Review of the Queensland Civil and Administrative Tribunal Act Consultation paper

Transcription

1 Review of the Queensland Civil and Administrative Tribunal Act 2009 Consultation paper December

2 Contents 1 INTRODUCTION Background Statutory review of the Act Terms of reference Purpose of the consultation paper How to make a submission Privacy statement DO THE OBJECTS OF THE ACT REMAIN VALID? (TOR 1) ARE THE ACT S OBJECTS BEING MET? ARE AMENDMENTS TO THE ACT REQUIRED TO ENSURE IT BETTER MEETS ITS OBJECTS? (TOR 2 & 3) Independent Accessible Fair and just Economical, informal and quick Promote quality and consistency of tribunal decisions Enhance quality and consistency of administrative decisions by Government and openness and accountability of public administration SPECIFIC ISSUES (TOR 4) Constitution of the tribunal for the exercise of certain powers and jurisdiction under the QCAT Act and enabling Acts (TOR 4b) QCAT Act Enabling Acts Constitution of tribunal (TOR 4b) Specialist procedure and powers in enabling Acts (TOR 4c) Legal representation Regional service Minor civil disputes Other matters Appeals Improving QCAT s regional and rural service delivery The requirement for the President and Deputy President to be a Supreme Court judge and a District Court judge respectively Functions of President and Deputy President Role of judicial members Issues with the judicial structure Appeals in the minor civil disputes jurisdiction and the appellate jurisdiction generally The appellate jurisdiction of QCAT Issues with appeals in the minor civil disputes jurisdiction Option 1 Provide for external appeals to the courts Option 2 Restrict appeal rights by monetary value Option 3 Financial disincentives for unmeritorious minor civil disputes appeals

3 GLOSSARY OF TERMS APPENDIX APPENDIX APPENDIX APPENDIX

4 Review of the Queensland Civil and Administrative Tribunal Act Introduction 1.1 Background Consultation The Queensland Civil and Administrative Tribunal (QCAT) commenced operation on 1 December QCAT was the result of the amalgamation of 18 tribunals and 23 jurisdictions to form a single gateway for civil and administrative justice in Queensland. Over previous decades the number of ad hoc tribunals providing civil and administrative justice in Queensland had increased substantially, primarily as a function of expanding merits review rights and the desire to provide the public with a less formal, more accessible and less expensive means of redress than the traditional court. The proliferation of tribunals resulted in reforms in other Australian jurisdictions and overseas to rationalise civil and administrative justice. Generally, the primary reasons behind moves to amalgamate multiple small tribunals were to: create a single recognisable body for deciding certain civil disputes and reviewing administrative decisions improve consistency and quality of decision making improve recruitment and retention of suitably qualified tribunal members and staff improve service delivery to tribunal users, particularly in regional areas increase the independence and standing of tribunal decisions create a flexible tribunal able to accrue new jurisdictions over time. QCAT was established after a review by an Independent Panel of Experts, comprising a former Supreme Court judge, a Senior Counsel (who was appointed a Supreme Court judge during the review) and the Chairperson of the Commercial and Consumer Tribunal. The panel produced three reports for the then Government in 2008 and 2009 dealing with the scope and jurisdiction of the tribunal, the legislation for establishing the tribunal and operational implementation requirements. QCAT has broad jurisdiction, dealing with matters ranging from occupational and professional disciplinary matters, building disputes, guardianship and administration matters, merits review of administrative decisions by government agencies and statutory authorities and minor civil disputes that include residential tenancy, consumer and debt disputes. The tribunal is led by a President who is a Supreme Court judge and a Deputy President who is a District Court judge. It is comprised of senior and ordinary members and adjudicators. Magistrates are automatically members for deciding minor civil disputes. QCAT also has an internal appeal mechanism the Appeal Tribunal, which hears appeals from certain decisions of the tribunal. 4

5 The legislative scheme for QCAT is comprised of: the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) which establishes the tribunal and its general jurisdiction, provides for appointment of members and adjudicators and for its powers and procedures the Queensland Civil and Administrative Tribunal Regulation 2009 (the QCAT Regulation) the Queensland Civil and Administrative Tribunal Rules 2009 (the QCAT Rules) over 160 Acts and Regulations which confer jurisdiction on QCAT, some of which also provide for specific powers and procedures for those jurisdictions Statutory review of the Act Section 240 of the QCAT Act states: (1) The Minister must review this Act (a) within 3 years after the commencement of this section; and (b) at further intervals of 5 years. (2) The objects of the review include: (a) deciding whether the objects of the Act remain valid; and (b) deciding whether the Act is meeting its objects; and (c) deciding whether the provisions of the Act are appropriate for meeting its objects; and (d) investigating any specific issue recommended by the Minister or the President of QCAT, including whether any provision of an enabling Act affects the effective operation of the tribunal. (3) The Minister must, as soon as practicable after finishing the review under subsection (1), table a report about the outcome of the review in the Legislative Assembly. Consequently, the review is primarily focused on the adequacy of the QCAT legislation and only contemplates operational issues if those issues are nominated by the Minister or President under section 240(2)(d) as part of the terms of reference for the review. This review also occurs in the context of a tight fiscal environment. 1.3 Terms of reference The review of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) is to investigate and advise the Queensland Government on: 1. Whether any amendments should be made to the objects of the Act to enhance or clarify the role of the Queensland Civil and Administrative Tribunal (QCAT) 2. Whether the Act is meeting its objects 3. Whether any amendments to the Act are required to ensure it better meets its objects 4. Specifically, whether any legislative amendments are required to better achieve the objects of the Act in relation to the following issues: a. Appeals in the minor civil disputes jurisdiction b. Whether provisions in the Act or an enabling Act restricting who may constitute the tribunal for the exercise of specific powers are appropriate and necessary 1 For Queensland legislation see For a list of enabling legislation see 5

