The Tasmanian Civil And Administrative Tribunal (TASCAT): An Overview

When the newly established Tasmanian Civil and Administrative Tribunal (TASCAT) officially opened its doors on 5 November 2021, many years of preparation to create a “Super Tribunal” and improve access to justice in Tasmania was realised.

What is TASCAT?
TASCAT was formed through the amalgamation of nine (9) former Tribunals and Board into one statutory Tribunal. It joins the existing seven (7) other “CATs” or “Super Tribunals” that already are in existence in each Australian jurisdiction. 1 The nine bodies amalgamated were2 the:

• Anti-Discrimination Tribunal (ADT);
• Asbestos Compensation Tribunal (ACT);
• Forest Practices Tribunal (FPT);
• Guardianship and Administration Board (GAB);
• Health Practitioners Tribunal (HPT);
• Mental Health Tribunal (MHT);
• Motor Accidents Compensation Tribunal (MACT); and
• Resource Management and Planning Appeal Tribunal (RMPAT)
• Workers Rehabilitation and Compensation Tribunal (WRCT)

Essentially, the work of the former Tribunals and Board has continued largely unchanged since TASCAT commenced, the primary difference being that each of the jurisdictions now come under the umbrella of one organisation with a leadership structure headed up by a President, supported by Deputy Presidents, and a Principal Registrar, supported by Deputy Registrars.

Unlike most Tribunal amalgamations that have occurred where various components of the Tribunal continue to physically exist in different locations and it taking many years to co-locate, TASCAT is in a much more fortunate position as all former Tribunals / Board were already housed together in purpose built and accessible premises located at 38 Barrack Street in Hobart. As with the amalgamated bodies, TASCAT will continue to sit across Tasmania. During the initial stages of operations the Tribunal will be reviewing the suitability of the premises used on a regular basis outside of Hobart.

TASCAT commenced operations with a total of 106 Tribunal Members (represented by 9 full time members and 97 sessional members). Some overall member statistics include: gender: 55% are female and 45% male; location: 78 (South); 14 (North);11(NW); and 3 (interstate); qualifications: Legally qualified member (40); Psychiatrist (10); other expertise (56).

Given the workload statistics of the Tribunals and Board amalgamated to form TASCAT, it is estimated that in the first full year of operations TASCAT will deal with upwards of 5300 matters and hold in excess of 5100 hearings.

The Objectives of TASCAT
The main objectives of TASCAT, in dealing with matters over which it has jurisdiction, should, and must, pervade all aspects of the Tribunal’s operations. To state the obvious, the objects play an integral role in guiding Tribunal members in their decision making roles. However, the objectives also guide Registry operations in matters such as the accessibility of the Tribunal’s website; and ensuring that the means by which the community can engage with the Registry are flexible to suit the needs of the breadth of our community who will engage with TASCAT’s services.

The objectives are contained in s10 of the TASCAT Act and are self-explanatory:

10. Main objectives of Tribunal
(1) The main objectives of the Tribunal in dealing with matters within its jurisdiction are –

(a) in the exercise of its jurisdiction, to promote the best principles of public administration, including –

(i) independence in decision making; and
(ii) natural justice and procedural fairness; and
(iii) high-quality, consistent decision-making; and
(iv) transparency and accountability in the performance and exercise of statutory functions, powers and duties; and

(b) to be accessible by being easy to find and easy to access, and to be responsive to parties, especially people with greater needs for assistance than others; and
(c) to ensure that applications, referrals, reviews and appeals are processed and resolved as quickly as possible while achieving a just outcome, including by resolving disputes through high-quality processes and the use of mediation, conciliation and alternative dispute resolution procedures alternative dispute resolution processes, or compulsory conferences, wherever appropriate; and
(d) to keep costs to parties involved in proceedings before the Tribunal to a minimum insofar as is just and appropriate; and
(e) to use straightforward language and procedures (including, insofar as is reasonably practicable and appropriate, by using simple and standardised forms); and
(f) to act with as little formality and technicality as possible, including by informing itself in the manner that the Tribunal considers fit; and
(g) to be flexible in the way in which the Tribunal conducts its business and to adjust its procedures to best fit the circumstances of a particular case or a particular jurisdiction.

(2) In furtherance of the Tribunal’s main objectives, the Tribunal should, in relation to the conferral and exercise of the Tribunal’s jurisdiction, consult from time to time with the agencies, organisations or bodies that it considers appropriate.

In relation to the positive obligation in s 10(2) to consult from time to time with external stakeholders, a TASCAT Consultative Forum has been established. Close to 30 peak bodies and agencies representing stakeholders were invited to be part of the forum. These include organisations such as: Legal Aid; The Law Society of Tasmania; the Mental Health Council of Tasmania; the Bar Association of Tasmania; Advocacy Tasmania; and the WorkCover Board, to name but a few.

It envisaged that the Forum will meet at least twice each year and the first meeting took place on 14 December 2021. The Forum, together with the annual reporting mechanism, will also provide an avenue for the Tribunal to comply with the obligation to be transparent and accountable by providing statistics on key performance indicators (KPIs).

TASCAT’s Structure
Akin to the existing CATS around Australia, TASCAT’s jurisdictions are allocated through a structure of Divisions and Streams (sometimes referred to as Lists in other CATs). There are two (2) Divisions of TASCAT, the Protective Division and the General Division, from which stem seven (7) Streams.

The Protective Division consists of two (2) Streams: the Guardianship stream (vested with the jurisdiction previously exercised by the Guardianship and Administration Board (GAB)), and the Mental Health Stream (vested with the jurisdiction previously exercised by the Mental Health Tribunal (MHT)).

