 7 DR benchmark performance Percentage of Benchmark applications (weeks) finalised 30% % % Facilitative Dispute Resolution (FDR) The DR Stream fully resolved 79% of applications by FDR processes and partly resolved a further 6% of applications by these means. In cases resolved by FDR, the applicant was successful in 59% of matters, partly successful in 21% of matters and unsuccessful in 20% of matters. Only 15% of DR applications required adjudication by the Tribunal. 5% of DR applications were resolved between the parties without the need for either facilitation or adjudication by the Tribunal. In matters that require adjudication by the Tribunal, FDR processes can still reduce the scope of the dispute, thereby minimising the length of hearings and cost to the parties. 70% of all DR applications finalised in were referred to mediation with 75% of mediations only requiring one or two sessions. There remains a strong emphasis on conducting planning mediations on site or at the original decision-maker s office where this is likely to assist, in resolution of the matter. In about half (49%) of mediations, at least one mediation session was held on site during the reporting year, and in 16% of mediations at least one mediation session was held at the original decision-maker s office. Invitation to original decision makers to reconsider their decision Invitations to original decision-makers to reconsider their decisions under section 31 of the SAT Act continue to be routinely made in DR proceedings, often following the provision of further information or amendments made to planning proposals through other FDR processes. Section 31 invitations generally result in the efficient resolution of review proceedings in a manner agreeable to both parties. 12 State Administrative Tribunal Western Australia Annual Report

17 Section 31 invitations were made in 48% of all DR proceedings finalised in the reporting year. In cases where the outcome of the reconsideration is known to SAT, the original decision-maker chose to affirm its original decision in only 13% of cases and made a different decision (a substituted decision, generally a conditional approval in place of a refusal) or a varied decision (generally deletion or amendment of conditions) in 87% of cases. Looking forward The workload of the DR stream remains broadly steady, with the number of applications received during the reporting year being 3% higher than the average over the previous four years. As noted in earlier annual reports, the workload of the stream is closely linked to general economic activity in the state. The work conducted by the DR stream during the reporting year is therefore likely to remain steady or to increase moderately over the next year. HUMAN RIGHTS Work of the stream The Human Rights Stream (HR Stream) of the Tribunal has, as its principal task, the determination of applications brought under the Guardianship and Administration Act 1990 (GA Act). These matters usually involve making orders appointing substitute decision makers to make decisions about health, lifestyle and financial estate matters on behalf of people who no longer have the capacity to make their own decisions or manage their own affairs. The GA Act provides a means by which protective measures may be put in place to ensure that the financial and general welfare of vulnerable persons is not jeopardised by imprudent personal decisions, or by illadvised or unscrupulous decisions of other people. In addition to its work under the GA Act, the HR Stream determines matters concerning alleged discrimination under the Equal Opportunity Act 1984 (EO Act). The HR Stream also exercises a jurisdiction to review decisions made by the Mental Health Review Board, the Gender Reassignment Board and the Chief Executive Officer of the Department for Child Protection and Family Support. Annual Report State Administrative Tribunal Western Australia 13

18 Applications under the HR Stream s jurisdiction accounted for 67% of all applications made to the Tribunal across all jurisdictions, and GA Act matters continue to account for around 99% of the work undertaken. Workload The HR Stream received 5,237 new and review matters and finalised 5,019 matters, representing a 9% and 2% increase respectively on the corresponding figures for The workload of HR Stream has more than doubled since , the first full year of the Tribunal s operations. In the GA Act jurisdiction of HR Stream, applications concerning guardianship and administration orders represented 86% of the total applications made. Original applications for guardianship and administration orders comprised 49% of total applications. Reviews of existing guardianship and administration orders comprised 37% of total applications. Under the GA Act guardianship and administration orders must be reviewed by the Tribunal at least once every five years. Reviews of this type accounted for 25% of total applications. Reviews sought by parties accounted for 12% of total applications. Applications concerning enduring powers of attorney were down slightly from 144 in to 139 this year, whilst applications concerning enduring powers of guardianship remained steady at 21. Under the GA Act, parties seeking access to documents held by the Tribunal in the course of a proceeding and persons wanting access to documents after a proceeding is complete must do so by way of an application. The number of applications determined by the Tribunal in this area was 539, an increase of 110 applications (26%) over the year. Decisions made under the GA Act by a single member are reviewable by the Full Tribunal which consists of a judicial member and two other members. 