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Report Details


Committee Name:

Legislation Committee

House:

Legislative Council
Report Type:Report

Title:

Inquiry into the Jurisdiction and Operation of the State Administrative Tribunal
Report No:14
No of Pages:499
Physical Location:Legislative Council Committee Office

Presentation Date:

05/20/2009
Inquiry Name(s):Jurisdiction and Operation of the State Administrative Tribunal


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Hide details for Executive SummaryExecutive Summary

1.
On 7 June 2007, the inquiry into the jurisdiction and operation of the State Administrative Tribunal (SAT or Tribunal) was referred by the Legislative Council to the Standing Committee on Legislation (Committee) pursuant to section 173 of the State Administrative Tribunal Act 2004.

2.
On 7 August 2008, the Committee was in the process of gathering further information and drafting this Report when the 2008 State Election was called, the 37th Parliament was prorogued and the Legislative Assembly was dissolved. The prorogation of the 37th Parliament terminated this inquiry. However, this inquiry was re-referred to the Committee on 11 November 2008 in the 38th Parliament, which opened on 6 November 2008.

3.
Over the course of this inquiry, the Committee received 99 submissions, held 13 public hearings involving 22 witnesses, conducted a site visit of the SAT premises and exchanged numerous items of correspondence with relevant parties in an effort to obtain information about people’s and organisations’ experiences of the operation and jurisdiction of the SAT.

The Committee’s General Observations about the Operation of the SAT

4.
The Committee found that the SAT is meeting its objectives and achieving its self-imposed benchmarks and noted that the SAT constantly monitors its operations in attempting to achieve best practice.

5.
The Committee made several recommendations to improve the operation of the SAT and to clarify any ambiguities, or remove redundant provisions, in the SAT’s empowering legislation. For example, the Committee recommended that:

section 24 of the State Administrative Tribunal Act 2004 be amended to expressly require the original decision-maker to provide the SAT with documents and materials which are otherwise subject to legal professional privilege and/or public interest immunity (refer to Recommendation 9);

certain third parties be permitted to apply to the SAT for the review of planning approval decisions (refer to Recommendation 18);

the SAT continues to liaise with the Disability Services Commission to develop strategies to address the issue of power imbalances between people with disabilities and other interested persons in its proceedings (refer to Recommendation 34); and

the Government provide adequate resources to relocate the SAT to another, permanent location as soon as is practicable after the expiry of the lease for the SAT’s current premises (refer to Recommendation 35).

The Committee’s General Observations about the Jurisdiction of the SAT

    6.
The Committee recommended that new or altered jurisdictions be conferred on the SAT under 15 Acts (refer to Recommendations 42 to 54 and 57 to 59), many of which will result in a substantial increase in the SAT’s workload. In addition, the Committee recommended that the SAT’s disciplinary jurisdiction relating to various vocations be altered and standardised (refer to Recommendations 55 and 56).

7.
The Committee noted that any increase in the jurisdiction of the SAT should be accompanied by a commensurate increase in resources. Accordingly, the Committee recommended the development of a SAT funding model as soon as is practicable (refer to Recommendation 41).

The Committee’s Conclusion

8.
The Committee found the SAT to be operating efficiently and effectively and was of the view that this positive result has been due to the considerable efforts and dedication of the members and staff of the SAT. In particular, the Committee acknowledged the initiatives, work and leadership of the Honourable Justice Michael Barker, who served as the inaugural President of the SAT from 24 November 2004 to 6 February 2009.

Findings and Recommendations

9.
Findings and Recommendations are grouped as they appear in the text at the page number indicated:

Page 22
Finding 1: The Committee finds that the State Administrative Tribunal has continuing programmes to minimise public confusion about appeal forums.

Page 33
Finding 2: The Committee finds that the State Administrative Tribunal has met the objective of having less formal and more flexible procedures than the courts in Western Australia.