The General Division consists of the remaining five (5) Streams: the Anti-Discrimination Stream (vested with the jurisdiction previously exercised by the Anti-Discrimination Tribunal (ADT)); the Forestry Practices Stream (vested with the jurisdiction previously exercised by the Forest Practices Tribunal (FPT)); the Health Practitioners Stream (vested with the jurisdiction previously exercised by the Health Practitioner Tribunal (HPT); the Personal Compensation Stream (vested with the jurisdictions previously exercised by the Asbestos Compensation Tribunal (ACT), the Motor Accidents Compensation Tribunal (MACT), and the Workers Rehabilitation and Compensation Tribunal (WRCT)); and the Resource and Planning Stream (vested with the jurisdiction previously exercised by the Resource Management and Planning Appeal Tribunal (RMPAT)).

The Legislative Landscape
The legislative landscape for TASCAT is akin to other CATs. There is the TASCAT Act, the TASCAT Regulations, the TASCAT Rules and all of the “relevant Acts”3 and their subordinate legislation which provides the Tribunal’s jurisdictions. The key is being aware how each of these pieces of legislation interplay with each other.

It is worth noting that the TASCAT Act (not so much the Regulations and Rules) draws heavily upon the South Australian Civil and Administrative Tribunal Act 2013 (SA) which establishes SACAT, but with some significant alterations.

In many domains there has been intentional retention of provisions peculiar to an amalgamated Tribunal / Board. This intentional retention occurs through both extensive Stream specific Schedules to the TASCAT Act (See Sch 2 for the Streams within the General Division and Sch 3 for Streams within the Protective Division) and through retained provisions in relevant Acts.

An example of this would be the issue of a party’s ability to be represented in proceedings before TASCAT. Whilst the TASCAT Act allows for a party to be represented as a matter of right,4 this right is subject to a different position as outlined in the schedules to the Act relating to each Stream5 or in a relevant Act.

This approach is due to the desire not to alter positions of policy in existence within the amalgamated Tribunal/Board without appropriate community consultation having occurred. Many of these matters that may well benefit from harmonisation in future and may be attended to through further legislative reform allowing for such consultation to take place,.

“Relevant Acts” and Division Schedules prevail
It is important to be aware of s 7A of the TASCAT Act:

7A. Inconsistency with relevant Act
If there is an inconsistency between a provision of a relevant Act and a provision of this Act, the regulations or the Tribunal rules, the provision of the relevant Act prevails to the extent of the inconsistency

Similarly, s 59(7) of the TASCAT Act provides:

(7) The provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provision of this Act.

Accordingly, it is prudent to take a multiple step approach to ensuring the correct legislative position on jurisdictional matters. First, it may assist to look at the TASCAT Act to see if there is a position on the matter at hand. Then check the relevant part of the Division Schedule applicable to the Stream in question. In some cases, it may be necessary to then examine the Regulations or the Rules to the TASCAT Act. Finally, a review of the relevant Act and any subordinate legislation of the relevant Act may be necessary to ascertain finally whether anything is overruled.

This principle is common amongst the CATs as whilst it allows for an overarching position to be taken on an issue which applies to the whole of the Tribunal by default, it recognises the breadth of jurisdiction exercised by such Tribunals and the need for differentiation to be permitted to best suit the needs of proceedings in a certain Stream or List – “not one size fits all”.

The TASCAT Regulations are relatively minimal, primarily because the existing regulations to “relevant Acts” have been largely maintained. Any fees payable upon application have been retained in existing regulations apart from those applicable to the Resource and Planning Scheme which were moved to the TASCAT Regulations.6

The initial TASCAT Rules were issued by the President and will subsequently be reissued as required by the TASCAT Rules Committee.7 The rules provide for, amongst other things : guidance as to when proceedings are commenced;8 identification of the parties to proceedings in the Guardianship Stream9 (replacing the former Practice Direction on the topic); guidance as to the granting or revocation of leave for representation where applicable;10 guidance as to the reckoning, extension and abridgement of time;11 requirements as to an address for service;12 the approved forms for documents13 and the registry’s ability to accept or reject certain documents; rules as to costs orders and a default assessment rate for costs at 75% of the Supreme Court scale;14 procedure as to the issue of a summons;15 and the circumstances in which a Registrar may constitute the Tribunal.16

Transition to TASCAT Resources
To assist practitioners who may regularly appear in proceedings before TASCAT, further information as to the ramifications of the amalgamation, covering issues such as “transitional proceedings” and legal representation entitlement variations between streams, is available on the Tribunal’s website: tascat.tas.gov.au

Malcolm Schyvens
President
TASCAT

1. Australian Capital Territory Civil and Administrative Tribunal (ACAT); NSW Civil and Administrative Tribunal (NCAT); Northern territory Civil and Administrative Tribunal (NTCAT); South Australian Civil and Administrative Tribunal (SACAT); State Administrative Tribunal (SAT – WA); Queensland Civil and Administrative Tribunal (QCAT); and Victorian Civil and Administrative Tribunal (VCAT)
2. See definition of “relevant Board or Tribunal” in s 3 of the Tasmanian Civil and Administrative Tribunal Act 2020 (Tas) (“TASCAT Act”)
3. See Sch 1 to the TASCAT Act
4. s 98 TASCAT Act
5. eg. See cl 7 of Pt 4 of Sch 3 relating to representation in matters in the Guardianship Stream
6. Reg 9 TASCAT Regulations
7. r 92 TASCAT Act
8. r 5 TASCAT Rules
9. r 7 TASCAT Rules
10. r 8 and r 9 TASCAT Rules
11. r 10 and r 11 TASCAT Rules
12. r 12 TASCAT Rules
13. r 14, 15, 16 and 17 TASCAT Rules
14. r 18 TASCAT Rules
15. r 20 TASCAT Rules
16. r 22 TASCAT Rules