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1997
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
The Administrative Decisions Legislation Amendment Bill 1997 is cognate
with this Bill.
(a)
to establish an Administrative Decisions Tribunal and provide for its
procedures and powers, and
(b)
to enable that Tribunal:
(i)
to make decisions as the primary decision-maker under various
Acts, and
(ii)
to review decisions of administrators under various Acts, and
(iii) to exercise such other functions as may be conferred or imposed
on it by or under the proposed Act or any other Act or law, and
* Amended in committee--see table at end of volume.
to provide a preliminary process for the internal review of decisions of
administrators before the review of such decisions by that Tribunal,
and
to require administrators making reviewable decisions under various
Acts to notify persons of decisions affecting them and of any review
rights they might have and to provide reasons for their decisions on
request, and
to abolish the following tribunals:
*
the Boxing Appeals Tribunal continued under section 28 of the
Boxing and Wrestling Control Act 1986
*
the Community Services Appeals Tribunal constituted under the
Community Services (Complaints, Appeals and Monitoring) Act
I993
*
the Equal Opportunity Tribunal constituted under the
Anti-Discrimination Act I977
*
the Legal Services Tribunal constituted under the Legal
Profession Act 1987
*
the Schools Appeals Tribunal constituted under the Education
Reform Act 1990
*
the Veterinary Surgeons Disciplinary Tribunal constituted under
the Veterinary Surgeons Act 1986.
While this Bill establishes and provides for the procedures and powers of the
Administrative Decisions Tribunal, the Tribunal will have jurisdiction to deal
with a matter only if another Act (or in some cases a statutory rule under
another Act) provides for applications to be made to it in respect of the
matter. Such jurisdiction is initially conferred by the cognate Administrative
Decisions Legislation Amendment Bill 1997.
The legislative scheme proposed by this Bill and the cognate Administrative
Decisions Legislation Amendment Bill 1997 will ensure that the jurisdiction
presently exercised by the various tribunals mentioned above will be
exercised instead by the Administrative Decisions Tribunal. It also enables
the Administrative Decisions Tribunal to exercise certain jurisdiction
presently exercised by courts in relation to administrative decisions.
This Bill and its cognate Bill represent the first stage of a process aimed at
abolishing various existing tribunals and transferring their jurisdiction to the
Administrative Decisions Tribunal and amending other Acts to provide for
the review of administrative decisions.
Explanatory note page 2
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 specifies the objects of the proposed Act.
Clause 4 defines certain words and expressions used in the proposed Act.
Clause 5 defines an enactment to mean:
(a)
in relation to a reviewable decision--an Act (other than the proposed
Act) or a statutory rule (other than a statutory rule made under the
proposed Act), or
(b)
in any other case--an Act (other than the proposed Act).
Clause 6 defines decision for the purposes of the proposed Act.
Clause 7 defines an original decision of the Tribunal as a decision of the
Tribunal made in relation to a matter over which it has jurisdiction under an
enactment to act as the primary decision-maker.
Clause 8 defines a reviewable decision of the Tribunal as a decision of an
administrator that the Tribunal has jurisdiction under an enactment to review.
Clause 9 defines an administrator, in relation to a reviewable decision, to
mean the person or body that makes (or is taken to have made) the decision
under the enactment concerned.
Clause 10 provides that charts and other notes included in the proposed Act
are explanatory notes and do not form part of the proposed Act.
Chapter 2 Establishment of the Tribunal (clauses 1135)
Part 1 of this Chapter establishes an Administrative Decisions Tribunal of
New South Wales.
Part 2 makes provision for the membership of the Tribunal and the
assignment of members to the various Divisions of the Tribunal specified in
Schedule 1. The President is assigned to each Division of the Tribunal while
each Divisional Head is assigned to the Division he or she heads (and such
Explanatory note page 3
other Divisions to which the Governor assigns the Divisional Head). All
other members are assigned to Divisions by the President. However, the
assignment of a member to a Division is subject to any applicable
preconditions for assignment specified in Schedule 2. Schedule 3 makes
further general provision in respect of such matters as the terms of
appointment, remuneration, seniority and vacancy in the office of members.
Part 3 enables the Tribunal to exercise its functions in specialist Divisions
and provides for the constitution of the Tribunal to exercise its various
functions. Schedule 2 makes provision for the composition of each Division,
the allocation of matters to the various Divisions and for special requirements
for the constitution of the Tribunal in relation to certain matters.
Part 4 provides for the appointment of a Registrar, Deputy Registrars and
staff to assist the Tribunal in the exercise of its functions.
Part 5 enables the Minister to appoint assessors with specialist knowledge in
any of the areas over which the Tribunal exercises jurisdiction. The functions
of assessors include assisting and advising the Tribunal on matters before it
and conducting preliminary conferences under proposed section 34.
Chapter 3 Jurisdiction of Tribunal (clauses 3640)
The Chapter specifies the circumstances in which the Tribunal has
jurisdiction to make an original decision or review a reviewable decision. As
a general rule, the Tribunal will only have jurisdiction to make an original
decision or review a reviewable decision if an enactment confers a right on a
person to apply to the Tribunal for such a decision. It makes provision for the
resolution of conflicts between the provisions of the proposed Act and an
enactment. The Chapter also enables the Ombudsman and the Tribunal to
enter into arrangements for the transfer and referral of matters and enables
them to exercise their functions in accordance with any such arrangements.