Page 45
Finding 3: The Committee finds that the State Administrative Tribunal is meeting the objective of providing less expensive procedures than the courts in Western Australia.

Page 46
Finding 4: The Committee finds that the State Administrative Tribunal is meeting the objective of developing best tribunal practices but recognises that this is an ongoing process.

Page 48
Finding 5: The Committee finds that the State Administrative Tribunal is meeting the objective of providing more appropriate administrative justice.

Page 60
Finding 6: The Committee finds that the State Administrative Tribunal is meeting the objective of providing more timely administrative justice and has processes to ensure that it continues to meet this objective.

Page 64
Finding 7: The Committee finds that the State Administrative Tribunal is meeting the objective of improving public accountability of official decision-making but recognises that further improvements can be made.

Page 70
Finding 8: The Committee finds that the State Administrative Tribunal is meeting the objective of appropriately using the knowledge and experience of its members.

Page 73
Finding 9: The Committee finds that the State Administrative Tribunal’s application process is generally accessible to all applicants but notes this is an area which requires constant monitoring.

Page 80
Finding 10: The Committee finds that the State Administrative Tribunal’s processes of informing and notifying parties and potential parties are effective but recognises this is an area which requires constant monitoring.

Page 85
Finding 11: The Committee finds that the State Administrative Tribunal’s practice of utilising directions hearings is effective.

Page 99
Finding 12: The Committee finds that the State Administrative Tribunal’s mediations and compulsory conferences are effective.

Page 102
Recommendation 1: The Committee recommends that the State Administrative Tribunal consider utilising an ‘intake specialist’ to prepare parties for mediations and compulsory conferences.

Page 107
Recommendation 2: The Committee recommends that the State Administrative Tribunal consider having all of its mediators nationally accredited and/or becoming a recognised mediation accreditation body.

Page 110
Finding 13: The Committee finds that the State Administrative Tribunal’s procedures for handling expert evidence are satisfactory.

Page 113
Finding 14: The Committee finds that the State Administrative Tribunal’s approach in determining whether a hearing should be public or private is satisfactory.

Page 119
Recommendation 3: The Committee recommends that rule 59 of the State Administrative Tribunal Rules 2004 be amended to make the references to the Retirement Villages Act 1992 clear.

Page 121
Finding 15: The Committee finds that the State Administrative Tribunal’s approach to awarding costs is satisfactory.

Page 130
Recommendation 4: The Committee recommends that the Criminal Investigation Act 2006 be amended to authorise the State Administrative Tribunal to possess and play audio-visual recordings of police interviews with people who are subsequently respondents in related disciplinary proceedings before the Tribunal.

Page 150

Recommendation 5: The Committee recommends that the Planning and Development Act 2005 and any other of the State Administrative Tribunal’s relevant enabling Acts be amended so that the right to apply for a State Administrative Tribunal review of a decision relating to a proposal under those Acts does not arise until after:

(a) the completion of any environmental impact assessment process under Part IV of the Environmental Protection Act 1986 which is related to the proposal;

(b) the completion of any appeals which may arise out of that Part IV process; and

(c) the expiry of any appeal periods applicable to that Part IV process.

Page 151
Recommendation 6: The Committee recommends that the State Administrative Tribunal Act 2004 and all relevant State Administrative Tribunal enabling Acts should be amended to enable the President of the State Administrative Tribunal to determine the constitution of the Tribunal in any matter.

Page 153

Recommendation 7: The Committee recommends that the Hairdressers Registration Act 1946 be amended to empower the State Administrative Tribunal to:

(a) impose a fine of up to $10,000 for a breach of that Act;

(b) impose a fine of up to $5,000 for a breach of the Hairdressers Registration Regulations 1965; and

(c) reprimand for such breaches.

Page 161

Recommendation 8: The Committee recommends that all of the State Administrative Tribunal’s relevant enabling Acts be amended:

(a) to enable either the President or a Deputy President to exercise the powers and conduct the tasks which are currently reserved for the President; and

(b) where the Tribunal panel in any matter must currently be constituted by, or include, the President, to allow the panel to be constituted by, or include, either the President or a Deputy President.

