1. The Northern Territory Civil and Administrative Tribunal
by Sonia Brownhill
Barrister
William Forster Chambers
© 2014

2. Overview Background When will NTCAT begin? How will it be done?
Establishment and objects
Jurisdiction
Review Jurisdiction
Practice and procedure
Costs
Internal review and appeals

3. NTCAT
Background

4. NT Law Reform Committee Reports
June 1991 and September 2004
Both recommended establishment of a Tribunal system
for the making and review of administrative decisions

5. Almost the last jurisdiction to do it
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…

6. NTCAT
When will it begin?

7. Anticipated to commence operation on…
1 October 2014

8. NTCAT
How will it be done?

9. Multiple Act approach
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…

10. Rest of the story…
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

11. Done by “relevant Acts”
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

12. “Relevant Acts” to date…
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

13. “Relevant Acts” to date
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
confers jurisdiction in respect of objections made under s24MD(6B)(d) of the Native Title Act (Cth)

14. NTCAT
Establishment and objects

15. Northern Territory Civil and Administrative Tribunal Act
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)

16. Objectives of NTCAT 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

17. Constitution of NTCAT
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)

18. Jurisdiction
Part 3 of NTCAT Act coupled with the “relevant Acts”

19. Part 3, NTCAT Act
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

20. Review Jurisdiction
Getting a decision

21. Getting a decision
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

22. Getting a decision
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

23. Getting a decision
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

24. Review Jurisdiction
Effect on decision and decision maker’s powers

25. Effect of NTCAT proceedings on review decision
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

26. Review Jurisdiction
Exercise of jurisdiction

27. Exercise of jurisdiction
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

28. Exercise of jurisdiction
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

29. Exercise of jurisdiction
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)

30. Practice and Procedure
How is review jurisdiction exercised?

31. How jurisdiction exercised
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

32. Commencing a proceeding for review
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

33. Parties and representation
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

34. Parties to be informed 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

35. ADR and settlement: Compulsory conference
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

36. ADR and settlement: Mediation
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

37. Witnesses and evidence
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

38. Manner of hearing 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

39. Extensive powers
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)

40. Other powers 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

41. Review Jurisdiction
Costs

42. Costs 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

43. Internal review and appeals

44. Internal review of original jurisdiction
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

45. Appeal
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

46. Will NTCAT live up to expectations?
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