The Northern Territory Civil and Administrative Tribunal

Report
by Sonia Brownhill
Barrister
William Forster Chambers
© 2014
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Background
When will NTCAT begin?
How will it be done?
Establishment and objects
Jurisdiction
◦ Review Jurisdiction
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Practice and procedure
Costs
Internal review and appeals
Background
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June 1991 and September 2004
Both recommended establishment of a
Tribunal system
for the making and review of administrative
decisions
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Commonwealth: 1976
Victoria: 1998
Western Australia: 2004
Australian Capital Territory: 2009
Queensland: 2009
South Australia: 2013
New South Wales: 1 Jan 2014
Tasmania: not yet
Northern Territory…
When will it begin?
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October 2014
How will it be done?
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Northern Territory Civil and Administrative
Tribunal Act 2014
◦ Passed by the Legislative Assembly on 21 August
◦ Is now awaiting assent
◦ The “nuts and bolts”
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Establishes the Tribunal
Tribunal membership
Tribunal’s functions, procedures and powers
Commencing & hearing a proceeding in the Tribunal
◦ The NTCAT Act is subject of this CPD Session
◦ But the NTCAT Act is not the whole of the story…
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Administrative decision making is subject of
great many statutes
Some confer jurisdiction on particular
tribunals / bodies / entities
◦ AG’s expressed intention is that NTCAT will
eventually “replace the majority of the 35 entities
which currently exist” under some 117 Acts
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Some provide for an appeal process from
such decisions to tribunals / courts
◦ AG’s expressed intention is that eventually a further
54 Acts which contain an appeal process to a court
will be considered for suitability to NTCAT
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NTCAT Act refers to decisions made under
“relevant Acts”
Defined as an Act or subordinate legislation
that confers jurisdiction on the Tribunal
So, whether NTCAT has jurisdiction in respect
of a particular decision or not will depend
upon the terms of legislation other than the
NTCAT Act
Generally speaking: the particular statute
pursuant to which the decision was or should
have been made
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Northern Territory Civil and Administrative
Tribunal (Conferral of Jurisdiction
Amendments) Bill 2014
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Introduced to LA on 20 Aug 2014
Yet to be passed
By amending the “relevant Acts”,
confers jurisdiction in respect of decisions made
under
 Births, Deaths and Marriages Act
 Fences Act
 Victims of Crime Assistance Act
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Northern Territory Civil and Administrative Tribunal
(Conferral of Jurisdiction Amendments) (No 2) Bill
2014
◦ Yet to be introduced into Legislative Assembly
◦ By amending some 17 Acts or Regulations,
◦ confers jurisdiction in respect of decisions made under, eg:
Building Act (and regs); Pastoral Land Act; Mineral Titles
Act, Planning Act; Residential Tenancies Act
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Northern Territory Civil and Administrative Tribunal
(Conferral of Jurisdiction for Native Title Matters) Bill
2014
◦ Yet to be introduced into Legislative Assembly
◦ confers jurisdiction in respect of objections made under
s24MD(6B)(d) of the Native Title Act (Cth)
Establishment and objects
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NTCAT established by s7
Given the jurisdiction in Part 3: s8
Is required to facilitate access to its services
throughout the NT and may sit at any place in the
NT: s9
Is not subject to direction or control of Minister in
exercising its jurisdiction: s11
s12: NTCAT consists of:
◦ President (magistrate or person eligible:s13)
 Functions in s14: Be primarily responsible for administration
of NTCAT
◦ Deputy Presidents (magistrate or person eligible: s15)
 Functions in s15: Assist the President
◦ Ordinary members (lawyer with at least 5 yrs exper: s16)
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Objectives: s10
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Promote the best principles of public administration
Be accessible to the public
Be responsive to parties
Ensure proceedings resolved as quickly as possible while
achieving a just outcome (using mediation / ADR
processes where appropriate)
Keep costs to parties to a minimum
Act with as little formality and technicality as possible
Use straightforward language and procedures
Be flexible in conduct of its business and adjust
procedures to fit the circumstances
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President to nominate no more than 3 members for a
proceeding (s22)
Rules can also constitute the Registrar as the NTCAT
for certain matters (s22)
If 2 or more members constitute NTCAT, most senior
member presides (s26)
If 2 members constitute NTCAT, decision must be
unanimous or if they cannot agree, decision is that of
presiding member (s27)
If 3 members constitute NTCAT, decision is majority
of members (s27)
President may determine questions of law referred to
him/her by NTCAT (s28)
President can refer question of law to the Supreme
Court (s28)
Part 3 of NTCAT Act coupled