Page 182
Recommendation 9: The Committee recommends that section 24 of the State Administrative Tribunal Act 2004 be amended to expressly require the original decision-maker to provide the State Administrative Tribunal with documents and materials which are otherwise subject to legal professional privilege and/or public interest immunity.

Page 182

Recommendation 10: The Committee recommends that should the Government accept Recommendation 9 in this Report, rule 12 of the State Administrative Tribunal Rules 2004 be amended to:

(a) authorise the State Administrative Tribunal to order original decision-makers to provide documents or materials which are subject to public interest immunity to other parties or people who have been granted leave by the Tribunal to make submissions in the proceedings, unless the documents or materials are ‘protected matter’ as defined in the State Administrative Tribunal Act 2004; and

(b) prohibit the State Administrative Tribunal from ordering original decision- makers to provide documents or materials which would attract legal professional privilege to other parties or people who have been granted leave by the Tribunal to make submissions in the proceedings.

Page 182

Recommendation 11: The Committee recommends that:

(a) section 69(1) of the State Administrative Tribunal Act 2004 be amended so that the opportunity offered in that section for a person to refuse to answer a question or produce material during a State Administrative Tribunal proceeding is subject to orders and summonses to produce material under sections 35(2) and 66(4) of the Act, respectively; and

(b) the responsible Minister advise the Legislative Council whether section 69(2) of the State Administrative Tribunal Act 2004 is intended to interfere with legal professional privilege and public interest immunity.

Page 186
Recommendation 12: The Committee recommends that section 66 of the State Administrative Tribunal Act 2004 be amended to enable the State Administrative Tribunal to issue a summons for the production of a document or other material either at the initiative of the Tribunal or at the request of a party.

Page 190
Recommendation 13: The Committee recommends that section 93 of the State Administrative Tribunal Act 2004 be amended so that in minor proceedings before the State Administrative Tribunal, applicants’ elections under section 93(2), if any, are subject to the approval of the President of the Tribunal.

Page 193
Recommendation 14: The Committee recommends that section 77B of the Strata Titles Act 1985 be repealed.

Page 194
Recommendation 15: The Committee recommends that section 81(7) of the Strata Titles Act 1985 be repealed.

Page 195

Recommendation 16: The Committee recommends that section 83 of the Strata Titles Act 1985 be amended to include:

(a) strata managers; and

(b) any person in possession or control of the records of a strata company,

as additional persons against whom the State Administrative Tribunal may make an order under that Act.

Page 196

Recommendation 17: The Committee recommends that section 104 of the Strata Titles Act 1985 be amended to:

(a) remove the requirement for orders of the State Administrative Tribunal to be served on the strata company where the strata company is not involved in the proceedings; and

(b) delete the requirement for the reasons for a State Administrative Tribunal decision to be served with the order.

Page 227

Recommendation 18: The Committee recommends that the Planning and Development Act 2005 be amended to give third parties who have previously made submissions about, or objected to, a planning proposal at earlier stages of the planning approval process, and:

(a) who are directly affected by the planning proposal; or

(b) the planning proposal is a matter of public or environmental interest,

a right to initiate an application for a State Administrative Tribunal review of:

(c) the grant of planning approval;

(d) the refusal to grant planning approval;

(e) the conditions, if any, imposed on the grant of planning approval; or

(f) the amendment, revocation or suspension of the grant of planning approval.

Page 227

Recommendation 19: The Committee recommends that the Planning and Development Act 2005 be amended to give third parties who have previously made submissions about, or objected to, a planning proposal at earlier stages of the planning approval process, and:

(a) who are directly affected by the planning proposal; or

(b) the planning proposal is a matter of public or environmental interest,

a right to apply to join as parties to any State Administrative Tribunal review of the relevant planning approval decision.

