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by Sonia Brownhill Barrister William Forster Chambers © 2014.

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Presentation on theme: "by Sonia Brownhill Barrister William Forster Chambers © 2014."— Presentation transcript:

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2 by Sonia Brownhill Barrister William Forster Chambers © 2014

3  Background  When will NTCAT begin?  How will it be done?  Establishment and objects  Jurisdiction ◦ Review Jurisdiction  Practice and procedure  Costs  Internal review and appeals

4 Background

5  June 1991 and September 2004  Both recommended establishment of a Tribunal system  for the making and review of administrative decisions

6  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…

7 When will it begin?

8  1 October 2014

9 How will it be done?

10  Northern Territory Civil and Administrative Tribunal Act 2014 ◦ Passed by the Legislative Assembly on 21 August ◦ Is now awaiting assent ◦ The “nuts and bolts”  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…

11  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  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

12  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

13  Northern Territory Civil and Administrative Tribunal (Conferral of Jurisdiction Amendments) Bill 2014 ◦ 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

14  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  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)

15 Establishment and objects

16  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)

17  Objectives: s10 ◦ 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

18  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)

19 Part 3 of NTCAT Act coupled with the “relevant Acts”

20  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  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

21 Getting a decision

22  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

23  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  President can revoke certificate if disclosure not contrary to public interest: s39

24  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

25 Effect on decision and decision maker’s powers

26  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  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

27 Exercise of jurisdiction

28  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  Review not limited to (s46): ◦ reasons of decision maker ◦ grounds of review set out in application for review  => Complete merits review

29  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  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

30  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  If NTCAT sends it back for reconsideration, fresh decision is a reviewable decision: s50(3)

31 How is review jurisdiction exercised?

32  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

33  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

34  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

35  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  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

36  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  If settlement is accepted, terms must be reduced to writing, which may be enforced as if an order of NTCAT: s112

37  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  If settlement is accepted, terms must be reduced to writing, which may be enforced as if an order of NTCAT: ss123, 124

38  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

39  NTCAT may (s56): ◦ 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  Hearing is to be open to the public unless NTCAT orders otherwise: s60 ◦ s62: NTCAT powers:  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

40  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)

41  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

42 Costs

43  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  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

44

45  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

46  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

47  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  High hopes, achievement of which remains to be seen


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