6 c. Whether provisions in enabling Acts setting out different powers and procedures for the exercise of QCAT s jurisdiction are appropriate and necessary d. Regional service e. Legal representation of parties f. The requirement for the President and Deputy President to be a Supreme Court Judge and a District Court Judge respectively g. The appellate jurisdiction. The review is to be conducted in consultation with major stakeholders. 1.4 Purpose of the consultation paper This paper is intended to assist stakeholders and members of the community in the process of preparing submissions in relation to the review. The list of specific issues for consideration is not exhaustive. If you think there are other issues relevant to the objects of the review that should be addressed through legislation, please include them in your submission. The issues in this paper and the discussion of possible actions or alternatives do not represent Queensland Government policy. 1.5 How to make a submission The closing date for submissions is Friday 22 February Written submissions should be sent to: Mail: Review of the Queensland Civil and Administrative Tribunal Act 2009 Strategic Policy Department of Justice and Attorney-General GPO Box 149 Brisbane QLD 4001 qcatreview2012@justice.qld.gov.au 1.6 Privacy statement Any personal information you include in your comment or submission will be collected by the Department of Justice and Attorney-General (DJAG) for the purpose of undertaking the statutory review under section 240 of the QCAT Act. DJAG may contact you for further consultation regarding the review. Submissions will be treated as public documents. This means that in all but exceptional cases, they may be published on the DJAG website, together with the name and suburb of each person making a submission. If you would like your submission, or any part of it, to be treated as confidential, please indicate this clearly. Please note however that all submissions may be subject to disclosure under the Right to Information Act 2009, and access applications for submissions, including those marked confidential, will be determined in accordance with that Act. 6

7 2 Do the objects of the Act remain valid? (TOR 1) Section 3 of the QCAT Act states: The objects of this Act are (a) to establish an independent tribunal to deal with the matters it is empowered to deal with under this Act or an enabling Act; and (b) to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick; and (c) to promote the quality and consistency of tribunal decisions; and (d) to enhance the quality and consistency of decisions made by decision-makers; and (e) to enhance the openness and accountability of public administration. Section 4 sets out the functions of the tribunal relating to the objects: To achieve the objects of this Act, the tribunal must (a) facilitate access to its services throughout Queensland; and (b) encourage the early and economical resolution of disputes before the tribunal, including, if appropriate, through alternative dispute resolution processes; and (c) ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice; and (d) ensure like cases are treated alike; and (e) ensure the tribunal is accessible and responsive to the diverse needs of persons who use the tribunal; and (f) maintain specialist knowledge, expertise and experience of members and adjudicators; and (g) ensure the appropriate use of the knowledge, expertise and experience of members and adjudicators; and (h) encourage members and adjudicators to act in a way that promotes the collegiate nature of the tribunal; and (i) maintain a cohesive organisational structure. Question 1: Are the Act s objects and functions of the tribunal relating to the objects still valid? If not, please provide your reasons. 7

8 3 Are the Act s objects being met? Are amendments to the Act required to ensure it better meets its objects? (TOR 2 & 3) 3.1 Independent This object refers to establishing a tribunal that is independent of the executive arm of government. Independence is essential for any body delivering justice and particularly a body charged with reviewing administrative decisions of the executive. There are a number of provisions of the QCAT Act that support the independence of the tribunal. These include: sections stating that the tribunal and President are not subject to direction or control by a Minister (sections 162, 172(5)) i.e. decisions of the tribunal cannot be overruled by the executive adjudicators of the tribunal are similarly protected (section 196) preservation of the status, remuneration, privileges and tenure of the President and Deputy President as judges (sections 175(4), 176(4)) provisions setting out the process for suspension, investigation and removal of adjudicators and members, excluding the President and Deputy President who may only be removed if removed as a judge (sections , ) members, adjudicators, mediators and assessors have the same protection and immunity as a Supreme Court judge (section 237) adjudicators and members, including the President and Deputy President, must be appointed for a minimum of three years with a maximum of five years (sections 175(3), 176(2), 183(2), 183(7), 198(7), 198(2), 198(5) ) the Minister must advertise for members and adjudicators and consult with the President who is responsible for developing selection criteria and overseeing the selection process, prior to selecting persons for recommendation for appointment by Governor in Council (sections 172(2)(e), 183(3). Question 2: What, if any, amendments should be made to the QCAT Act to strengthen the independence of QCAT? 3.2 Accessible Access to justice is a fundamental right in a civil, democratic society. A tribunal service is accessible if it is physically, financially and culturally available to a diverse range of people. Provisions of the QCAT legislation that could be seen as promoting accessibility are: the requirements under section 4 of the Act for the tribunal to facilitate access to its services throughout Queensland and to ensure the tribunal is accessible and responsive to the diverse needs of users. Regional service is discussed in more detail below under the fourth term of reference 8

