Running an Administrative Review Case in ACAT

1. Running an Administrative Review Case in ACAT ACT Civil and Administrative Tribunal

2. Overview • ACAT's jurisdiction • Making an Application • Reviewable Decision • Standing • ACAT’s processes and case management • Decision • Costs • Appeals

3. ACAT’s powers • ACAT powers or jurisdiction is conferred by legislation or what is called ‘authorising laws’ • The right to make an application to ACAT to review a decision is set out in the authorising laws. Such decisions are called ‘reviewable decisions’ • ACAT has its own act -- the ACT Civil And Administrative Tribunal Act 2008 however, section 11 of that Act says that the right to make an application to the tribunal is subject to any condition stated in the authorising law • There are many authorising laws which confer jurisdiction upon ACAT.

4. Examples of Authorising Laws • Adoption Act 1993Agents Act 2003Animal Diseases Act 2005Animal Welfare Act 1992Annual Leave Act 1973Architects Act 2004Associations Incorporation Act 1991Births, Deaths and Marriages Registration Act 1997Board of Senior Secondary Studies Act 1997Boxing Control Act 1993Building Act 2004Canberra Institute of Technology Act 1987Casino Control Act 2006Cemeteries and Crematoria Act 2003Charitable Collections Act 2003Children and Young People Act 2008Civil Partnerships Act 2008Classification (Publications, Films and Computer Games) (Enforcement) Act 1995Clinical Waste Act 1990Common Boundaries Act 1981Community Title Act 2001Construction Occupations (Licensing) Act 2004Consumer Credit Act 1995Consumer Credit (Administration) Act 1996Cooperatives Act 2002Court Procedures Act 2004Credit Act 1985Crimes (Child Sex Offenders) Act 2005 Dangerous Substances Act 2004Discrimination Act 1991Domestic Animals Act 2000Drugs of Dependence Act 1989Duties Act 1999Education Act 2004Electoral Act 1992Electricity (Greenhouse Gas Emissions) Act 2004Electricity Safety Act 1971Emergencies Act 2004Environment Protection Act 1997Executive Documents Release Act 2001Fair Trading (Consumer Affairs) Act 1973Financial Management Act 1996Firearms Act 1996First Home Owner Grant Act 2000Fisheries Act 2000Food Act 2001Freedom of Information Act 1989 Gambling and Racing Control (Code of Practice) Regulation 2002Gaming Machine Act 2004Gas Safety Act 2000 and Gas Safety Regulation 2001Gene Technology (GM Crop Moratorium) Act 2004Guardianship and Management of Property Act 1991Hawkers Act 2003Health Act 1993Health Regulation 2004Health Professionals Act 2004Hemp Fibre Industry Facilitation Act 2004Heritage Act 2004Housing Assistance Act 2007Interactive Gambling Act 1998Intoxicated People (Care and Protection) Act 1994Lakes Act 1976Lands Acquisition Act 1994Land Tax Act 2004Legal Aid Act 1977Legal Profession Act 2006Liquor Act 1975Litter Act 2004Long Service Leave Act 1976Long Service Leave (Building and Construction Industry) Act 1981Long Service Leave (Contract Cleaning Industry) Act 1999Medicines, Poisons and Therapeutic Goods Act 2008Mental Health (Treatment and Care) Act 1994Motor Sport (Public Safety) Act 2006Nature Conservation Act 1980Occupational Health and Safety Act 1989Ombudsman Act 1989Payroll Tax Act 1987Pests Plants and Animals Act 2005Planning and Development Act 2007Prohibited Weapons Act 1996 Public Health Act 1997Public Health Regulation 2000Race and Sports Bookmaking Act 2001Racing Act 1999Radiation Protection Act 2006Rates Act 2004Residential Tenancies Act 1997Road Transport (Alcohol and Drugs) Act 1977Road Transport (Dimensions and Mass) Act 1990Road Transport (Driver Licensing) Act 1999Road Transport (General) Act 1999Road Transport (Public Passenger Services) Act 2001Road Transport (Safety and Traffic Management) Act 1999Road Transport (Third-Party Insurance) Act 2008Road Transport (Vehicle Registration) Act 1999Road Transport Charges (Australian Capital Territory) Act 1993 (Cwlth) Road Transport Reform (Dangerous Goods) Act 1995 (Cwlth) Road Transport Reform (Vehicles and Traffic) Act 1993 (Cwlth) Roads and Public Places Act 1937Sale of Motor Vehicles Act 1977Security Industry Act 2003Stock Act 2005Surveyors Act 2007Taxation Administration Act 1999Tobacco Act 1927 Trade Measurement Act 1991Training and Tertiary Education Act 2003Tree Protection Act 2005Unit Titles Act 2001Utilities Act 2000Victims of Crime Regulation 2000Waste Minimisation Act 2001Water and Sewerage Act 2000Workers Compensation Act 1951

