Tribunal Review and Reform: Queensland's proposed Queensland Civil and Administrative Tribunal
Linda Pearson, of the Faculty of Law at the University of New South Wales, outlines the Queensland government plan to create an amalgamated civil and administrative tribunal.
Tribunal review and reform is firmly on the agenda in a number of jurisdictions. In March 2008 the Queensland government announced its intention to establish an amalgamated civil and administrative tribunal (to be called the Queensland Civil and Administrative Tribunal, or QCAT), which it aims to have in place by the end of 2009. The government established an independent panel to report on a number of issues, including independence, efficiency, expertise, and accessibility. The panel has released its Stage 1 report on scope and initial implementation arrangements.
Tribunal reform in Queensland has quite a long history. Nearly 20 years ago the Fitzgerald Report criticised the absence of a body to determine appeals from administrative decisions in Queensland. One of the outcomes of the Fitzgerald Report was the establishment of the Electoral and Administrative Review Commission, which in 1993 recommended the establishment of a generalist merits review body, to be called the Queensland Independent Commission for Administrative Review (QICAR). The establishment of QICAR would have reduced the number of review bodies from 130 to 26, and created appeal rights for over 1,000 decisions not then subject to review. The recommendation that a generalist review tribunal be created was subsequently endorsed by parliamentary committees in 1995 and 1999. Since then, Queensland has been overtaken, with Victoria, New South Wales, and Western Australia having established generalist merits review tribunals. There have been some reforms in the meantime, however, including the amalgamation of a number of tribunals into the Commercial and Consumer Tribunal in 2003, amalgamation of the Land Court and Land and Resources Tribunal in 2007, and changes to service delivery functions of the registries of the Guardianship and Administration Tribunal and the Children Services Tribunal.
It is clear from the Stage 1 report that Queensland intends to build on the experience in other jurisdictions, in particular Victoria and Western Australia. The report proposes that QCAT be headed by a President, who should be a Supreme Court judge, have a Deputy President who is a District Court judge or lawyer, and have a pool of members from the ranks of the judiciary who could be called upon from time to time as required. There should be a core of full time members, and part time members, to achieve both consistency and cohesion, and retain the flexibility to cope with fluctuating numbers of applications and the need for specific expertise.
The report proposes that QCAT have three divisions: a Human Rights Division, an Administrative and Disciplinary Division, and a Civil Disputes Division. The Human Rights Division could hear matters previously determined by the Guardianship and Administration Tribunal, the Children Services Tribunal and the Anti-Discrimination Tribunal. The Administrative and Disciplinary Division would have two lists, a general administrative law list including general merits review functions currently performed by the courts and other tribunals; and a disciplinary/business regulation list including disciplinary functions currently performed by individual and other tribunals such as those relating to nurses, teachers, health practitioners and legal practitioners, engineers, architects and builders, and business regulation functions such as reviews of decisions regarding liquor licences. The Civil Disputes Division could include residential tenancy disputes, minor debt claims, retail shop lease disputes, and general civil disputes currently performed by the Commercial and Consumer Tribunal. The proposed jurisdiction would leave out of QCAT what is now a significant component of the VCAT and Western Australian SAT work, namely the review of environmental and land use decision-making. The inclusion of residential tenancy disputes would make it similar to the VCAT, where residential tenancy matters constitute 70% of the tribunal's workload.
The Stage 1 report recommends that QCAT have an internal appellate jurisdiction to hear appeals from original decisions of QCAT, instead of the various current external appeals. Appeals would be as of right on questions of law, apart from matters involving a claim having a monetary value of $7500 or less, in which case the leave of the President would be required; and otherwise, would require the leave of the President. Appeals from the QCAT would go to the Queensland Court of Appeal, with leave, and only on a question of law.
The model proposed for QCAT in the Stage 1 report has many features in common with tribunal reform and amalgamation processes in other jurisdictions. The proposals reflect the various drivers of these reform processes, including the perceived need to achieve greater consistency across civil and administrative reviews in terms of process, greater efficiency through amalgamation of administrative and registry support, transparency and accessibility, and rationalisation and simplification of appeals. The drawing together of tribunals under the umbrella of the Department of Justice and Attorney-General, and away from the portfolio agencies whose decisions are subject to review, is an important step in enhancing QCAT's independence. A uniform requirement to provide reasons for decision will bring some of the tribunals proposed to be amalgamated into line with the general expectation that administrative decision-makers provide reasons. The report does not consider whether particular decisions in legislation should be subject to merits review where that right does not currently exist, and only deals with tribunals and other bodies to which a right of review or appeal is already provided. Much of the work ahead will go into determining which of the 25 tribunals and other bodies will become part of QCAT as recommended by the panel, and which other jurisdictions currently conferred on the courts will be transferred to QCAT. A report on any necessary legislative amendments required to implement QCAT is due by October 2008, with the final report expected in March 2009.
Linda Pearson teaches Administrative Law in the Faculty of Law, University of New South Wales, and is currently engaged in research on administrative tribunals. She has worked on a number of administrative review tribunals, including the Social Security Appeals Tribunal and the Migration Review Tribunal and is currently a part-time judicial member of the Administrative Decisions Tribunal of New South Wales.