63 matters were reviewed by the Full Tribunal, slightly down from in which 65 matters were reviewed. Applications seeking a review by the Full Tribunal represented only 1% of the total applications received. GRAPH 6 HR workload 4,616 4,353 4,801 l Applications received l Applications finalised 4,917 5,237 5, Of all the GA Act matters finalised during , 80% were completed within 10 weeks of the applications having been made which was 2 weeks longer than the benchmark of 8 weeks but an improvement over and (12 weeks). There were 836 GA Act applications on hand as at 30 June 2014 which represented on average about 2 months of applications made during the year. This figure was up from the previous year when 637 applications were on hand. The main increase was in new and review matters for guardianship and administration orders. Applications made under the EO Act continued to fall, by 12% from 57 in to 50 in The median time to finalise EO matters was 14 weeks (14 weeks in ) and 80% of matters were completed within 28 weeks (21weeks in ). Applications for review under the MH Act were down from 9 in to 6 in and applications made under the CCS Act were up from 6 in to 7 in State Administrative Tribunal Western Australia Annual Report

19 TRIBUNAL STREAMS Achievements Since , the first full year of the Tribunal s operation, the number of applications in the HR jurisdiction has more than doubled from 2,441 to 5,173 for the year. As observed in previous Annual Reports, the increase in applications has been coupled with an increasing number of complex matters involving family conflict and disputes in GA Act matters. TABLE 8 HR benchmark performance Percentage of Benchmark applications (weeks) finalised 30% n/a % n/a % It was reported in the last Annual Report that the case management system in GA Act matters was under review. That review was completed during the year and further efficiencies implemented. The full time members of HR continue to be closely involved in the case management of applications to ensure that sufficient information is obtained to have the applications ready for hearing in a timely manner. It is to the credit of the HR Stream members and administrative staff that despite an ever increasing workload the Tribunal has maintained a high standard of service and improved the benchmark performance from 12 weeks in to 10 weeks for this year. Annual Report State Administrative Tribunal Western Australia 15

20 VOCATIONAL REGULATION GRAPH 7 VR workload Work of the stream The work of the Tribunal in the Vocational Regulation (VR) Stream mostly involves disciplinary action against members of regulated vocations. The Tribunal also exercises a review jurisdiction in relation to registration and licensing decisions made by vocational registration boards and other public officials responsible for licensing of particular vocations Applications for review of decisions made under the Working with Children (Criminal Record Checking) Act 2004 (WA) also fall within the VR Stream. Workload During the reporting year, the Tribunal received 221 applications in the VR Stream, down from 230 in the previous year l Applications received l Applications finalised GRAPH 8 VR applications finalised by type Appendix 2 sets out the number of applications received under each Act contained within the VR Stream. It can be seen that security agents continue to account for a significant proportion of applications. Continuing a trend evident in the preceding year, the number of applications relating to legal professionals increased from 19 in to 23 this year. The reason for that increase is not apparent. Applications by security agents were generally dealt with by members of the CC Stream. Much of the balance of the work in the VR Stream is done by judicial members of the Tribunal who are required to preside over matters involving legal professionals, and generally preside over hearings concerning health practitioners, real estate agents, settlement agents and working with children applications. The benchmark of 80% of matters being completed in 27 weeks was exceeded, with 80% of matters being completed in 26 weeks, which is a further improvement on the previous year. l Registered Builders 5% l Legal Professionals 10% l Health Practitioners 24% l Security and related activities (Control Act) 39% l Other 22% 16 State Administrative Tribunal Western Australia Annual Report