9 the requirement for the tribunal to take reasonable steps to ensure parties understand the proceedings (section 29 QCAT Act) the requirement for the Principal Registrar to give reasonable help to parties and potential parties to understand the tribunal s practices and procedures (section 30 QCAT Act) legal representation generally only with leave of the tribunal (section 43 QCAT Act) provisions enabling remote telephone or audio-visual conferencing (section 32 QCAT Act) provisions promoting the use of interpreters and other persons to assist parties and witnesses to understand proceedings (sections 29 and 44 QCAT Act) providing a general rule that parties bear their own costs (section 100 QCAT Act). Question 3: What, if any, amendments should be made to the QCAT Act, the QCAT Regulation or the QCAT Rules to promote accessibility? 3.3 Fair and just Section 28(2) of the QCAT Act requires the tribunal to act fairly and according to the substantial merits of the case. Subsection (3) requires the tribunal to observe the rules of natural justice and places an onus on the tribunal to ensure, as far as is practicable, that all relevant material is disclosed to the tribunal so it can decide the proceeding with all the relevant facts. As mentioned above, section 29 of the QCAT Act requires the tribunal to take all reasonable steps to ensure each party understands the practices and procedures of the tribunal, the nature and legal implications of assertions made in the proceeding and any decision of the tribunal. The section also requires the tribunal to take all reasonable steps to understand the actions, views and assertions of a party or witness, having regard to the age, any disability, and the cultural, religious, or socio-economic background of the party or witness and to ensure proceedings are conducted in a way that recognises and is responsive to cultural diversity, Aboriginal tradition and Island custom and the needs of parties or witnesses who are children or who have impaired capacity or a physical disability. Section 44 of the Act allows a party or witness to use an interpreter or other person to assist in making the proceeding intelligible. Section 90 of the QCAT Act requires hearings to be in public unless an enabling Act requires it to be in private or the tribunal orders that it be in private. As outlined later in this paper, QCAT provides an accessible internal appeal mechanism. Question 4: What, if any, amendments could be made to the QCAT legislation to further promote fairness? 9

10 3.4 Economical, informal and quick QCAT is intended to provide affordable and timely dispute resolution. Section 4 of the QCAT Act requires the tribunal to: encourage the early and economical resolution of disputes, including through alternative dispute resolution ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice. Section 28(3) provides that the tribunal is not bound by the rules of evidence and may inform itself in any way it sees fit and requires the tribunal to act with as little formality and technicality and with as much speed as the requirements of the Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit. Question 5: What, if any, amendments could be made to the QCAT legislation to further promote economical, informal and quick resolution of disputes? 3.5 Promote quality and consistency of tribunal decisions The tribunal makes decisions in a broad range of matters ranging from occupational and professional disciplinary matters, building disputes, guardianship and administration matters, merits review of administrative decisions by government agencies and statutory authorities and minor civil disputes that include residential tenancy, consumer and debt disputes. A primary objective in consolidating 23 jurisdictions with the establishment of QCAT was to promote quality and consistency in decision making by the tribunal in like cases across these different content areas. Prior to its establishment, 21 different bodies made decisions in potentially similar cases. For example, administrative review was conducted by the courts, the Commercial and Consumer Tribunal, the Children Services Tribunal, various disciplinary tribunals and regulatory bodies, the Fire Appeals Panel, the Fisheries Tribunal, the Gaming Commission and the Independent Assessor under the Prostitution Act An internal appeals mechanism was recommended by the Independent Panel of Experts as it would promote consistency in procedure and quality of tribunal decision making and assist in the development of a coherent and consistent body of law. 2 Section 4 of the QCAT Act requires the tribunal to: ensure like cases are treated alike maintain specialist knowledge, expertise and experience of members and adjudicators ensure the appropriate use of the knowledge, expertise and experience of members and adjudicators. 2 Queensland Civil and Administrative Tribunal: Stage 1 report on scope and initial implementation arrangements; Tribunals Review Independent Panel of Experts; June 2008; page 88 10

11 Question 6: What, if any, amendments could be made to the QCAT legislation to further promote the quality and consistency of decisions? 3.6 Enhance quality and consistency of administrative decisions by Government and openness and accountability of public administration One of the aims in consolidating the review of administrative decisions in one body with review jurisdiction is to improve the quality and consistency of decisions by government agencies and statutory bodies and promote openness and accountability in public administration. The establishment of QCAT and the implementation by the previous government of a whole of government administrative review policy followed a number of reports since the Fitzgerald Inquiry on the need for a single merits review body to address problems arising out of multiple bodies conducting merits review. The problems identified in these reports included: inconsistency in how and whether aggrieved persons were notified of their right to seek review significant areas of decision making were not subject to external review where external merits review was available, inconsistency in the nature of the review, ranging from full merits review to appeals on a question of law only an absence of formal organisational arrangements within agencies to collate information from review processes for the purpose of improving the quality of decision making. The QCAT Act sets out a uniform process for agencies to inform people of decisions made by the agency and their right to seek review of those decisions. Question 7: What impact, if any, do you think the establishment of QCAT has had on the quality and consistency of administrative decisions by government agencies and on the openness and accountability of public administration? Question 8: What, if any, amendments could be made to the QCAT legislation that would enhance quality and consistency in administrative decision making and openness and accountability of public administration? 11