with the “relevant Acts”
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NTCAT has jurisdiction conferred on it by NTCAT Act
or by any other Act: s30
2 kinds of jurisdiction (s:31)
◦ original jurisdiction (s32)
 if matter given to NTCAT by Act does not involve review of a
decision, matter is in original jurisdiction
 Examples: yet to be subject of amending legislation but plans
are to give NTCAT original jurisdiction in complaints under
Anti-Discrimination Act and claims under Small Claims Act
◦ review jurisdiction (s33)
 if matter given to NTCAT by Act involves a review of a decision,
matter is in review jurisdiction
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Neither “review” nor “decision” is defined, but
“reviewable decision” is defined:
◦ a decision made by a decision maker that may be reviewed
by the Tribunal
◦ “decision maker” = a person who makes a reviewable decision
Getting a decision
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Decision maker (making a reviewable decision)
must give written notice of decision and right of
review by NTCAT to each person (as conferred by
relevant Act) with a right to have decision
reviewed : s34
Person with right to have decision reviewed can
request decision maker to give written statement
of reasons: s35
◦ request to be made within 28 days of notice of decision
/ 28 days after decision
◦ reasons to be given within 28 days of request
◦ content: reasons for decision and any findings on
material questions of fact, referring to evidence or
material on which findings were based
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Person who asked for reasons can apply to NTCAT for an
order that decision maker give statement of reasons: s36
NTCAT can order decision maker to give reasons even if
request not lodged in time, if reasonable grounds for not
making request in time: s36
Statement of reasons must not include protected matter:
s37
◦ ie any information or document for which there is a certificate in
force under s38
◦ Under s38, Minister can certify that disclosure of information or
document would be contrary to public interest
 grounds: deliberations of Cabinet or Executive Council; protected from
disclosure by parliamentary privilege; endanger national or international
security; damage inter-governmental relations; other public interest
immunity type basis
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President can revoke certificate if disclosure not contrary
to public interest: s39
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If proceeding in NTCAT’s jurisdiction is
commenced, decision maker must give NTCAT a
statement of reasons and other documents or
material relevant to NTCAT’s review of decision:
s41
Where decision maker is required under an Act to
make a decision, but does not do so either in
period stated by Act, or if no period stated,
within 60 days after obligation to make decision
arose, decision maker is taken to have made a
decision adverse to persons with right to have
decision reviewed: s42
Effect on decision and
decision maker’s powers
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Once NTCAT proceedings commenced, decision
maker cannot vary or set aside the decision,
unless relevant Act permits or parties consent, or
decision maker invited to reconsider decision:
s43
◦ NTCAT may, at any time during a proceeding, invite
decision maker to reconsider the decision: s49
◦ If so invited, decision maker must reconsider and either
confirm, vary or set aside decision: s49
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Otherwise, NTCAT proceedings do not affect
operation of decision, but
NTCAT or decision maker can make order staying
operation of decision until NTCAT decides
proceeding or some other time: s44
Exercise of jurisdiction
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Review of decision is by way of rehearing: s45
Objective of review is to produce correct or
preferable decision: s46
Review will include (s46):
◦ examination of evidence / material before decision
maker and
◦ any further evidence / material NTCAT decides to admit
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Review not limited to (s46):
◦ reasons of decision maker
◦ grounds of review set out in application for review
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=> Complete merits review
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Upon review, NTCAT must either (s50(1)):
◦ confirm the decision
◦ vary the decision
◦ set aside the decision and
 substitute its own or
 send the matter back to decision maker for reconsideration
in accord with NTCAT’s recommendations
◦ make a different decision if permitted by the Act
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NTCAT has power to make any consequential
orders it considers appropriate: s50(2)
NTCAT’s power to make decision includes power
to impose conditions on decision and make
ancillary orders: s67
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If NTCAT confirms decision, no further review
is available, either to applicant or to any other
person: s51(1)
If NTCAT varies or substitutes decision
(s51(2):
◦ its decision is taken to be decision maker’s
decision, which has effect from time of original
decision (unless otherwise ordered): s51
◦ but, varied or substituted decision is not a
reviewable decision
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If NTCAT sends it back for reconsideration,
fresh decision is a reviewable decision: s50(3)
How is review jurisdiction
exercised?