21 FUTURE REFORMS AND INITIATIVES Section 150(5) of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) authorises the President to report to the Minister about any matter connected with the exercise of the Tribunal s jurisdiction. Guardianship and Administration Act 1990 (WA) The Department of the Attorney-General is currently undertaking a review of the Guardianship and Administration Act 1990 (the GA Act) including enabling Act provisions which confer jurisdiction and powers on the Tribunal. This review is timely and welcomed by the Tribunal. The Tribunal has been invited to and has made a number of suggestions to improve the operation and effectiveness of the GA Act insofar as it confers jurisdiction and power on the Tribunal. In addition I suggest that the Government should consider the following legislative amendments. Planning and Development Act 2005 (WA) It is suggested that section 216 of the Planning and Development Act 2005 (the PD Act), which permits a responsible authority to apply to the Supreme Court (WA) for an injunction to restrain a contravention of the Act, an interim development order, a planning scheme or a condition of approval, should be amended to confer concurrent jurisdiction on the Tribunal constituted by or including a judicial member. The Tribunal has judicial members familiar with planning law who would be able to effectively exercise this jurisdiction. Responsible authorities are familiar with the Tribunal. The practice and procedure of the Tribunal, including its statutory objectives to act with as speedily as is practicable and to minimise costs to parties, would seem to make it attractive to responsible authorities seeking to enforce planning laws. The effective enforcement of planning laws is a matter of significant public interest. It is also to be noted that other Australian jurisdictions confer exclusive or concurrent civil enforcement jurisdiction on the equivalent court or tribunal to SAT: see Planning and Environment Act 1987 (Vic) section 114 (Victorian Civil and Administrative Tribunal); Land and Environment Court Act 1979 (NSW) sections 20(1), 20(2) and 71 (New South Wales Land and Environment Court); and Land Use Planning and Approvals Act 1993 (Tas) sections 64(1) and (3) (Tasmanian Resource Management and Planning Appeal Tribunal). The reason for this suggestion is that the Tribunal has been established, in part, as a specialist planning tribunal which already has jurisdiction under section 255 of PD Act, to review directions given by local governments under section 214 where development is undertaken in contravention of a planning scheme, an interim development order, a planning control area requirement or a condition of approval. The Tribunal undertakes a very similar inquiry under section 255 to the inquiry which would be undertaken in determining an application for civil enforcement under section 216. The only real difference is that section 255 applications are commenced by the recipient of a direction, whereas section 216 applications are commenced by the issuer of a direction. Annual Report State Administrative Tribunal Western Australia 17

22 It is also suggested that jurisdiction should be conferred on the Tribunal constituted by or including a judicial member to make declarations of right in relation to any right, obligation or duty imposed by or under planning, heritage and related laws. (This suggestion was made in the 2008 Annual Report). Section 91 of the SAT Act enables a judicial member to make a declaration concerning any matter in a proceeding instead of or in addition to any other order the Tribunal makes in the proceeding. However, this power is only exercisable when an enabling Act confers jurisdiction on the Tribunal. Where there is no enabling Act that confers jurisdiction on the Tribunal, citizens have no choice but to commence proceedings in the Supreme Court for a declaration. Supreme Court proceedings typically take longer and are more costly to conduct than the Tribunal proceedings. The Supreme Court is also generally not as familiar with planning, heritage and related laws and considerations as are the judicial members of the Tribunal. Heritage of Western Australia Act 1990 (WA) Similarly, it is suggested that consideration should be given to amending section 69 of the Heritage of Western Australia Act 1990 (the H Act), which enables theminister, the Heritage Council and any other person to bring proceedings for an injunction to restrain a breach of a conservation order in the Supreme Court (WA) or in the District Court (WA), to confer concurrent jurisdiction on the Tribunal constituted by or including a judicial member. It is to be noted that the Tribunal already has broad heritage compliance jurisdiction under sections 30, 60, 73(4), 73(7) and 76 of the H Act. It is also to be noted that other Australian jurisdictions confer exclusive or concurrent civil enforcement jurisdiction in planning, heritage and related matters on the equivalent court or tribunal to SAT: See Planning and Environment Act 1987 (Vic) s 114 (Victorian Civil and Administrative Tribunal); Land and Environment Court Act 1979 (NSW) sections 20(1), 20(2) and 71 (New South Wales Land and Environment Court); and Land Use Planning and Approvals Act 1993 (Tas) sections 64(1) and (3) (Tasmanian Resource Management and Planning Appeal Tribunal). Environmental Protection Act 1986 (WA) The Tribunal has been constrained in its ability to achieve the objective stated in section 9(a) of the SAT Act, to act as speedily as is practicable, by the referral of proposals, which are the subject of review