5. (a) to resolve a wide range of matters arising under legislation (b) to ensure that access to the tribunal is simple and inexpensive, (c) to ensure that applications are resolved as quickly as is consistent with achieving justice; (d) to ensure that decisions of the tribunal are fair ... ACAT – Objects... Section 6 ACT Civil and Administrative Tribunal Act 2008

6. Making an application - timing • Section 10 ACAT Act – generally 28 days after the decision is made • ACAT has power to extend time to for up to 56 days under rule 7 of the ACAT Rules if reasonable grounds are shown but... • special rules apply for third party objectors in planning matters – s409 Planning and Development Act – ACAT application must be lodged within 20 working days of the decision and ACAT cannot extend this time under rule 7 • ACAT must decide an application to review decisions under the Heritage, Planning and Development and TreeProtection Acts within 120 days – s22P ACAT Act

7. Reviewable decision • Founds ACAT’s jurisdiction in administrative review matters • Look at the legislation, especially the lists of reviewable decisions in the schedules - examples: • Heritage Act 2004 (sections 111 -- 114, Schedule 1) a decision to register or not register a place or object • Planning and Development Act 2007 (sections 407 -- 410, Schedule 1) -- a decision to approve or refuse a development application • Taxation Administration Act 1999 (section 108A and Schedule 1) -- decision about an objection • Tree Protection Act 2005 (sections 107-107B, Schedule 1) -- a decision to refuse or approve the registration of the tree or an activity in relation to a tree

8. Reviewable decision (cont.) • a decision may be subject to internal review • watch out for the detail when assessing if ACAT has jurisdiction – some decisions are exempted in the regulations – e.g. Schedule 3 of the Planning and Development Regulation excludes the town centres and the Kingston Foreshore from ACAT’s jurisdiction in third party reviews

9. Standing • Does the authorising law permit that person or organisation to commence proceedings in ACAT? • Look at the lists in the authorising laws again – some are prescriptive e.g. Planning and Development Act but others are more flexible e.g. s136B Environment Protection Act – entities listed in the schedule + "any other person whose interests are affected by the decision”. • Power in s29(5) ACAT Act exists alongside these provisions to allow ACAT join a party to the proceedings if a person has an interest in the application

10. Processes and Case Management in ACAT • Each case is individually managed and every case will run slightly differently • The events prior to hearing are managed by a presidential member (the case manager) and the registry • The case manager will make directions or orders about the matter (e.g. a timetable) that must be complied with by the parties • Members are formally allocated to conduct the hearing and they are often different to the case manager. • ACAT is not bound by the rules of evidence (section 8 ACAT Act) but the hearings are structured – see below

11. Processes and Case Management - Events • 1. tribunal documents (‘T docs’) direction • 2. first directions hearing • 3. mediation • 4. applicant’s facts and contentions • 5. respondent’s facts and contentions • 6. applicant’s reply • 7. final directions hearing • 8. hearing

12. Processes and Case Management - Approaches • Tribunal documents (T docs) direction • After the application is filed, the registry checks the application and the case manager makes a direction that the respondent (the government agency) give a statement of reasons and all documents that are relevant to the decision under review. • The T docs direction will be for 14 days in planning, heritage and tree protection matters and 28 days for all other matters • Sometimes an ‘interested entity’ (IE) direction is made - the respondent has to let interested people know about the ACAT application and the time that the IEs need to apply to be joined 1. T docs direction 2. first directions hearing 3. mediation 4. applicant’s facts and contentions 5. respondent’s facts and contentions 6. applicant’s reply 7. final directions hearing 8. hearing

