A Single Tribunal: Discussion Paper. September 2015

A Single Tribunal for Tasmania DISCUSSION PAPER
September 2015
Contents DISCUSSION PAPER FOR A SINGLE TRIBUNAL FOR TASMANIA
Table of Contents 2
Overview and Summary 3
Glossary of terms 9
Chapter One: The Present Situation in Tasmania 11
Chapter Two: The "Vines Report" and research conducted by TARAC 70
Chapter Three: Theory, Best Practice and Models of Amalgamation 75
Chapter Four: History of Tribunal Amalgamation and Overview of Other
Australian Jurisdictions 83
Chapter Five: Consultation with the Department of Justice 101
Chapter Six: Analysis and Recommendations 105
Chapter Seven: Annexures 131
Overview and Summary
OVERVIEW 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. This paper is to examine whether
amalgamation presents an opportunity to benefit not only the Tribunals,
with respect to resourcing and capacity building, but also the community
through better access to justice and delivery of services. Terms of Reference The scope of this project was to prepare a Discussion Paper as Stage One of
a two stage process. The Discussion Paper was to present research into the
amalgamation of Tribunals and the suitability of a single tribunal for the
Tasmanian jurisdiction. Stage One entails examination of the scope,
legislative framework, structure and leadership/governance. Consultation
within the Department of Justice formed part of the research and analysis. If government determined to proceed further with the recommendations
contained in this Discussion Paper, then Stage Two would involve a detailed
analysis of cost, location, staffing, and legislative drafting, with
oversight provided by a steering committee. Stage Two would include broad
consultation with the community and across government. It would also allow
a second opportunity of consultation with those originally consulted in
Stage One. This final Options Paper would provide a series of policy
options to government, with full costing and detailed discussion of each
option.
The Policy Objectives of this analysis are to investigate: Improving delivery of dispute resolution services and access to justice for
the Tasmanian community, by creation of a 'one-stop shop' for dispute
resolution of administrative decisions. Streamlining of administrative structures of Tribunals where appropriate,
while also retaining necessary specialist features of those Tribunals. Providing economies of scale through amalgamation, which then supports: o flexibility in staffing, budget and resource allocation o access to shared facilities, staff skills and technology o greater opportunity for staff development, advancement and
training o providing economic savings over time and o greater efficiency in the use of resources. Progressing the use of Alternative (Appropriate) Dispute Resolution
services across Tribunal processes. Providing greater consistency in decision making and processes. Achieving greater efficiency and reduction of red-tape through centralized
registry functions and more generalized processes where appropriate. Developing options which are appropriate to the Tasmanian Jurisdiction in
terms of scale, cost and structure. Ensuring careful analysis is conducted before pursuing a single tribunal
policy, and that all relevant stakeholders have been consulted and involved
in the decision making process. Chapter 1: The Present Situation in Tasmania Tasmania has over 25 different administrative decision making bodies in the
form of Tribunals, Boards and Commissions across Government. Many of these
bodies have small outputs supporting 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 providing registry support on a pro-
bono basis. Divergent appeal paths 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 2000 and Water and Sewerage Industry Act
2008 for example. Some amalgamations have already taken place with several Tribunals but
those amalgamations have been ad-hoc rather than as part of a coordinated
overall plan.[1] Whilst the changes are conducive to a greater process of
amalgamation, they need to be reviewed as part of a comprehensive analysis. With such a diverse range of decision makers, each with their own separate
processes and locations, and multiple appeal rights to different bodies, it
can be seen why it has been a long standing policy concern that Access to
Justice is diminished by these arrangements. Chapter One of this paper
explores the current situation in greater detail including those existing
decision makers which may or may not be suitable for amalgamation.
Chapter 2: The "Vines Report" and research by TARAC The Tasmanian jurisdiction has previously researched the prospect of a
Single Tribunal for Tasmania. Mr G Vines, the then State Services Commissioner, in April 2003 released a
report titled "Report of the Review of Administrative Appeal Processes".
The "Vines Report" provided a series of recommendations for Government,
based on the analysis contained therein[2], central among them being the
formation of a Civil and Administrative Appeals Tribunal for Tasmania. Subsequent to that report, in August 2004, the then Attorney-General Judy
Jackson formed the Tasmanian Administrative Review Advisory Council (TARAC)
to provide advice to the Attorney-General regarding reform of
administrative law functions in Tasmania. Chapter Two of this Paper examines the Vines Report along with a summary of
TARAC's research and work. Chapter 3: Theory, Best Practice and Models of Amalgamation This chapter examines Tribunals and their functions and place within the
State. Literature reviewing single tribunal formation, including
theoretical work and papers for reform, has appeared over the years since
amalgamation has been implemented in other jurisdictions. Drawing from
that material, Chapter Three seeks to map the key aspects of successful
amalgamation and provide a considered basis for Stage Two of investigating
costs, structure, location and other practical issues.
Chapter 4: History of Tribunal Amalgamations and Overview of Other
Australian Jurisdictions Tasmania is the only state of Australia lacking a unified tribunal. That,
in and of itself, is not a reason to form such a tribunal but it raises the
question whether Tasmania is missing out on a significant opportunity for
reform which will benefit many different groups. The advantage of being the last state to implement such a reform is that
material and experience from other jurisdictions is available for
consideration. It means lessons from their experiences can inform the
decision making processes of this jurisdiction. Chapter Four describes the formation of single tribunals in other
jurisdictions and salient lessons learned from those experiences. The
summary has been informed by review of the reports prepared in those
jurisdictions (web-links to copies of some of those reports are provided in
Annexure 7. Some are no longer available on-line.)
Chapter 5: Consultation within Department of Justice As part of the preparation of this Paper, multiple interviews were
conducted with relevant stakeholders within the Department of Justice.
Chapter Five provides an overview of that process and notes those
individuals and organisations that were consulted in development of this
Paper. If Stage Two is approved, further consultation beyond the
Department of Justice would be recommended as part of final preparation of
an Options Paper.
Chapter 6: Analysis and Recommendations Chapter Six of the Paper will contain a series of recommendations for
Government as to the future direction of analysis and assist in forming the
Terms of Reference for the Steering Committee in developing a detailed
Options Paper. The recommendations will draw from the study, research and
analysis contained in the previous Chapters of this Paper.
Chapter 7: Annexures Chapter 7 will annex Reports and material referred to in the substance of
the Discussion Paper and which will be important in understanding the
conclusions drawn. Executive Summary As a result of this preliminary investigation and consultation across the
Department of Justice, it is recommended that Stage Two of this
investigation should be authorised. Consultation to date has demonstrated
that formation of a single tribunal in Tasmania is widely supported within
the Department of Justice. Amalgamation of Tribunals presents an
opportunity for a range of benefits to the community, professionals and
staff and members of the Tribunals: It has the capacity to avoid continued proliferation of tribunals, boards and other administrative
decision makers; provide an established body which can be vested with any future
administrative decision making required by Government which is adaptable
and properly resourced[3]; improve access to justice for the Tasmanian community; provide greater uniformity and consistency in processes and decision
making, while retaining the important specialist features of specialist
tribunals; reduce inefficiencies in existing arrangements by consolidating resources; improve flexibility and capacity building for tribunal services; and provide an independent and impartial body for dispute resolution services,
generating the highest confidence of that service, in the Tasmanian public. The preparation of an Options Pape