Page 231
Recommendation 20: The Committee recommends that the Environmental Protection Act 1986 be amended to give third parties a right to initiate applications for State Administrative Tribunal reviews of the granting of pollution licences and works approvals.

Page 231
Recommendation 21: The Committee recommends that the Environmental Protection Act 1986 be amended by deleting section 101A(5).

Page 232
Recommendation 22: The Committee recommends that the Environmental Protection Act 1986 be amended to give third parties a right to initiate applications for State Administrative Tribunal reviews of the revocation of closure notices, environmental protection notices and vegetation conservation notices.
Page 232
Recommendation 23: The Committee recommends that the Environmental Protection Act 1986 be amended to give third parties a right to apply to join as parties to State Administrative Tribunal reviews of environmental regulation decisions.

Page 233
Recommendation 24: The Committee recommends that the State Administrative Tribunal continue to inform the public about the right to appeal its decisions.

Page 238
Recommendation 25: The Committee recommends that the Government provides adequate resources to maintain and upgrade the State Administrative Tribunal’s website.

Page 244
Recommendation 26: The Committee recommends that the Government provides adequate resources to upgrade the State Administrative Tribunal’s information technology facilities to enable the electronic lodgment of documents.

Page 245
Recommendation 27: The Committee recommends that the Government provides adequate resources to upgrade and transform all State Administrative Tribunal hearing rooms into fully electronic hearing rooms.

Page 248
Recommendation 28: The Committee recommends that the Government provides adequate resources for the upgrade and transformation of the State Administrative Tribunal into an e-Tribunal.

Page 251
Recommendation 29: The Committee recommends that the intent of recommendation 73 in Law Reform Commission of Western Australia, Project No 94, Aboriginal Customary Laws Final Report: The interaction of Western Australia law with Aboriginal law and culture, September 2006, be incorporated into the State Administrative Tribunal Act 2004.

Page 251
Recommendation 30: The Committee recommends that the State Administrative Tribunal be funded to obtain expert advice on Aboriginal and other minority cultures on a case by case basis.

Page 254
Recommendation 31: The Committee recommends that the State Administrative Tribunal provides regular and ongoing Aboriginal cultural awareness training to its staff and members.

Page 257
Finding 16: The Committee finds that, for the purposes of the State Administrative Tribunal’s application forms, the current method of identifying parties or potential parties to a Tribunal proceeding as Aboriginal people is satisfactory.

Page 258
Recommendation 32: The Committee recommends that all of the State Administrative Tribunal’s application forms should prompt the applicant to provide information about the Aboriginality of all the other parties or potential parties to the proceeding.

Page 259
Recommendation 33: The Committee recommends that the Integrated Case Management System operated by the Court and Tribunal Services division of the Department of the Attorney General be upgraded to allow the State Administrative Tribunal to collect information about the Aboriginal status of its parties electronically.

Page 261
Finding 17: The Committee finds that the State Administrative Tribunal has strategies in place to ensure that country residents who are involved in Tribunal proceedings do not need to travel to the Tribunal’s building in Perth for hearings and other proceedings.

Page 262
Finding 18: The Committee finds that the State Administrative Tribunal has strategies in place to ensure that parties or potential parties with low literacy levels are adequately assisted.

Page 263
Finding 19: The Committee finds that the State Administrative Tribunal has strategies in place to ensure that parties or potential parties whose first language is not English are adequately assisted.

Page 272
Finding 20: The Committee finds that the State Administrative Tribunal is providing adequate assistance to parties or potential parties with disabilities to obtain independent, ‘well-skilled advocacy’.

Page 274
Finding 21: The Committee finds that the State Administrative Tribunal does not always adequately minimise the power imbalances between people with disabilities and other interested persons in its proceedings.

Page 274
Recommendation 34: The Committee recommends that the State Administrative Tribunal continue to liaise with the Disability Services Commission to develop strategies to address the issue of power imbalances between people with disabilities and other interested persons in its proceedings.