12 4 Specific issues (TOR 4) 4.1 Constitution of the tribunal for the exercise of certain powers and jurisdiction under the QCAT Act and enabling Acts (TOR 4b) QCAT Act Section 165(1) of the QCAT Act empowers the President to choose one, two or three members or an adjudicator to constitute the tribunal for a particular matter. Section 167(1) lists factors the President must consider when choosing members to constitute the tribunal for a particular matter. These factors include: the nature, importance and complexity of the matter the need for the tribunal hearing the matter to have special knowledge, expertise or experience relating to the matter any provision of the QCAT Act, an Enabling Act or the QCAT Rules that may be relevant any other matter the president considers relevant. If an enabling Act provides for the tribunal to be constituted in a particular way, section 167(4) requires the President to constitute the tribunal in that way. Various provisions in the QCAT Act restrict which type of member may exercise certain powers. For example, members and adjudicators must disclose any conflict of interest in relation to a matter (QCAT Act, section 169). Only legally qualified members can exercise certain powers or decide certain matters under the following sections: 22(8), 58(5) and 59(8) power to assess damages 37(6) deciding whether to exempt the applicant from the requirement to give a copy of the application or referral to the other parties 47(4), 48(5) power to dismiss or strike out a proceeding 54(2), 55(2), 56(2) power to make directions in relation to consolidating and separating two or more proceedings 61(5) power to order relief from procedural requirements 62(7) power to give directions necessary for the speedy and fair conduct of the proceeding 63(6) power to order a third party to produce a document or thing 64(3) power to order the amendment of an application, referral or response to an application or referral 66(4) power to make a non-publication order 86(4) power to make orders in terms of a settlement reached outside a compulsory conference or mediation 96(2) power to authorise a person to take evidence on behalf of the tribunal. There were a number of provisions in the QCAT Act requiring judicial members to make certain orders. This placed significant strain on the judicial resources of QCAT. Consequently, these provisions were amended by Part 8 of the Guardianship and Administration and Other Legislation 12

13 Amendment Act 2012 which commenced on 22 November These amendments replace the requirement for judicial members to exercise the power to give injunctive or declaratory relief and to transfer a proceeding to a court or other more appropriate forum to enable legally qualified members to make these orders. It could be argued that the distinction between legally qualified members and other members unnecessarily promotes administrative complexity and reduces flexibility given that, under sections of the QCAT Act, the President has responsibility for choosing appropriate members to constitute the tribunal for particular matters and under section 172 for ensuring members and adjudicators are adequately and appropriately trained. Question 9: Should amendments be made to the QCAT Act to remove the distinction between legally qualified members and other members? Enabling Acts Constitution of tribunal (TOR 4b) There are 53 provisions across 20 enabling Acts which direct or restrict how the President of the tribunal should constitute the tribunal for hearing and deciding matters under those Acts. Configurations for the constitution of the tribunal (prescribed by enabling Acts) can be classified as follows: Constitution of Tribunal prescribed by Enabling Acts Frequency Judicial Member 11 Judicial Member assisted by 2-3 panel assessors 3 Legally qualified member 6 Legally qualified member, a member representing lessors and a member 1 representing lessees in retail shop disputes Legally qualified member or if value or damages less that QCAT prescribed 1 amount of $25000, an adjudicator At least 1 legally qualified member and 2 members with specialist 1 knowledge, expertise or training (total of 3 members) At least 1 legally qualified member, 1 member with specialist knowledge, 4 expertise or training and another member 4 (total of 3 members) At least 1 legally qualified member and 1 member with specialist knowledge, 2 expertise or training (total of 2 members) A member with specialist knowledge, expertise or training related to the 6 subject of the review 3 tribunal members and no other restrictions on constitution 4 Tribunal or Principal Registrar may constitute tribunal 4 Aboriginal or Torres Strait Islander member, if practicable 2 Member of same gender as user 2 Requirement that Principal Registrar considers specialist or technical issues 2 when choosing assessors to assist tribunal, if necessary The restrictions or directions are generally aimed at ensuring the members deciding the matters under the enabling Act have the appropriate range of expertise and experience for that particular jurisdiction. For example, in disciplinary proceeding against a teacher, the Education (Queensland 3 However, the power to stay a decision pending an appeal to the appeal tribunal (section 145) and the jurisdiction and powers to punish for contempt of the tribunal (section 219) remain limited to judicial members of the tribunal. 4 Other member includes a member who is not a registered teacher as prescribed by the Education (Queensland College of Teachers) Act 2005, section