proceedings, by original decision-makers to the Environmental Protection Authority (EPA) for environmental assessment under the Environmental Protection Act 1986 (WA) (the EPA Act) or the requirement of the EPA that the Tribunal itself refer proposals the subject of review applications to the EPA for environmental assessment. Although, where a proposal has been referred for environmental assessment, SAT is able to undertake mediations or compulsory conferences and to determine preliminary issues, the Tribunal is precluded by section 41 of the EPA Act from making a decision which could have the effect of causing or allowing the proposal to be implemented and it seems, therefore, from making a final decision in relation to the review, until an authority is served on it by the Minister for the Environment under section 45(7). As the Tribunal determined in Burns and Commissioner of Soil and Land Conservation [2006] WASAT 83 at [27], the word could in s 41 of the EPA Act, refers to a potential event or situation. Section 41 does not only apply to a decision which will remove the last impediment to the lawful implementation of a proposal. Section 27(3) of the SAT Act states that the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. Even if the parties were in agreement, it would not be possible for the Tribunal to list proceedings for final hearing, but limited to determining whether the application should be refused. If the correct and preferable decision is that the review should succeed, the Tribunal is bound to so determine. However, section 41 of the EPA Act precludes the Tribunal from making a decision that could have the effect of allowing a referred proposal to be implemented. The environmental assessment process in relation to referred proposals, while no doubt complex, appears to take very long. The result is that a number of applications have had to be repeatedly adjourned from directions hearing to directions hearing, awaiting the result of environmental assessment by the EPA and then any appeal to the Minister for the Environment. 18 State Administrative Tribunal Western Australia Annual Report

23 A possible solution to the problem is the New South Wales position, which was referred to in passing in Burns and Commissioner of Soil and Land Conservation at [42], under which the Land and Environment Court is authorised to determine an appeal against the decision of a council or consent authority whether or not any concurrence or approval required before the council or consent authority could determine the application has been granted. A variation on this theme would be to amend section 41 of the EPA Act to permit the Tribunal to finally determine proceedings involving a referred proposal, but to preclude the implementation of the proposal until the Minister is satisfied that there is no reason why a proposal in respect of which a statement has been published under section 45(5)(b) of the EPA Act should not be implemented. It is to be noted that section 37(1) of the SAT Act confers a right on the Attorney General, on behalf of the State, to intervene in proceedings of the Tribunal at any time and that section 37(3) confers a discretion on the Tribunal to permit any person to intervene in proceedings. Section 37 could be amended to permit the Minister for the Environment to intervene in proceedings which concern a proposal which has been referred to the EPA for environmental assessment under the EPA Act. This would enable all environmental planning issues to be determined. In land compensation proceedings under the PD Act and in land valuation proceedings under the Valuation of Land Act 1978, the President is able to constitute the Tribunal appropriately with members with the required legal and valuation qualifications and experience. It is therefore unnecessary to appoint assessors to provide the Tribunal with relevant knowledge and experience to determine land compensation proceedings. It also involves unnecessary cost to the Tribunal, because it has to pay for two valuation assessors when (at most) only one member with valuation qualifications and experience would otherwise be listed. The current provision also gives rise to potential conflict of interest issues given that assessors are appointed by parties. The restriction under s 226(2) of the LA Act to the Tribunal being constituted by a single judicial member or a single senior member (rather than to include assessors) is also problematic, because it precludes listing a member or members with specialist valuation or planning experience, which would often be very useful for the proper determination of the matter. Land Administration Act 1997 (WA) Section 226(1) of the Land Administration Act 1997 (WA) (the LA Act) states that, except as otherwise provided in that section, when the Tribunal is dealing with a claim for compensation for the compulsory acquisition of land under Part 10 of the LA Act, the Tribunal is to be constituted to include assessors nominated by the parties. Section 226(2) of the LA Act enables the claimant and the acquiring authority to avoid the need for appointment of assessors by agreeing in writing to the Tribunal being constituted solely by a judicial member or a legally qualified