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NTCAT may determine its own procedures
(subject to NTCAT Act and relevant Act): s52
Principles in conduct of proceedings (s53).
NTCAT:
◦ must act fairly and according to substantial merits of
matter
◦ must comply with rules of natural justice
◦ may inform itself in any way it considers appropriate and
not bound by the rules of evidence
◦ must act with as little formality and technicality, and
with as much speed, as requirements of Acts and a
proper consideration of matter permit
◦ must ensure, so far as is practicable, that all relevant
material is disclosed to NTCAT to enable it to decide
proceeding with all relevant facts
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A proceeding commences when a person’s
application is accepted by the Registrar: s94(1)
Applications for review must be filed within
(s94(3)):
◦ 28 days of the day applicant was notified of the
decision or
◦ if applicant sought written reasons under s35, 28
days of receiving the written reasons or when
reasons should have been received
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Parties to proceedings in review jurisdiction are (s127):
◦ applicant
◦ if applicable, person subject of disciplinary proceeding or inquiry
into their behaviour
◦ decision maker
◦ persons joined by NTCAT or intervening
◦ person specified by relevant Act to be a party
NTCAT may order person to be joined if person should be
bound by or have benefit of a decision, or their interests
are affected by the proceeding, or it is desirable for them
to be a party: s128
Minister (ie AG) may, on behalf of NT, intervene in a
proceeding: s129
Party is entitled to appear personally, by a legal
practitioner or, with the leave of NTCAT, by another
person: s130
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NTCAT must (s54):
◦ take reasonable steps to ensure parties:
 have reasonable opportunity to understand nature of matter
under consideration
 understand nature of assertions made in proceedings and
legal implications of them
◦ explain to parties, if asked, any aspect of procedure of
NTCAT or any decision or direction
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NTCAT must take all reasonable steps to ensure
(s55):
◦ parties have had opportunity to be heard or have their
submissions received
◦ all relevant material is disclosed to NTCAT to enable it to
decide all relevant facts in issue
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NTCAT may require parties to attend compulsory
conference: s107
Purpose is to identify and clarify issues and promote
resolution by settlement: s108
Compulsory conference is to be held in private: s110
Evidence of anything said or done in a conference is
inadmissible except with parties’ consent: s111
Any settlement reached is of no effect unless accepted by
NTCAT, who (s112):
◦ must not accept if inconsistent with relevant Act
◦ may not accept if may prejudice a person not represented at
conference who has a direct or material interest in the matter
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If settlement is accepted, terms must be reduced to
writing, which may be enforced as if an order of NTCAT:
s112
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NTCAT may require parties to attend mediation by an
approved mediator (from list established under s117 –
which may include Members of NTCAT (s122)): s118
Purpose of mediation is to promote resolution of the
matter by a settlement: s119
Mediator may determine procedure for mediation: s120
Mediation must be held in private: s120
Evidence of anything said or done in mediation is
inadmissible in a proceeding except with consent of all
parties: s121
Any settlement reached is of not effect unless accepted by
NTCAT: ss122 and 123
◦ may not be accepted for same bases as under compulsory
conference
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If settlement is accepted, terms must be reduced to
writing, which may be enforced as if an order of NTCAT:
ss123, 124
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NTCAT may (on own motion or on application by
party) issue a summons requiring person to
appear to give evidence or produce material: s89
NTCAT may require a witness to take an oath
before giving evidence, and to answer a question
put by NTCAT or a party, if NTCAT determines
question relevant to proceeding: s90
Failure to take an oath, answer a question or
produce a document is a contempt: s87
NTCAT may carry out an inspection of a place if
relevant to a proceeding: s93
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NTCAT may (s56):