14 College of Teachers) Act 1995 requires the tribunal to be constituted by one legally qualified member familiar with school environments, one registered teacher member and one other member who is not a registered teacher. The number and type of member(s) required to constitute the tribunal may also reflect the gravity of the decision. For example, in proceedings to consent to sterilisation proceedings for child with impairment (Guardianship and Administration Act 2000, section 80F), the tribunal must be constituted by three members who to the extent practicable have knowledge and experience of persons with impaired capacity. The three members must include a senior member or ordinary member who is a lawyer, a member who is a paediatrician, and another member. Some specialist constitution provisions carried over from the amalgamation of former tribunals may no longer be appropriate. For example, section 102 of the Retail Shop Leases Act 1994 requires that for a retail shop lease dispute proceeding regarding an amount of $ or more, the tribunal constitution must include persons representing retail lessors and lessees, respectively. In lieu of representative members, the tribunal may appoint appropriate persons with expertise in retail shop lease matters as assessors under Chapter 2, Part 6, Division 7 of the QCAT Act to assist the tribunal. Seven enabling Acts prescribe that certain members or persons are ineligible to constitute the tribunal in particular proceedings. For example, a member is not eligible to constitute the tribunal to determine an application for review of a decision under the Adoption Act 2009 if the member has applied to be an adoptive parent or had an adverse decision regarding adoptive proceedings, such as a decision to remove the person s name from the suitable adoptive parents register (Adoption Act 2009, section 307F). It has been suggested that the President s general responsibilities (QCAT Act, sections and 172) to choose appropriate persons to constitute the tribunal for particular matters and ensure members and adjudicators are adequately and appropriately trained, may be sufficient in most cases. While some specialist provisions remain appropriate, removing unnecessary constitution provisions in enabling Acts may widen the number of members suitable to sit on particular matters and has the potential to increase the efficiency of QCAT. Question 10: Are provisions in enabling Acts requiring the tribunal to be constituted in a certain way necessary given the President s responsibilities and functions under the QCAT Act? 4.2 Specialist procedure and powers in enabling Acts (TOR 4c) While the QCAT Act sets out the standard powers and procedures for QCAT, these provisions may be overridden or varied by enabling Acts which may set out specific procedures and powers for hearing and deciding applications or referrals made under those Acts (section 6 QCAT Act). Appendix 2 lists the provisions of enabling Acts which override or vary powers and procedures in the QCAT Act. There are 209 specialist procedures or powers set out in enabling Acts, spread across 163 enabling Acts (excluding provisions related to constitution of the tribunal). Appendix 1 describes the number and types of specialist procedures and powers in enabling Acts. Specialist provisions may relate to matters such as: the constitution of the tribunal 14

15 limits on QCAT s jurisdiction stays on internal review decisions obligations on the Principal Registrar to issue notices or provide reports (e.g. notice of the proceeding, reports regarding administrator appointments or statistical information) notices to include specific content obligations on decision making bodies to notify the Principal registrar or tribunal of particular matters appointment of assessor(s) restrictions on orders that can be made by the tribunal timeframes for hearings. There are 25 enabling acts that limit the tribunal s powers and procedures. For example, section 80 of the Queensland Building Services Authority Act 1991 provides that if the tribunal becomes aware that another person should be joined as party to a major commercial building dispute (other than at pre-hearing conference under section 79), the tribunal does not have jurisdiction and must order that the proceeding be removed to court under section 94(3). Other examples of limitations to QCAT s jurisdiction include: external review appeals may only be on a question of law and by rehearing (e.g. Information Privacy Act 2009, section 132 and Right to Information Act 2009, section 119) no rights of appeal to the QCAT appeals tribunal or the Court of Appeal as generally provided in the QCAT Act Chapter 2, Part 8 and section 149 (e.g. Liquor Act 1992, section 35, Gaming Machine Act 1991, section 33) the Child Protection Act 1999, section 99I provides that if the tribunal is constituted by less than three members for a compulsory conference, the tribunal can only stay the decision if the decision maker does not oppose the stay. Other enabling Acts operate to prevent a person who is not a party to the proceeding from inspecting or copying any part of the record (for example, Adoption Act 2009, sections 307P and 307O). Specialist procedures regarding non-publication, records and registers of proceedings and private proceedings are important as they are designed to: protect the identity of children (e.g. Child Protection Act 1999, section 99J) prevent the prohibit the publication of information that reveals the identity of adults in guardianship proceedings (e.g. adult evidence, non-publication order and confidentiality orders under the Guardianship and Administration Act 2000) protect information dealing with domestic violence (Residential Tenancies and Rooming Accommodation Act 2008, section 433A) avoid disclosure of criminal intelligence (e.g. Weapons Act 1990, section 142A(2)(b) protect the privacy of a registrant (e.g. if conditions are imposed because of the registrant s physical or mental health, the tribunal must not record conditions on register (Speech Pathologists Registration Act 2001, section 177(2)-(3)). However, given that QCAT makes decisions regarding a wide range of sensitive matters where similar legislative protections are required, the adequacy of the existing QCAT Act provisions (e.g. QCAT Act, section 66 which enables the tribunal to make non-publication orders) will be considered. Enabling Act provisions that prescribe timeframes will also be considered in this review. Some existing provisions are very prescriptive. For example: 15

