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STATE ADMINISTRATIVE TRIBUNAL BILL 2003
Introduction and First Reading

Bill introduced, on motion by Mr J.A. McGinty (Attorney General), and read a first time.

Second Reading

MR J.A. McGINTY (Fremantle - Attorney General) [4.20 pm]: I move -

That the Bill be now read a second time.

One of the Labor Government’s major commitments to the people of Western Australia at the last election was to establish a modern, efficient and accessible system of administrative law decision making across a wide range of areas. The need for a state administrative tribunal was very clear. The first recommendation for a SAT came from Mr John Wickham, later Hon Justice Wickham, in 1964 and was followed by numerous other recommendations, including the 1982 Law Reform Commission Report, then chaired by Mr David Malcolm; the findings of the WA Inc Royal Commission in 1992; the Commission on Government in 1995; both the Gunning and Temby finance brokers inquiries; the 1999 Law Reform Commission report “Review of the Criminal and Civil Justice System in Western Australia”; and the 2002 report of the Western Australian Civil and Administrative Review Tribunal - WACART - task force, which was chaired by Hon Justice Michael Barker.
The benefits of a SAT are numerous and include a right to obtain reasons for decisions made by public servants; the removal of confusion in the public mind because one overarching tribunal is identified as the place where people can seek redress; less formal, less expensive and more flexible procedures than used in traditional courts by using a more inquisitorial and less adversarial approach; the development of best tribunal practices - both procedural and in terms of common decision-making principles across various jurisdictions; improved quality and consistency in decision making; in a democratic context, the provision of a more appropriate and timely means for citizens to obtain administrative justice; in many instances, the improvement in public accountability of official decision making flowing from heightened scrutiny of administrative decisions; separation of the licensing and registration functions carried out by vocational bodies from the disciplinary function; and avoiding the ad hoc creation of new tribunals to provide administrative review in evolving areas of government decision making.

Through the right to obtain written reasons for decisions and to have those decisions reviewed by an independent, impartial and informal tribunal, ordinary people will have greater rights in their dealings with government. SAT will create a cohesive new jurisdiction that will provide a clear and reliable framework for the resolution of a wide range of disputes and appeals currently undertaken by over 40 boards and tribunals and a range of administrative and ministerial appeal processes. SAT will consolidate over 500 decisions and appeal rights arising under 142 Acts. It will make decisions in a number of areas ranging from an appeal in a complex state revenue matter involving millions of dollars through to a decision about whether a dangerous dog should be put down.

Two Bills establish SAT: the State Administrative Tribunal Bill 2003 - the SAT Bill - and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Bill 2003 - the conferral Bill. The SAT Bill establishes SAT and sets out its jurisdiction, procedures and membership. The main objectives of SAT reflect its modern structure and approach to administrative matters. The objectives set out in the SAT Bill are to achieve the resolution of questions, complaints or disputes and make or review decisions in matters within its jurisdiction fairly and according to the substantial merits of the case; to facilitate access to its services throughout the State; to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; to perform its functions under enabling Acts; and to make use, for the performance of its functions, of members whose knowledge and experience are appropriate to the matters with which it deals.

The jurisdiction of SAT falls into three categories. Firstly, a review jurisdiction that consolidates matters such as town planning appeals, administrative appeals to the courts, and ministerial appeals under legislation. In this jurisdiction, SAT will be able to review licensing decisions made to numerous facets of everyday life, including dogs, hairdressers, fishing, caravan parks, taxis, lawyers and doctors. Secondly, an original jurisdiction, where SAT members will adjudicate matters relating to a number of areas, including guardianship and administration, equal opportunity and strata titles matters, retirement villages disputes and what are currently commercial tribunal matters. SAT will make a variety of decisions relating to its original jurisdiction ranging from the amount of compensation payable to people whose land is being resumed or the value of Aboriginal artefacts through to a minor dispute relating to a commercial tenancy. Thirdly, SAT will be an original vocational jurisdiction, in which SAT members will perform a wide range of disciplinary functions over professions, occupations and businesses. For example, it will assume responsibility for the disciplining of lawyers, doctors, nurses, land valuers, debt collectors, travel agents, real estate agents, plumbers, electricians and optometrists. In relation to each of those jurisdictions, each relevant Act - called an enabling Act - is amended by the conferral Bill to place its jurisdiction within SAT. There are general provisions in the SAT Bill dealing with procedural matters, but a particular enabling Act may have its own overriding provisions about those matters.

I will now take members through some of the features of the State Administrative Tribunal.

Membership: SAT will have tribunal members who will be either judicial members or non-judicial members. The judicial members are the president, who will be a Supreme Court judge, and at least one deputy president, who will be a District Court judge. The presence of judicial members will enhance public confidence in the tribunal’s integrity, and ensure its independence and impartiality. It will also ensure consistent decision making of the highest quality. The non-judicial members will either be senior members or ordinary members. The senior members and ordinary members will either be legally qualified or will have particular skills that equip them to deal with specific types of matters that will be heard by SAT. For example, there will be town planners who can sit on town planning matters and valuers who are able to assist with land valuation matters as well as compensation matters. There will be between 200 and 300 non-judicial members who will sit for particular sessions of SAT. There will also be approximately 55 staff employed by the Government to run SAT. Magistrates will be appointed as members of SAT so that they can exercise SAT’s jurisdiction in remote and rural areas of Western Australia. Public servants and people involved in vocational licensing decisions cannot be members of SAT.