senior member. These provisions should be deleted, leaving the Tribunal to be constituted by the President under s 11(1) of the SAT Act (WA). (This suggestion was made in the 2008 Annual Report). The appointment of assessors by parties, at least in relation to the Tribunal s proceedings, is outdated, inappropriate and problematic. Subject to the provisions of the relevant enabling Act (see SAT Act s 5), s 11(1) of the SAT Act authorises the President to specify who is to constitute the Tribunal for any hearing. Again, the restriction is inconsistent with the constitution by the President of the Tribunal in similar land compensation proceedings under the PD Act and in land valuation proceedings under the Valuation of Land Act 1978 (WA). Annual Report State Administrative Tribunal Western Australia 19

24 Legal Profession Act 2008 (WA) Section 410 of the Legal Profession Act 2008 (WA) (the L Prof Act) allows any person who has a direct personal interest to make a complaint about a legal professional to the Legal Profession Complaints Committee (LPCC). After it has conducted an investigation of a complaint, the LPCC is authorised by section 425 of the L Prof Act to dismiss the complaint if it is satisfied that: there is no reasonable likelihood that SAT would find the lawyer guilty of either unsatisfactory professional conduct or professional misconduct; or it is in the public interest to do so. Section 435(1)(a) of the L Prof Act allows any person who is aggrieved by the LPCC s decision to dismiss a complaint to apply to SAT for a review of the decision. Section 435(2) of the L Prof Act states that if, in its reasons for decision, the LPCC specifically finds the complaint to be trivial, unreasonable, vexatious or frivolous, then the person aggrieved by the decision to dismiss the complaint cannot apply to SAT for a review of the decision without the Tribunal s leave. There is no similar right of review to the Tribunal under any current enabling Act (there was a similar right of review under the repealed Medical Practitioners Act 2008 (WA)) in relation to the dismissal of a complaint about a member of a vocation by any other vocational regulatory body. The constitution requirements for the Tribunal under section 437 of the L Prof Act mean that in these proceedings (other than in relation to an application for leave) the Tribunal must be constituted by three members, including the President or a Deputy President, a senior legally qualified member and another member. The Tribunal s experience is that applications for review under section 435 of the L Prof Act are overwhelmingly unsuccessful, although they involve significant cost to the Tribunal in listing three members including a judicial member and considerable cost, time and inconvenience to the LPCC and the legal professionals who are the subject of the summarily dismissed complaints. Costs orders are generally not made in the Tribunal s review jurisdiction, meaning that although applications under this section are overwhelmingly unsuccessful, the LPCC and the legal professional about whom the summarily dismissed complaint has been made generally have to pay their own legal costs. The following table indicates the results of the 61 applications (concerning the summary dismissal of complaints about 74 legal professionals) under section 435 of the L Prof Act that have been finalised by the Tribunal to date (one further application was not accepted). TABLE 9 Results of 61 applications under section 435 of the Legal Profession Act 2008 (WA). Result of Number Number Application (%) of (%) of Legal Applications Professionals Application withdrawn 18 (29.5%) 20 (27%) Application dismissed or leave refused 38 (62.3%) 49 (66.2%) Application wholly successful 1 (1.6%) 1 (1.4%) Application partly successful 4 (6.5%) 4 (5.4%) Total It should also be noted that, even in the handful of cases where the application has been wholly or partly successful, the Tribunal is unable under the enabling Act to resolve the complaint about the legal professional, but has power only to refer the complaint or part of the complaint that the Tribunal has determined should not have been summarily dismissed by the LPCC to the LPCC for reconsideration. The LPCC has power (if the lawyer consents) to summary conclusion of the complaint procedure under section 426 of the L Prof Act. In these circumstances, I suggest that consideration should be given to repealing section 435 of the L Prof Act. Equal Opportunity Act 1984 (WA) Section 89 of the Equal Opportunity Act 1984 (WA) (the EO Act) permits the Commissioner to dismiss a complaint. Sections 90 and 93 of the EO Act enable a complainant to require the Commissioner to refer the complaint to this Tribunal for review of that decision. Given that the Commission has thoroughly investigated the complaint as part of its statutory duty and not found a breach established, it is unnecessary to have that decision reviewed. The Tribunal s experience is that applications for review are overwhelmingly unsuccessful. In those circumstances, I suggest that consideration should be given to repealing section 90 of the EO Act and associated provisions. 20 State Administrative Tribunal Western Australia Annual Report