16 Prostitution Act the original decision maker must give information to the tribunal within ten business days, preliminary assessment by tribunal must be completed within ten business days after receiving material and the tribunal must decide matter within five days after written submissions have closed (section 64C) Racing Act the hearing must commence within 28 days after application is made (section 153) Retirement Villages Act the registrar must appoint a mediator within 14 days (section 158). The specialist procedures and powers in enabling Acts were examined in detail prior to the formation of QCAT in Three years on, the inaugural QCAT review is an appropriate time to re-examine specialist procedures and powers to determine if they are necessary. Streamlining procedures and powers in QCAT will reduce red tape an approach consistent with QCAT s objectives for an efficient, consistent, user-friendly and accessible tribunal. Question 11: In relation to enabling Acts you have experience with, are the specialist procedures or powers contained in the enabling Acts still necessary in light of the objects of the QCAT Act? 4.3 Legal representation Section 43 of the QCAT Act limits legal representation in QCAT proceedings. It provides: (1) The main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise. (2) In a proceeding, a party (a) may appear without representation; or (b) may be represented by someone else if (i) the party is a child or a person with impaired capacity; or (ii) the proceeding relates to taking disciplinary action, or reviewing a decision about taking disciplinary action, against a person; or (iii) an enabling Act that is an Act, or the rules, states the person may be represented; or (iv) the party has been given leave by the tribunal to be represented. (3) In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave (a) the party is a State agency; (b) the proceeding is likely to involve complex questions of fact or law; (c) another party to the proceeding is represented in the proceeding; (d) all of the parties have agreed to the party being represented in the proceeding. (4) A party can not be represented in a proceeding by a person (a) who, under rules made under section 224(3), is disqualified from being a representative of a party to a proceeding; or (b) who is not an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party. 16

17 (5) A person who is not an Australian legal practitioner or government legal officer and who is seeking to represent a party in a proceeding must give the tribunal a certificate of authority from the party for the representation if (a) the party is a corporation; or (b) the tribunal has asked for the certificate. (6) The tribunal may appoint a person to represent an unrepresented party. (7) In this section Australian legal practitioner see the Legal Profession Act government legal officer see the Legal Profession Act The Independent Panel of Experts recommended: As a general rule, legal representation of the parties should only occur with the leave of the tribunal. This reflects the position that the tribunal is not a court and provides flexibility for the tribunal to consider whether procedural fairness requires representation in a particular matter. 5 This approach reflects the approach taken in the Victorian Civil and Administrative Tribunal (VCAT). However, legal representation is as of right in the Commonwealth Administrative Appeals Tribunal, the Western Australian State Administrative Tribunal (WA SAT) and the ACT Civil and Administrative Tribunal (ACAT). In the smaller generalist tribunals in NSW, a party may be legally represented in the Administrative Decisions Tribunal but must first obtain leave to be represented in the Consumer, Trader and Tenancy Tribunal (NSW CTTT). The legal profession has suggested that parties in QCAT proceedings should have a right to be legally represented in most matters. It is argued that this would: increase access to justice for persons who do not have the skills to argue their cases adequately reduce delay caused by parties inability to identify the legal issues involved and adduce the relevant evidence and other information necessary for the tribunal to make an informed decision avoid the power imbalances involved in situations where a State agency or corporation is represented by knowledgeable and experienced in-house, but non-legal, officers. The arguments against an automatic legislated right to representation are that legal representation generally tends to increase the formality, length and cost of proceedings and is usually only available to those who can afford it, creating inequity between users of the tribunal. Without access to public or pro bono legal services, many QCAT users would find themselves at a disadvantage in proceedings where the other party is legally represented. It is also argued that the members hearing a particular matter are best placed to determine whether legal representation would promote the objects of the Act in that case. Data from QCAT indicates that applications for leave to be represented by a lawyer were made in only 4% of lodgements in Of these, the tribunal granted 86%. In most QCAT jurisdictions, applications for leave to be represented were granted in % of matters. The jurisdictions where leave was most frequently refused were building matters (50% granted, 50% rejected) and minor civil disputes (60% granted, 40% rejected). However it should be noted that with respect to building matters applications for legal representation were only made in 21% of cases and with respect to minor civil disputes applications for legal representations were only made in 1% of cases. 5 Queensland Civil and Administrative Tribunal: Stage 2 report on legislative amendments to implement the tribunals; Tribunals Review Independent Panel of Experts; October 2008; recommendation 14; page 75 17