Page 276
Recommendation 35: The Committee recommends that the Government provides adequate resources to relocate the State Administrative Tribunal to another, permanent location as soon as is practicable after the expiry of the lease for the Tribunal’s current premises.

Page 279
Finding 22: The Committee finds that the availability of accessible disabled parking at the State Administrative Tribunal’s premises continues to be an issue.

Page 279
Recommendation 36: The Committee recommends that the Government and the State Administrative Tribunal continue to develop strategies to increase the availability of disabled parking at, or in close proximity to, the Tribunal’s premises.

Page 282
Finding 23: The Committee finds that access to and from, and within, the State Administrative Tribunal’s premises is not ideal, particularly for people with disabilities, and continues to be an issue.

Page 282
Recommendation 37: The Committee recommends that the Government and the State Administrative Tribunal work to further improve access to and from, and within, the Tribunal’s premises, particularly for people with disabilities.

Page 284
Finding 24: The Committee finds that the waiting areas outside of hearing rooms and meeting rooms in the State Administrative Tribunal’s premises lack adequate space and privacy.

Page 284
Recommendation 38: The Committee recommends that the Government and the State Administrative Tribunal work to increase the availability of space and the level of privacy in the waiting areas outside of hearing rooms and meeting rooms in the Tribunal’s premises.

Page 286
Finding 25: The Committee finds that the State Administrative Tribunal has strategies in place to ensure that people with hearing disabilities who are involved in Tribunal proceedings are adequately assisted.

Page 289
Recommendation 39: The Committee recommends that the planning and design of new or refurbished justice complexes should have regard for the State Administrative Tribunal’s requirements.

Page 299
Recommendation 40: The Committee recommends that the Government provides appropriate funding for the State Administrative Tribunal’s staffing requirements.

Page 301
Recommendation 41: The Committee recommends that the Government and the State Administrative Tribunal develop a funding model for the Tribunal as soon as is practicable.

Page 320
Recommendation 42: The Committee recommends that the Freedom of Information Act 1992 be amended to empower the State Administrative Tribunal to conduct a merits review of the decisions of the Information Commissioner, with no further right of appeal.

Page 321
Recommendation 43: The Committee recommends that section 80 of the Guardianship and Administration Act 1990 be amended to empower the State Administrative Tribunal to review all of the decisions which may be made by the Public Trustee under that section.

Page 327
Recommendation 44: The Committee recommends that the Mental Health Act 1996 be amended to transfer the functions which are currently exercised by the Mental Health Review Board under the Act to the State Administrative Tribunal.

Page 334

Recommendation 45: The Committee recommends that the Contaminated Sites Act 2003 be amended to:

(a) empower the State Administrative Tribunal to review the decisions of the Contaminated Sites Committee which are made pursuant to the committee’s original jurisdiction under the Act; and

(b) transfer the Contaminated Sites Committee’s existing merits review jurisdiction under the Act to the State Administrative Tribunal.

Page 336
Recommendation 46: The Committee recommends that the Electricity Industry Act 2004 be amended to empower the State Administrative Tribunal to review the decisions made by the Economic Regulation Authority relating to the licensing of electricity suppliers.

Page 351

Recommendation 47: The Committee recommends that the Environmental Protection Act 1986 be amended to:

(a) empower the State Administrative Tribunal to review the decisions which are made under Part V of the Act. In reviewing these decisions, the Tribunal must have due regard to any conditions which have been imposed on the activity in question pursuant to Part IV of the Act;

(b) empower the State Administrative Tribunal to refer a review of a decision which is made under Part V of the Act to the Minister for the Environment where the Tribunal considers this appropriate; and

(c) provide that, as soon as practicable after two years from conferral of this review jurisdiction, a Legislative Council committee, whether it is an existing committee or one established for this purpose, is to conduct an inquiry into the State Administrative Tribunal’s exercise of this jurisdiction.