13. Processes and Case Management - Approaches • First directions hearing • the parties meet with the case manager at the Tribunal • listing notices are sent by the registry to advise the date and time. Designed to occur just after the T docs have been given • preliminary matters • e.g. have all the T docs been provided? Who is representing the parties? Is there a challenge to the Tribunal's jurisdiction? • set the timetable to progress the matter to hearing • Should a mediation occur? • How long is the hearing likely to take? 1. T docs direction 2. first directions hearing 3. mediation 4. applicant’s facts and contentions 5. respondent’s facts and contentions 6. applicant’s reply 7. final directions hearing 8. hearing

14. Processes and Case Management - Approaches • Mediation • an opportunity to discuss the dispute confidentially before a mediator at the Tribunal. Everything said in the mediation or a document prepared for the mediation cannot be put into evidence in the hearing (section 9 Mediation Act 1997) • Obligation to participate genuinely and constructively - embrace the process • authority to settle - do the attendees have authority to bind a party to an agreed outcome? • different mediators have different styles 1. T docs direction 2. first directions hearing 3. mediation 4. applicant’s facts and contentions 5. respondent’s facts and contentions 6. applicant’s reply 7. final directions hearing 8. hearing

15. Processes and Case Management - Approaches • Facts and contentions • Facts + contentions (Fs + Cs) - written documents that set out the facts and the arguments that a party relies upon to say why the decision should be overturned or confirmed • Witness statements – signed statement made by a witness when a party is relying on someone else’s knowledge or opinion • Reply – when applicant addresses arguments that have been made in the respondent’s Fs + Cs that were not originally made in the applicant’s Fs + Cs 1. T docs direction 2. first directions hearing 3. mediation 4. applicant’s facts and contentions 5. respondent’s facts and contentions 6. applicant’s reply 7. final directions hearing 8. hearing

16. Processes and Case Management - Approaches • Final directions hearing • check that everything has been filed • consider whether a party will file a ‘list of authorities’ e.g. previous cases they will be relying upon in support of their arguments • By this stage the parties’ cases should be fully prepared and each party should know the case that he/she has to meet • final preparation for hearing e.g. arrange view 1. T docs direction 2. first directions hearing 3. mediation 4. applicant’s facts and contentions 5. respondent’s facts and contentions 6. applicant’s reply 7. final directions hearing 8. hearing

17. Processes and Case Management - Approaches • Hearing • Note: This is general outline – there will be variations in the way that hearings are conducted by individual members • View e.g. for planning cases • Opening statements – short statements by each party outlining his/her case • Applicant's case – evidence and witnesses • Respondent's case - evidence and witnesses • Party joined’s case - goes with his/her team • Final submissions 1. T docs direction 2. first directions hearing 3. mediation 4. applicant’s facts and contentions 5. respondent’s facts and contentions 6. applicant’s reply 7. final directions hearing 8. hearing

18. Decision • If the decision is to be written, it will be reserved at the end of the hearing • The decision may be delivered orally (ex tempore) e.g. if interlocutory or time constraints • Proceedings are recorded and ex tempore decisions are therefore available on a transcript • Tribunal conducts merits review, therefore ‘stands in the shoes of the decision maker’ to re-make the decision • Tribunal may consider all evidence up to the time of the final hearing • Interested in the merits of the decision rather than alleged errors made by the original decision maker • distinguish judicial review which determines whether the decision was properly made – this occurs in the Supreme Court

19. Costs • General rule – parties pay their own costs – section 48 ACAT Act – interpreted strictly CIC Australia Ltd v ACTPLA, Mainore Pty Ltd and ACAT [2013] ACTSC 96 • But costs may be ordered where obstruction or unreasonable delay has occurred before or while the Tribunal is dealing with the application - section 48(2)(b) ACAT Act • Or where an application under the Heritage, Planning and Development, Tree Protection Acts is found to be frivolous and vexatious section – section 48(2)(d) ACAT Act

20. Appeals • ACAT has its own internal appeals division – Div 8.1 ACAT Act • But section 79(2) ACAT Act – appeal provisions do not apply to applications for review under the Heritage, Planning and Development or the Tree Protection Acts, so they must go to the Supreme Court • Referrals and removals to the Supreme Court are also available under sections 83 and 84 of the ACAT Act