Procedures: The overarching principles with respect to the procedure of SAT are that it is flexible - the rules of evidence will not apply - SAT will be able to inform itself as it thinks fit, and SAT will determine matters according to equity, good conscience and the substantial merits of each case. The president will decide who will constitute SAT for a particular matter. In making that decision the president will have regard to a number of factors, including the degree of public importance and the complexity of the matter and the extent to which any sitting member of SAT needs to have special knowledge or experience that is relevant to the matter. There will usually be one or three members constituting SAT. In exceptional circumstances up to five members may constitute SAT. For example, the president may decide that a five-member tribunal is warranted in a complex disciplinary matter regarding a doctor. It is also worth noting that the president will always sit on revenue matters.

When SAT is dealing with a vocational matter - one in which a decision affecting a person may be made under an enabling Act that applies to that person because of that person’s vocation - there will also be one person who is engaged in the same vocation as the person and one person who is not engaged in that vocation but has knowledge and understanding of interests of a person dealing with a person engaged in that vocation.

SAT will deal with matters in its review jurisdiction by way of a hearing de novo - a new hearing - which means that SAT will not be confined to matters that were before the decision-maker, but may consider new material whether or not it existed at the time the decision was made. In its review jurisdiction, SAT must make a decision on its merits and therefore give the correct and preferable decision in every matter.

Although SAT’s procedures are less formal and more affordable than those of a court, it is still important to ensure that parties receive natural justice and that people’s rights are protected. For this reason, the tribunal will include a legally qualified member, unless the president is satisfied that the proceeding will not involve any issue requiring the knowledge of a legally qualified member. SAT may appoint a legal practitioner, or any other person with relevant knowledge or experience, to assist in relation to a proceeding before it, whether by providing advice or professional services or by giving evidence. Similarly, SAT may refer any question arising in a proceeding to a special referee for the special referee to decide the question or give his or her opinion with regard to it.

A SAT member who has or acquires an interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions as a member in relation to a particular matter, must disclose the nature of that interest to the president of SAT, or, if the person is the president, to the Chief Justice. That member is not allowed to be a sitting member of SAT or perform any function as a SAT member in relation to the matter unless each of the parties involved agrees.

Representation: At the hearing of a proceeding before SAT a party to the proceeding may appear in person or may be represented by a legal practitioner. In certain circumstances someone who is not a legal practitioner may represent a party; for example, if the party is a body corporate and the person is a director of that corporation, or if the tribunal agrees to it. People who have been struck off under the Western Australian Legal Practitioners Act 1893 will not be permitted to represent people before SAT.

Other powers: SAT will also have other powers that facilitate its smooth, efficient and fair operation. For example, parties in a proceeding of SAT will bear their own costs unless otherwise specified in the SAT legislation or in an order of SAT. SAT will also have the power to refer the parties to a matter to attend a compulsory conference or mediation where appropriate. Hearings of SAT are to be held in public unless the tribunal orders otherwise. The tribunal may order otherwise for the reasons that are set out in the SAT Bill, and include national security or the protection of confidential information.

SAT decisions and appeals: One of the most significant reforms brought about by this legislation is that SAT must give its reasons for a final decision - a final decision is a decision of the tribunal that disposes of the matter. In addition, the parties can request that the reasons for a final decision be provided to them in writing. The SAT Bill includes time frames within which those reasons must be provided.

In relation to appeals from SAT, parties may appeal a decision of SAT to the Supreme Court on a question of law and with leave of the Supreme Court. With regard to revenue decisions of SAT, parties may appeal to the Supreme Court on a question of fact or law. An enabling Act may set out different appeal provisions that will apply. For example, the current system of appeals available under the Guardianship and Administration Act will remain.

Cutting-edge application of modern technology: SAT will employ the best practices and information and technology systems available today. This will make it easy for people to access SAT’s jurisdictions and will give the tribunal the flexibility to cope with changes and increased demands in the future. If SAT thinks it is appropriate, it may allow the parties and their representatives and any witnesses to participate in a hearing of a proceeding by means of telephones, video links, or any other system of telecommunication. The Internet will be used to provide easily accessible information and services. Users will be able to lodge applications with SAT, track the progress of matters through SAT, and view decisions online.

In conclusion, the reforms to establish a state administrative tribunal are long overdue. SAT will give Western Australia the most modern and advanced administrative decision-making system in the country. Despite the number of pages and clauses that comprise the SAT Bill and the conferral Bill, this initiative is intended to be simple and user friendly. To facilitate this modern, central and progressive tribunal, SAT will have recurrent operating costs of approximately $10 million. Of the $10 million recurrent operating costs, approximately $6 million will be transferred from existing budgets in other portfolios.

To obtain a comprehensive overview of these reforms, this Bill should be read in conjunction with the conferral Bill. This Bill, together with the conferral Bill, gives effect to a major state government commitment. To meet that commitment, it is planned that SAT will be fully operational from 1 January 2004. Consequently, legislation will need to be proclaimed prior to that date. I therefore seek the support of all members of this House in progressing this Bill as expeditiously as possible. On behalf of the State Government and the people of Western Australia, I have much pleasure in commending the Bill to the House.

Debate adjourned, on motion by Mr R.N. Sweetman.