Page 359
Recommendation 48: The Committee recommends that the Planning and Development Act 2005 be amended to transfer the functions exercised by the Board of Valuers under that Act to the State Administrative Tribunal.

Page 359
Recommendation 49: The Committee recommends that the Planning and Development Act 2005 be amended to provide the option of a State Administrative Tribunal determination to parties to all disputes relating to injurious affection arising under Part 11 of the Act where this form of dispute resolution is not currently available.

Page 364
Recommendation 50: The Committee recommends that the Builders’ Registration Act 1939 and the Home Building Contracts Act 1991 be amended to transfer the functions exercised by the Building Disputes Tribunal under these Acts to the State Administrative Tribunal.

Page 375

Recommendation 51: The Committee recommends that the Gaming and Wagering Commission Act 1987 be amended to empower the State Administrative Tribunal to review the Gaming and Wagering Commission of Western Australia’s decisions to:

(a) refuse to renew an approval, permit or certificate under section 56 of the Act;

(b) revoke or amend an approval, permit or certificate under section 60 of the Act;

(c) cancel a supplier’s licence in relation to minor lotteries and amusements with prizes under section 104C of the Act; and

(d) refuse an application for a further supplier’s licence in relation to minor lotteries and amusements with prizes under section 104B of the Act.

Page 380
Recommendation 52: The Committee recommends that the Racing Penalties (Appeals) Act 1990 be amended to transfer the functions exercised by the Racing Penalties Appeal Tribunal of Western Australia under the Act to the State Administrative Tribunal.

Page 390
Recommendation 53: The Committee recommends that the Residential Tenancies Act 1987 be amended to empower the State Administrative Tribunal to hear ‘prescribed disputes’, as defined in section 12 of the Act.

Page 399
Recommendation 54: The Committee recommends that the Vocational Education and Training Act 1996 be amended to empower the State Administrative Tribunal to review the Training Accreditation Council’s decisions:

(a) to register and deregister training providers;

(b) to accredit, vary or cancel the accreditation of courses, skills training programmes and the qualifications which can be gained from such courses and programmes;

(c) to recognise the skills and qualifications obtained by people in Western Australia, or elsewhere, in industry, the workplace or educational institutions; and

(d) establishing the minimum competency to be provided by accredited courses and skills training programmes.

Page 408
Recommendation 55: The Committee recommends that the Government:

(a) takes note of any drafting instructions it receives from vocational regulatory bodies in relation to their disciplinary functions and powers; and

(b) undertake a review of the legislation for the vocational regulatory bodies which have had, or will have, their disciplinary functions transferred to the State Administrative Tribunal,

in order to develop a standard set of summary disciplinary functions and powers for all of these bodies in relation to minor disciplinary matters.

Page 408
Recommendation 56: The Committee recommends that, where a vocational regulatory body has had, or will have, its disciplinary functions transferred to the State Administrative Tribunal, but retains or is conferred an original jurisdiction to make minor disciplinary decisions, the Tribunal be empowered to review these decisions.

Page 414
Recommendation 57: The Committee recommends that the Child Care Services Act 2007 be amended to empower the State Administrative Tribunal to hear and determine allegations of breaches of the regulations by child care service licensees.

Page 421
Recommendation 58: The Committee recommends that the Western Australian College of Teaching Act 2004 be amended to empower the State Administrative Tribunal to review Western Australian College of Teaching decisions in relation to the regulation of teachers.

Page 421
Recommendation 59: The Committee recommends that the Western Australian College of Teaching Act 2004 be amended to provide the State Administrative Tribunal with original jurisdiction in relation to serious disciplinary proceedings against teachers.

Page 431
Recommendation 60: The Committee recommends that the Government instruct the working party which was established to review the Guardianship and Administration Act 1990 to undertake a re-examination of the structure of the Public Trustee’s supervision of alternate administrators and to consider the issue of the Public Trustee’s potential conflict of interest in supervising these alternate administrators.