18 Question 12: Should legal representation as of right in QCAT proceedings be extended? If yes, to what types of matters and in what circumstances? Question 13: How could free legal representation be extended to impecunious parties in QCAT proceedings? 4.4 Regional service QCAT s registry is located in the Brisbane CBD. The registry accepts and processes applications, supporting documents and application fees. Applications are accepted in person and by mail but some applications are also accepted via an electronic lodgement system or by . The registry also provides administrative support to the members of the tribunal including scheduling hearings, mediation and making arrangements for QCAT circuits across South East Queensland and in regional and rural areas. The QCAT registry provides information and assistance to QCAT clients State-wide through a 1300 number and via the QCAT website. The QCAT website informs QCAT users about lodging an application, fees and allowances, forms, processes and procedures. Other information such as how to access the tribunal regionally, QCAT legislation and rules, decisions, fact sheets and guides are also available via the website. Local Magistrates Courts act as QCAT s registry across regional and rural Queensland and in South East Queensland (excluding Brisbane which is serviced by the QCAT registry in the Brisbane CBD). Magistrates Court registry staff accept all QCAT applications and supporting documents and receive application fees. Local Magistrates Court staff process minor civil dispute applications, assign hearing dates and manage the application through to resolution 6. All other applications are forwarded to QCAT s central registry that process the application, allocate hearing dates or mediation etc and generally manage the application from start to finish. The South East Queensland region includes Beaudesert, Beenleigh, Brisbane, Caboolture, Cleveland, Coolangatta, Holland Park, Ipswich, Pine Rivers, Redcliffe, Richlands, Sandgate, Southport and Wynnum. All local Magistrates Courts in regional and rural areas outside of South East Queensland service QCAT clients. They are: Atherton, Ayr, Biloela, Blackwater, Bowen, Bundaberg, Cairns, Caloundra, Charleville, Charters Towers, Childers, Chinchilla, Clermont, Cloncurry, Cooktown, Cunnamulla, Dalby, Emerald, Gatton, Gayndah, Gladstone, Goondiwindi, Gympie, Hervey Bay, Hughenden, Ingham, Innisfail, Julia Creek, Kingaroy, Landsborough, Longreach, Mackay, Mareeba, Maroochydore, Maryborough, Mitchell, Moranbah, Mossman, Mount Isa, Murgon, Nambour, Nanango, Noosa, Normanton, Oakey, Pittsworth, Pomona, Proserpine, Quilpie, Richmond, Rockhampton, Roma, Sarina, St George, Stanthorpe, Taroom, Thursday Island, Toogoolawah, Toowoomba, Townsville, Tully, Warwick, Weipa and Yeppoon. 6 The exception to this is applications filed in some regional centres are referred to Brisbane for mediation but are returned to the local centre for hearing. 18

19 In , QCAT conducted hearings, of which (78%) were heard in South East Queensland and the remaining (22%) were conducted in regional or rural areas Minor civil disputes Minor civil disputes heard by the tribunal include residential tenancy disputes, debt disputes and consumer and trader disputes up to a value (or agreed value) of $ or less. Out of a total of QCAT hearings in , (67%) were hearings for minor civil disputes. In South East Queensland (including Brisbane), minor civil disputes are heard by QCAT adjudicators appointed under the QCAT Act who circuit the South East Queensland centres. Minor civil disputes heard by QCAT adjudicators in South East Queensland constituted (61%) of all QCAT hearings in South East Queensland with over half of all minor civil disputes (12352) in South East Queensland relating to tenancy matters. Across Queensland in , the highest number of minor civil disputes hearings were held in Brisbane (9700) followed by Southport (3513), Beenleigh (1849), Caboolture (1257), Coolangatta (1214), Cairns (1134) and then Townsville (959). In regional and rural areas, minor civil disputes are heard by Magistrates who are deemed ordinary members of QCAT for minor civil dispute hearings. In Townsville, the majority of minor civil disputes are heard by the Magistrates Court Judicial Registrar who is a QCAT adjudicator for the purpose of minor civil disputes. Minor civil disputes accounted for 88% (8850) of the matters heard in regional or rural areas in % (5964) of minor civil dispute hearings heard in regional areas were in relation to tenancy matters. Only one QCAT adjudicator (who is also a judicial registrar) is based in regional or rural Queensland - in Townsville. The remainder are based in Brisbane but circuit South East Queensland (see Appendix 2). QCAT Adjudicators can efficiently dispose of minor civil disputes enabling Magistrates to concentrate on Magistrates Court matters. Across regional Queensland in , Cairns had the highest number of minor civil dispute hearings (1134), followed by Townsville (959), Maroochydore (726), Rockhampton (574) and Toowoomba (533). Magistrates and QCAT adjudicators possess local knowledge and experience that contributes to quick local dispute resolution of minor civil disputes across Queensland Other matters Matters heard by the tribunal other than minor civil disputes include decisions regarding the review of administrative decisions, guardianship and administration for adults, anti-discrimination matters, building disputes, review of decisions relating to the care and protection of children and young people, other civil disputes, occupational regulation matters including police, health professionals and legal practitioners, and retail shop lease disputes. In Brisbane, matters other than minor civil disputes are heard by tribunal members in QCAT s hearing rooms in QCAT s registry located in the Brisbane CBD. In other areas of South East Queensland and across regional and rural Queensland, QCAT tribunal members circuit to conduct hearings for non-minor civil dispute matters. QCAT members may be full-time, part-time or sessional. All full-time and part time members are based in Brisbane. Out of a total of 113 QCAT members, 31 sessional members (approximately 27%) are based in regional centres, as described in Appendix 2. QCAT hearings conducted on circuit are held in the courtrooms in Magistrates Courts. QCAT hearing support officers accompany QCAT members on circuit and support the hearings in these centres through recording of the hearing, order preparation and as a point of contact for the parties attending the hearing. 19

