Hearsay ... the Journal of the Bar Association of Queensland
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Issue 30: October 2008
QCAT - Stage 1 Report on Scope and Initial Implementation Arrangements - A Review Print E-mail

qcat_intro.jpgOn 7 July 2008 the Queensland cabinet approved the stage one report on the jurisdiction and initial implementation arrangements of the proposed Queensland Civil and Administrative Tribunal (“QCAT”). 1

Summary

The report was prepared by an independent panel of experts. The report includes 48 recommendations and identifies 23 tribunals and the functions of 5 other bodies for inclusion in the new QCAT.

Julie Grantham, the Director-General of the Department of Justice and Attorney-General observed, in a letter to the Office of the Independent Assessor, that amalgamation of so many tribunals and functions is anticipated to require significant changes to legislation, structure, technology, process, location and culture.

Ms Grantham advised that an intensive period of consultation would now commence.

Proposals

Whilst there is insufficient space here to identify all of the recommendations and proposals, mention will be made of those that may affect most of the legal profession, by dint of research into the number of applications made each year as identified in the report.

The report recognises that the Government has announced that QCAT will be operational in the second half of 2009. In order to meet that objective, the panel recommends a staged approach to implementation and that QCAT commences operation in December 2008 to allow sufficient time to develop the necessary parts of the new organisation.

justice.jpgDivisional jurisdictions

As for jurisdictions, the panel recommended QCAT be organised into three divisions:

  • A human rights division – merit review decision making and original decision making. This division would include the Children Services Tribunal, the Guardianship and Administration Tribunal and the Anti-Discrimination Tribunal;
  • An administrative and disciplinary division – various professional or vocational disciplinary committees;

  • A civil disputes division – Whilst small debt and small claim tribunals are recommended to be included, regardless of their inclusion, the report recommends recording of proceedings to help address transparency of process and improve community confidence. The Retail Shop Leases Tribunal and the civil matters currently in the Commercial and Consumer Tribunal (CCT) are recommended for inclusion.

The report observes that Queensland has almost 30 tribunals, which create a complex system of administrative justice such that a single tribunal performing a wide range of functions will provide a single recognisable gateway to increase the community’s access to justice and increase the efficiency and quality of administrative decision making.

Criterion for recommending the amalgamation of the tribunals was generally based upon inclusion unless there was a sufficient reason for exclusion. Such reasons included the circumstance that inclusion would be likely to diminish the effectiveness of a tribunal or its efficiency or accessibility. These principles were applied in deciding not to include the Mental Health Review Tribunal and the referees who resolve Body Corporate disputes.

The tribunals which the panel recommended be included in QCAT and with which readers would mostly be familiar include:

Anti-Discrimination Tribunal Appeals Board – City of Brisbane Act 19245 Appeals Tribunal – Local Government Act 1993 (levee banks)
Children Services Tribunal Commercial and Consumer Tribunal District Court (various review/appeal functions)
Fisheries Tribunal Gaming Commission (certain functions) Guardianship and Administration Tribunal
Health Practitioners Tribunal Legal Practice Tribunal Local Government Appeals Tribunal
Magistrates Court (various review/appeal functions only and minor debt matters) Misconduct Tribunal Nursing Tribunal
Public Service Commission Publication Appeals Tribunal Racing Appeals Tribunal
Retail Shop Leases Tribunal Small Claims Tribunal Supreme Court (certain review/appeal functions only)
Various Other Professional Disciplinary Committees Veterinary Tribunal

A total of 28 bodies are recommended for inclusion and 23 recommended for exclusion. Appendix 7 to the report contains a comprehensive list of the jurisdictions considered for inclusion and exclusion.

Organisation, Administration & Process

The membership organisation of QCAT which the panel has recommended will see a Supreme Court judge as President and leader of the tribunal, and a District Court judge as deputy president, both for a minimum term of 3 years, together with an appropriate mix of sessional and full time members, with a distinction between senior and ordinary members allocated cases according to their level of skill and expertise. It will be important that the current knowledge and specialist skills of existing tribunals are not lost.

Moreover, QCAT is identified in the report as providing an opportunity to improve the quality and openness of tribunal decision making across all jurisdictions, by installing a universal requirement for QCAT to provide reasons, whether oral or written, for its decisions. Similarly, the report recommends that proceedings be digitally recorded.

Emphasis is placed on the importance of ADR processes by recommending that such process should be adopted universally and that existing ADR processes should be retained.

Restrictions on appeal rights are identified. For instance, an internal appeals process at first instance for most decisions is recommended. Appeals on a question of law are to be as of right, unless the amount involved is $7,500 or less, in which event leave of the president is required. Appeals should otherwise require leave of the president.

Recognition of the needs of regional centres translates in the report to a recommendation of a strategy to maintain access for regional locations by the use of regional members, circuits, Magistrates, semi-retired legal practitioners, judicial registrars and technology.

An evaluation framework, identifying the process and outcome evaluations, is recommended before QCAT commences. The framework will require the production of publicly accessible documents that measure performance against the evaluation framework.

Specific legislative provision is recommended to deal with issues that may arise between QCAT and the Ombudsman due to simultaneous use of both avenues of review.

The report recommends the senior positions should be filled and the organisation should be co-located in Brisbane in a suitable location as soon as possible. Importantly, the report recommends a growth funding model to be explored with Queensland Treasury with a view to ensuring an appropriate level of funding to respond to increases in jurisdiction of QCAT and increases within existing jurisdictions.

Finally, the report suggests the Attorney-General should have ministerial responsibility for QCAT and that QCAT should form part of the appropriate administrative arrangements within the Department of Justice and Attorney-General.

legal_books.jpgConclusions

The terms of reference did not permit the panel to consider whether there should be a general right of merits review of administrative decisions. Rather, the panel was required to consider whether tribunals, to which there is an existing right of review or appeal, should be amalgamated into the new civil and administrative tribunal.

In this regard, the recommendations for inclusions of some 28 jurisdictional bodies into QCAT, yet exclusion of 23 others, might be seen by some as creating further complexity for practitioners when determining the appropriate jurisdiction in which to commence various claims. This is particularly so where non-government entities are involved and in the human rights and civil divisions.

But, whilst other jurisdictions such as the Victorian VCAT have had their teething problems, overall, in this writer’s view, the establishment of one central tribunal in which numerous matters of a civil and administrative nature is likely to lead to better access to justice for consumers and better decisions by government. (It remains to be seen whether administrative merits review of government decisions, more generally, will eventually be included.) Properly funded and organised, and with the guidance of eminent jurists as president and deputy president, QCAT promises less complex processes for the legal community and more efficient, accessible and transparent justice for the community at large.

Ben Whitten

  1. The name is recommended by the panel, and its organization should broadly reflect the model developed in other jurisdictions eg VCAT in Victoria.


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