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Hearing is to be open to the public unless NTCAT orders
otherwise: s60
◦ require evidence / argument in writing
◦ decide which aspects of evidence / argument it will hear orally
◦ limit time for presenting respective cases of parties to extent it
considers would not impede fair and adequate presentation of
case
◦ s62: NTCAT powers:
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order hearing or part thereof be in private
limitations on publishing name/address of witnesses or evidence
limitations on disclosure of evidence
may exclude any person from hearing or part thereof
◦ s62: NTCAT can only exercise these powers if NTCAT
considers necessary in the interests of justice or by reason of
confidential nature or in order to expedite proceedings or for
any other reason
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NTCAT given power to make any order necessary to
preserve subject matter of proceeding or protect interests
of party: s63
NTCAT can make orders other than those sought by
applicant in the application: s64
NTCAT can make interlocutory orders: s65
NTCAT can order party to give security for costs or
undertaking as to payment of money: s66
NTCAT can give relief from time limits (if Rules permit):
s68
NTCAT can allow participation in proceedings by phone,
video link, or otherwise and can conduct proceedings on
the papers: s69
NTCAT can appoint assessors (s73) to give expert
evidence or advice or decide a question of fact (s74), and
can order parties to pay some or all of assessor’s costs
(s75)
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Power to make directions: s96
Power to consolidate proceedings: s97
Power to split proceedings: s98
Power to dismiss proceedings if there is a more
appropriate tribunal, court or person: s99
Power to give leave to withdraw proceedings: s100
Power to dismiss for want of prosecution: s101
Power to dismiss frivolous, vexatious or improper
proceedings: s102
Power to dismiss if party conducting proceedings in a way
that unnecessarily disadvantages another party: s103
Power to appoint a litigation guardian: s104
Decisions must be given in writing within 28 days after a
hearing, but President can give an extension of time if
NTCAT asks for: s105
Costs
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General rule: parties bear their own costs in a proceeding: s131
NTCAT may make a costs order, but must first take into account
(s132):
◦ objectives re simplifying proceedings and keeping costs to a minimum;
◦ need to ensure proceedings are fair and parties not disadvantaged by
proceedings that have little or no merit
◦ fact of dismissal of the proceedings
◦ any other matter
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NTCAT must also take into account in a review proceeding (s133):
◦ whether party genuinely attempted to enable and assist decision maker to
make original decision on its merits
◦ whether decision maker genuinely attempted to make original decision on
its merits
NTCAT may make a costs order against a representative of a
party because they acted in, or delayed, the proceeding in a way
that resulted in unnecessary costs: s134
If NTCAT makes a costs order, person to whom costs are payable
may recover in an appropriate court as if it were a debt: s84(1)
Person commits an offence if they fail to comply with a costs
order s84(2)
◦ 100 penalty units or 6 months imprisonment
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Person aggrieved by decision of NTCAT in
exercise of original jurisdiction may apply for
review: s140
That review is an exercise of NTCAT’s review
jurisdiction
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Party to a proceeding (either in original or
review jurisdiction) may appeal to the
Supreme Court against a decision of NTCAT
on a question of law: s141
May only appeal with leave of Supreme Court:
s141
Application for leave to appeal does not stay
the decision: s142
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Expectation [Second Reading Speech]:
◦ A single, easy to find, easy to use, non-judicial body, for
fair and independent resolution of disputes relating to
administrative decisions
◦ Consolidation of a range of existing tribunals removing
present duplication of resources and inconsistencies at a
governance and legislative level
◦ Greater access and more flexible procedures than courts
◦ Leading to a more efficient, fairer and user friendly
system of dispute resolution for the community
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High hopes, achievement of which remains to be
seen

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