20 Appendix 3 sets out the locations and hearing days scheduled for QCAT regional circuits in 2012 for matters other than minor civil disputes. Most circuits are scheduled for five days. In 2012, 715 circuit hearing days are scheduled in regional areas. Approximately 30% of all regional circuits are scheduled for Cairns (Far North Queensland) and Townsville (North Queensland). Appendix 4 sets out the locations and number of hearing days scheduled for QCAT circuits in South East Queensland for matters other than minor civil disputes. The tribunal utilise videoconferencing and teleconferencing for clients who are unable to access their local courthouse due to reasons such as distance, health or the safety and security of parties involved. The tribunal receive an estimated two or three applications per month to hear matters via remote conferencing. Assessors may be appointed by QCAT to assist the tribunal with relevant local knowledge, experience and expertise. For example, following the commencement of the Neighbourhood Disputes Resolution Act 2011, QCAT appointed locally based tree assessors Appeals Appeals are lodged in the same way as other applications. Regional and rural QCAT appeals accounted for approximately 35% of all appeals (454) filed in QCAT in Of that figure, 88 regional appeals were for minor civil disputes. Appeals from QCAT decisions in regional and rural matters are generally heard on the papers without requiring the parties to appear at a hearing. This is consistent with how appeals originating in South East Queensland are heard in the tribunal. However, across Queensland appeals are listed for a local hearing where appropriate in the circumstances of the case Improving QCAT s regional and rural service delivery There has been a strong demand for QCAT s services in North Queensland. In response to that demand, in December 2011 an additional 16 regional sessional members were appointed to QCAT to reduce circuiting costs and enhance local dispute resolution. QCAT and the Magistrates Courts continue to work together to streamline processes to remove barriers to regional and rural access and ensure consistent service delivery. Development of the QCAT website to increase the accessibility of QCAT, particularly for QCAT s regional and rural clients, is ongoing. Work is also underway to increase the availability of electronic lodgement of QCAT applications. Due to the current fiscal environment QCAT s proposal 7 to establish a permanent presence in North Queensland is not feasible at this time. However, the Attorney-General has announced a pilot to commence in early 2013 to trial Justices of the Peace hearing minor civil disputes in QCAT for minor disputes of less than $5000. The pilot seeks to reduce backlogs so that QCAT Adjudicators and Magistrates are available to deal with more complex matters. It will be trialled in Brisbane, Maroochydore, Ipswich, Southport and Townsville. Question 14: Taking into account the present restrictive fiscal environment in Queensland, what could be done to improve QCAT s regional and rural service delivery? 7 See Queensland Civil and Administrative Tribunal Annual Report , page

21 4.5 The requirement for the President and Deputy President to be a Supreme Court judge and a District Court judge respectively Under part 3, division 2 of the QCAT Act, the President and Deputy President must be a Supreme Court judge and a District Court judge respectively. The Independent Panel of Experts recommended judicial leadership for the following reasons: it would ensure community confidence in the system of justice dispensed by the tribunal, particularly in the early years of the establishment of the tribunal it promotes the independence of the tribunal because of the security of tenure of the judiciary the status and authority of judicial officers would support the role of the President and Deputy President in setting the framework for the proper performance of the adjudicative function by members and in performance management of members, some of whom may be senior counsel or retired judges some enabling legislation requires a Supreme Court judge or judicial member to perform the adjudicative function (for example, disciplinary proceedings under the Legal Profession Act 2007) the requirement for judicial officers to lead the tribunal is consistent with the majority of other Australian generic tribunals (the VCAT, the WA SAT, the Commonwealth Administrative Appeals Tribunal, the NSW Administrative Decisions Tribunal. The exceptions are the NSW CTTT and the ACAT ) 8. Sections 175 and 176 of the QCAT Act provide that: the term of appointment of the President and Deputy President to be for a period of at least three years and not more than five years the appointment does not affect the judge s tenure of office or status as a judge Functions of President and Deputy President Section 172(2) of the QCAT Act states that the functions of the President include: (a) managing the business of the tribunal to ensure it operates effectively (b) giving directions about the practices and procedures (c) managing the members of the tribunal and adjudicators including (i) developing a code of conduct for members and adjudicators (ii) ensuring the members and adjudicators are adequately and appropriately trained to enable the tribunal to perform its functions effectively and efficiently (iii) undertaking performance management for members and adjudicators (iv) deciding selection criteria for appointment of members and adjudicators, and overseeing the selection process (d) adjudicating in the tribunal (e) advising the Minister about the appointment of members of the tribunal and adjudicators, and the suspension and removal of the members and adjudicators from office 8 Queensland Civil and Administrative Tribunal: Stage 1 report on scope and initial implementation arrangements; Tribunals Review Independent Panel of Experts; June 2008; pages