Chapter 4 Process for original decision-making
(clauses 4146)
The Chapter outlines the process involved in making and reviewing an
original decision. It also specifies when an application for an original
decision may be made to the Tribunal and provides for the powers of the
Tribunal on any such application. These provisions, however, are subject to
any contrary provisions in the enactment under which application is brought
(see clause 40).
Explanatory note page 4
Chapter 5
Process for review of reviewable
decisions (clauses 4766)
Part 1 of this Chapter outlines the process involved in reviewing a reviewable
decision. It also explains the respective roles of the administrator who made
the decision, the Tribunal and the Supreme Court in this process.
Part 2 provides for the role of the administrator who makes the reviewable
decision.
On request, the administrator is to provide reasons for his or her decision and
to arrange for an internal review on the application of any interested person.
The administrator must, where practicable, also provide such a person with
information concerning the person's review rights. If the decision is the
subject of proceedings before the Tribunal, the administrator must furnish the
Tribunal with relevant documents (including written reasons) on which the
decision is based.
Part 3 provides for the role of the Tribunal.
The Tribunal may determine an application made to it for a review of a
reviewable decision, but generally only after an internal review has been, or
is taken to have been, completed. Subject to contrary provision being made
by any relevant enactment, the function of the Tribunal on a review is to
make the correct and preferable decision on the merits based on the material
then before it. The Part also makes provision for the application of
Government policy by the Tribunal on any such review.
The respective roles of the Supreme Court and the Tribunal in relation to
appeals from Tribunal decisions are explained more fully in Chapter 7.
Appeals may be brought under Part 1 of that Chapter to an Appeal Panel of
the Tribunal from decisions of the Tribunal at first instance. A further appeal
may be made to the Supreme Court on questions of law against decisions of
the Appeal Panel. The Chapter also makes it clear that it does not affect the
Supreme Court's inherent supervisory jurisdiction to review decisions of the
Tribunal.
Chapter 6
Procedure of Tribunal generally (clauses
67111)
This Chapter deals with matters relating to the parties to proceedings for an
application (Part 1) and with other general procedural matters (Part 2). In
particular, the Chapter provides that preliminary conferences can be
Explanatory note page 5
conducted by the Tribunal (or the member or assessor arranged by the
Tribunal) enabling the parties to confer with the Tribunal (or the member or
assessor arranged by the Tribunal) and each other on an informal basis. If the
parties reach an agreement following such a conference, the Tribunal,
member or assessor may make a determination giving effect to that
agreement.
Part 3 also enables rules concerning practice and procedure to be made by the
Rule Committee of the Tribunal. The Rule Committee will have the power to
establish a specialist Subcommittee for each Division of the Tribunal (which
may include people who are not members of the Rule Committee) to
recommend to it the making of rules specifically applicable to the Division.
Provision is also made for public consultation in the development of such
rules.
Part 4 provides for a number of alternative dispute resolution mechanisms.
The Tribunal may refer a matter arising in proceedings before it for mediation
or neutral evaluation. Mediation is a structured negotiation process in which
the mediator, as a neutral and independent party, assists the parties to a
dispute to achieve their own resolution of the dispute. Neutral evaluation is a
process of evaluation of a dispute in which the neutral evaluator seeks to
identify and reduce the issues of fact and law that are in dispute. Attendance
and participation at a mediation session or neutral evaluation session is
voluntary.
Chapter 7 Appeals from decisions of Tribunal (clauses
11 21 23)
This Chapter provides for internal appeal rights and appeals to the Supreme
Court and explains the inter-relationship between the Tribunal and the Court.
Part 1 enables a party to proceedings before the Tribunal to appeal to an
Appeal Panel of the Tribunal against an original decision (but only if an
enactment expressly provides for such an appeal) or against a review of a
reviewable decision. Such appeals are to be on questions of law only unless
the Appeal Panel grants leave for an appeal on the merits. The Part also
enables an Appeal Panel to refer questions of law to the Supreme Court for
the opinion of the Court.
Part 2 provides for appeals to the Supreme Court on questions of law from
decisions of an Appeal Panel (whether the decisions are made on appeal
under Part 1 of the Chapter or otherwise).
Explanatory note page 6
Part 3 preserves the supervisory jurisdiction of the Supreme Court in relation
to decisions of the Tribunal. However, it also confers on the Court the power
to dismiss an application for judicial review if it considers that adequate
provision is made under the proposed Act for the Tribunal to review the
decision or if an application for review has already been lodged with the
Tribunal
Chapter 8
Miscellaneous (clauses 124146)
This Chapter contains various provisions relating to the general operation of
the Act.
Part 1 contains provisions concerning the confidentiality and disclosure of
information. It includes, for instance, a provision dealing with the
inter-relationship between the proposed Act and the Freedom of Information
Act 1989.
Part 2 contains other miscellaneous provisions. These include provisions
relating to the following:
*
the authentication of documents of the Tribunal
*
the giving of notices and lodgment of documents
*
contempt of the Tribunal
the allowances and expenses of witnesses before the Tribunal
*
the review of the Act after 5 years of operation
*
the making of regulations.
Schedules
Schedule 1 lists the Divisions of the Tribunal.
Schedule 2 provides for the composition of each Division of the Tribunal,
allocates the functions of the Tribunal to the Divisions and provides for any
special requirements for the constitution of the Tribunal in relation to
specified matters.
Schedule 3 contains additional provisions relating to members of the
Tribunal.
Schedule 4 contains additional provisions relating to assessors of the
Tribunal.
Schedule 5 contains provisions of a savings and transitional nature.
Explanatory note page 7