12 March 1991 - Current
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL AMENDMENT BILL 2014
6 February 2014
|ASSEMBLY||Statement of Compatibility||CLARK|
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL AMENDMENT BILL 2014 Statement of compatibility Mr CLARK (Attorney-General) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006: In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter act'), I make this statement of compatibility with respect to the Victorian Civil and Administrative Tribunal Amendment Bill 2014 ('the bill'). In my opinion, the Victorian Civil and Administrative Tribunal Amendment Bill 2014, as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter act. I base my opinion on the reasons outlined in this statement. Overview The bill amends the Victorian Civil and Administrative Tribunal Act 1998 ('the act') to enhance the powers of the tribunal and to enact a new regime for expert witnesses and expert evidence. Human rights issues Human rights protected by the charter act that are relevant to the bill Fair hearing (section 24) Section 24(1) of the charter act provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. This right may be relevant to clauses 7, 14, 19 and 22. Clause 7 inserts new section 32A into the act, which provides that the principal registrar, with the prior written approval of the President, may delegate any of the principal registrar's functions under the rules to a member of staff. Clause 19 inserts new section 157A into the act, which empowers VCAT's Rules Committee to make rules which provide for certain functions of the tribunal to be performed by the principal registrar. The bill contains appropriate safeguards to ensure that the delegation of these functions is consistent with the right set out in section 24(1) of the charter act. First, under new section 157A(4), the Rules Committee is required to give consideration to whether the function is of a kind that ought to be performed by the tribunal constituted by a member rather than the principal registrar and also must specify whether the function may be delegated under section 32A (new section 157A(5)). Secondly, functions may only be delegated under new section 32A to staff members who are appropriately qualified to perform the function and with the approval of the President. Thirdly, under new section 157B the tribunal may review a decision by a principal registrar at the request of a party or on the tribunal's own initiative. This review is conducted as a hearing de novo (section 157B(3)). Finally, a registrar cannot make any orders finally disposing of a proceeding, other than orders made with consent. Clause 14 of the bill also enhances the right to a fair hearing. Clause 14 inserts a new division 8A into part 4 of the act, which empowers VCAT to order the reimbursement of fees payable in a proceeding, including a proceeding relating to a small claim. These provisions are intended to remove a disincentive for applicants with valid claims to seek justice at VCAT. Presently, applicants may be discouraged from bringing claims given the prospect of having to pay application and hearing fees. These provisions allow VCAT to make an order to reimburse the party who has substantially succeeded in the matter or following the consideration by VCAT of the issues in the proceeding and the conduct of the parties.
Clause 22 inserts a new schedule into the act to enhance the case management powers of VCAT in relation to expert evidence in proceedings, including specific powers for VCAT to place restrictions on the use of expert evidence and expert witnesses in a proceeding. For example, VCAT may require a joint experts report or take evidence from a tribunal-appointed expert. This will enable the tribunal to actively manage the use of expert evidence to address issues relating to excessive cost, complexity and delay, along with concerns surrounding the perception of, or actual, expert bias. Clause 22 therefore enhances access to VCAT and the right to a fair hearing for litigation in VCAT. Robert Clark, MP Attorney-General VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL AMENDMENT BILL 2014 Second reading Mr CLARK (Attorney-General) -- I move: That this bill be now read a second time. Speech as follows incorporated into Hansard in accordance with resolution of house: The bill implements a range of measures to support procedural and other reforms being introduced at the Victorian Civil and Administrative Tribunal. The bill enables VCAT, when exercising its review jurisdiction, to invite an original decision-maker to reconsider the decision under review. This reform is designed to allow the tribunal to bring the decision-maker back into the process, with a view to assisting resolution. The reform is expected to be of particular benefit in proceedings in the planning jurisdiction, where progress towards resolution has been made with the parties, and where the decision-maker may wish to vary its decision or substitute a decision that is acceptable, or more acceptable, to the parties. The power is based on a similar power operating in the State Administrative Tribunal in West Australia. For example, the power would allow VCAT to formally request that a local council reconsider a decision to grant a permit with certain conditions, thus providing the council itself with the opportunity
to consider a proposed resolution to the dispute, rather than having to decide whether or not to authorise council planning officers to agree to possible resolutions during negotiations at VCAT. The bill also creates a presumption that either the whole or a portion of the VCAT fees incurred in bringing a dispute to VCAT will be met by the unsuccessful party in small consumer claims as well as in owners corporation, domestic building, and residential tenancies disputes, other than residential tenancies disputes where the director of housing is a party. This will provide greater fairness in allocating responsibility for the payment of fees in a proceeding, and will also encourage a party likely to be found at fault to seek to resolve a dispute, thus avoiding or reducing the time and cost incurred by a party with a legitimate claim. The bill provides for the presumption to be displaced if VCAT determines that a different order is appropriate based on the nature of and issues in the proceedings and the conduct of the parties. Where the presumption does not apply, VCAT will have the discretion to order fees having regard to whether a party was successful in the proceedings, the nature of and issues in the proceedings, as well as the conduct of the parties. The bill also introduces a legislative scheme for VCAT in relation to expert witnesses and their evidence, modelled on the provisions that apply to the courts under the Civil Procedure Act 2010. The scheme being introduced for VCAT has been modified and simplified where appropriate to take account of the different nature of proceedings in VCAT. The bill also makes a number of changes to improve internal VCAT administration, such as expanding the rule-making power to give VCAT the flexibility to empower the principal registrar to make certain procedural orders, and to delegate certain functions to appropriately qualified staff where approved by the President. These changes will provide particular benefits to applicants in regional areas, where local registrars and staff will be given authority to make decisions that may have previously required documents to be processed in Melbourne. In all VCAT registries, the change will minimise the need for members to make low-level orders about documents and requests from parties where a request is appropriate for determination by a registrar or appropriately qualified staff member. The tribunal will retain control over which powers may be delegated, and may review a decision at the request of a party or on its own initiative. A registrar will not be able to make any orders finally disposing of a proceeding unless the parties consent. Other changes to enhance internal administration at VCAT include enabling the principal registrar to certify non-monetary orders as appropriate for filing in the Supreme Court, enhancing the tribunal's power to remove a party from a proceeding if they are no longer a proper or necessary party or their interests are not or are no longer affected by the proceeding, and simplifying the process for reconstituting the tribunal. The amendments made by this bill are a significant step in improving efficiency and reducing the cost of bringing matters to VCAT, and reinforce this government's commitment to supporting the just, efficient and effective operation of Victoria's courts and tribunals. I commend the bill to the house. Debate adjourned on motion of Ms GREEN (Yan Yean). Debate adjourned until Thursday, 20 February.