Tasmanian Civil & Administrative Tribunal Bill (No 25) of 2020

Second reading speech

14 October 2020

[11.17 a.m.]

Ms ARMITAGE (Launceston) - Mr President, this is an historic bill. For almost 20 years, Tasmania has considered the formation of a single civil and administrative tribunal, and it seems it is now coming to fruition.

The 2015 discussion paper, A Single Tribunal for Tasmania, expertly prepared by the Department of Justice, under the stewardship of the late honourable Vanessa Goodwin makes a number of focused inquiries and detailed suggestions for how this could have come about.

Tasmania, as the only Australian state that does not yet have a single tribunal, is in the perfect position to learn from other jurisdictions and to properly implement these significant reforms.

I congratulate the Government for taking ownership of this issue and seeing it through. It has been a considered investment in Tasmania's capacity to review administrative decisions and to provide Tasmanians with enhanced access to justice: the cornerstone of any developed democracy.

To quote the 2015 discussion paper -

… tribunals perform vital functions in the day to day lives of citizens. They are charged with responsibility to determine a range of matters that directly affect the freedom, livelihood and welfare of citizens in the community. They are intended to provide accessible, cost-effective, informal and fair processes to resolve disputes. As such, their effective operation is vital to the community.

Many pre-existing administrative review and decision-making bodies maintain their functions with their own staff and premises, or none at all, relying instead on intermittent support from other bodies or even the private sector.

The issue of divergent appeal paths can also occur where there are instances of single pieces of legislation having appeals rights to two or more appellate bodies such as the Building Act and the Water and Sewerage Industry Act. Access to justice is restricted under arrangements like these because they conflate non-judicial review options and increase the time and money it takes to make decisions.

Consultation undertaken in the production of the 2015 discussion paper indicated that there was widespread support for a single tribunal in the Department of Justice. By creating one, we are more smartly using our resources, bringing Tasmania into line with other Australian jurisdictions and taking an opportunity to bring a number of benefits to our community. Among others, the 2015 discussion paper indicated the following benefits to the community -

· avoiding continued proliferation of tribunals, boards and other administrative decision-makers;

· providing an established body which can be vested with future administrative decision-making required by a government that is both adaptable and properly resourced;

· improving access to justice for the Tasmanian community;

· providing greater uniformity and consistency and processes and decision-making while retaining the important specialist features of specialist tribunals.

Other benefits include -

· reducing inefficiencies in existing arrangements by consolidating resources;

· improving flexibility and capacity building for tribunal services; and

· providing an independent and impartial body for dispute resolution services, generating the highest confidence of that service in the Tasmanian public.

Others I think it prudent to mention would be the reduced strain that will be felt by other administrative and civil justice bodies, which in turn will provide greater access to justice by judicial and non-judicial means. That is to say, the workload for bodies such as the Administrative Appeals Division of the Magistrates Court will be eased, allowing for more efficient handling of business we traditionally associate with the Magistrates Court, such as criminal matters.

The promotion of alternative dispute resolution - ADR - by this policy and bill should absolutely be commended. Many people who have experienced a civil wrong want their day in court, to be heard and authoritatively adjudicated.

What many do not realise, however, is that undertaking ADR is more efficient, cost‑effective and, in some cases, more likely to provide a fairer and more satisfactory outcome for all parties, given that decisions are usually reached by agreement rather than by fiat. Organising and opening access to ADR processes, as this policy invariably will, can significantly increase access to this type of justice and that is of substantial benefit to our community.

I note that there was some discussion in the other place about what kind of advocacy and client support mechanisms will be contained in the forthcoming legislation. Enhanced access to justice does not just mean access to administrative and civil decision-makers and dispute resolution processes, but also having the ability to seek quality advice and receive support and advocacy, particularly where vulnerable people are involved. Any information about what plans there are or what consultation is slated to take place regarding this issue would be appreciated. I expect that social services and community legal organisations are being proactively consulted to this end.

Because Tasmania is the final state to implement a single tribunal, we have the advantage of being able to learn from jurisdictions which have come before us and avoid making any of their errors. Consequently, I again refer to the 2015 report, which points out that one of the risks of amalgamation is inflexible application of generalist processes to specialist bodies that need the capacity to cater their procedures to suit their client base and legislative objectives. A person seeking to make applications within the anti-discrimination jurisdiction will need to meet far different criteria from those participating in a planning dispute. This is made all the more important when vulnerable clients are identified and can lose their access to justice altogether if the processes are handled poorly.

Leader, I wonder what measures are currently being proactively taken to identify possible conflicts of this nature, while consolidating and streamlining procedures where there are commonalities. I know this is actually quite a big question, but I believe that because Tasmania is the last jurisdiction to create a single tribunal there should not be a need for very much learning on the run because we have access to all the successes and failures of other jurisdictions to guide us.

That being said, I am also acutely aware that this bill is the first in a number that will be needed to legislate and establish TasCAT, formally transfer powers and staff and properly vest it with the necessary powers and functions they need to operate.

The thrust of my questions are: What issues are being anticipated? What are stakeholders saying? What plans are in place to avoid, prevent and mitigate any errors that may result from amalgamation?

In a similar vein, I raise the topic of funding for the new tribunal. The requirement of administrative independence raised by the 2015 report indicates that a serious conflict of interest is raised when funding or resources allocated to the tribunal are controlled or managed by an entity that has a vested interest in the outcome of the tribunal's decisions. I understand that this is seen as less of an issue where the administering agency is the Department of Justice, given its neutrality, its understanding of independence of adjudicating bodies and its experience in dealing with them.

The question raised by the report, which I repeat here, is whether the new Tasmanian tribunal will be funded by its own parliamentary appropriation or not. Given the significant level of funding that I anticipate will be required by this venture, it seems like it might be a good idea to me, but I am keen to hear what the Government's plans are.

The introduction of this bill is, in and of itself, a significant moment for Tasmanian justice and for a responsible and accountable executive. Providing better access to review of the administrative decisions and easing the burden that may otherwise exist for judicial and non‑judicial review bodies means we can expect a more cooperative, fair and productive relationship between our administrative bodies and Tasmanians - and Tasmanians with one another.

I support the bill.