Tasmanian Civil & Administrative Tribunal Amendment Bill 2021 (No. 46)

Wednesday 27 October 2021, Second Reading Speech

[11.54 a.m.]

Ms ARMITAGE (Launceston) - I rise to make some brief remarks on the bill. I thank the Leader's office for organising the briefings on this TASCAT amendment and consequential amendments bill this morning. With a legislative undertaking as significant as establishing a comprehensive administrative and non‑judicial review body, I would expect there to be some reasonably technical amendments to be made. We owe it to the people of Tasmania to ensure we get this right and that, in establishing TASCAT, we meaningfully enhance access to non‑judicial review and dispute resolution.

This bill seeks to formalise the required amalgamation and transfer of powers necessary for TASCAT to operate. To this end, some 40 pieces of legislation confer powers to the tribunal to operate in both its original and review jurisdictions for the nine co‑located tribunals which comprise TASCAT. This has obviously been a significant task and many parties have worked very hard to get this to fruition.

One of the key points which the Leader made in her second reading speech, related to retaining some of the powers that were originally possessed by some of the constituent boards and tribunals. I believe the example the Leader used related to some of the Mental Health Tribunal protections that will continue to apply when matters are dealt with under the mental health stream of TASCAT.

I think that there is also a good argument to be made here that retaining certain aspects of the original tribunals will also retain specific know‑how and experience that good non‑judicial review requires. There needs to be an adequate balance of having a centralised civil and administrative tribunal whilst also maintaining much of the corporate knowledge and expertise that exists within its constituent parts.

It is perhaps inevitable when amalgamating nine such different bodies in the fashion that has occurred with TASCAT, some objectives and processes will clash and compete with one another. In order to resolve disputes like this the governing legislation should promote natural justice, fairness in accommodation of the needs and vulnerabilities of diverse groups of TASCAT users. Having reviewed the bill and related material I know this is what the legislation here is attempting to do. I am also aware that as a matter of ongoing monitoring of the TASCAT legislation, future opportunities to identify, consolidate and unify provisions in the act to promote good access to justice will occur.

I would be pleased if the Leader could indicate whether there are any time lines for this or whether any formalised reviews of the act, as it is implemented, will take place. If so, who will be responsible for undertaking any reviews of this nature? I know that a number of concerns were put on the record in the other place relating to the issue of costs and that the Attorney‑General and Leader's contribution on this bill have addressed these concerns.

I would simply like to say on record that I concur that TASCAT ought not to have the ability to award costs but the parties should take responsibility for their own costs as a matter of course. I do understand that TASCAT may make an order for a party to pay all or any of the costs of another party if it considers it appropriate to do so after taking into account the specified matters listed in division 10 of Part 8. The power to compensate a party may only be exercised by the President, the Deputy President or a legally qualified member of TASCAT and can only be made in circumstances where that party brought or conducted the proceedings frivolously or vexatiously.

Ideally these situations will be very few and far between given the general requirement of the act for parties to make genuine and good faith attempts to utilise alternative dispute resolution proceedings in the lead‑up to being heard by the tribunal.

There are a number of technical changes this bill makes and I believe that in conjunction with the briefings we have received, many of the concerns raised by stakeholders during the consultation process have been addressed. I look forward to the contribution of others and emphasise my support of the bill.