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12 March 1991 - Current

Page 225
6 February 2014
ASSEMBLY Statement of Compatibility CLARK
                           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.
  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
  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

  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

                                 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
  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

Page 226
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.