Editors --- "Establishment of the Western Australian State Administrative Tribunal" [2006] AdminRw 16; (2006) 57 Admin Review 89

• Establishment of the Western Australian State Administrative Tribunal

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Establishment of the Western Australian State Administrative Tribunal

Beginning operation on 1 January 2005, the Western Australian State Administrative Tribunal amalgamates the review, civil and disciplinary functions of nearly 50 industry and public sector boards and tribunals, as well as a number of courts. Pursuant to s 9 of the State Administrative Tribunal Act 2004 (WA), the State Administrative Tribunal’s main objectives are to review decisions as speedily and fairly and with as little formality and technicality as is practicable and to minimise the costs to parties. The Tribunal’s caseload is divided into four streams—human rights, development and resources, vocational regulation, and commercial and civil.

As a result of the Western Australian Law Reform Commission’s 1999 Review of the Criminal and Civil Justice System and the 2002 Western Australian Civil and Administrative Review Tribunal Taskforce’s Report on the Establishment of the State Administrative Tribunal, the Tribunal is modelled on the Victorian Civil and Administrative Tribunal, the New South Wales Administrative Decisions Tribunal and, to a lesser extent, the Commonwealth Administrative Appeals Tribunal.

The State Administrative Tribunal does not create a general right of appeal against administrative decisions; instead, it relies on other Acts that confer jurisdiction on the Tribunal. The State Administrative Tribunal Act also confers some limited jurisdiction upon the Tribunal. Depending on the nature of the conferral, the Tribunal exercises both original jurisdiction—in areas such as guardianship and vocational matters—and review jurisdiction.

Like the legislation establishing other tribunals, s 27 of the State Administrative Tribunal Act provides, ‘[t]he review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision-maker’ and ‘[t]he purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review’. Section 29 places the Tribunal in the position of original decision maker and allows it to affirm, vary or set aside the decision under review. In setting aside the decision, the Tribunal may either substitute its own decision or send the matter back to the decision maker for reconsideration.

Sections 20 to 24 create a framework for obtaining written reasons for a decision from the original decision maker. Under s 28, if the original decision maker relied on a lawful statement of government policy in making their decision, the Tribunal must have regard to that policy. The Tribunal is not bound by the rules of evidence and, unless expressly excluded, the rules of natural justice apply (s 32). Witnesses may be summoned (s 66), and the Tribunal’s compulsion powers relating to answering questions and producing documents are the same as those of the Western Australian Supreme Court (s 69).

In addition to the Tribunal’s ordinary proceedings, s 52 provides for mediation, private compulsory conferences and other alternative dispute resolution processes. Section 55 renders inadmissible in subsequent proceedings evidence of things said or done in a compulsory conference or mediation unless the parties agree; unless it is evidence of a formal order, direction, or reasons for that order or decision; or unless it is evidence relevant to a proceeding for an offence relating to the giving of false or misleading information, contempt or proceedings conducted with an absent party.

Although the Tribunal can order costs in favour of or against a party, the basic principle stated in s 87(1) is that each of the parties bears its own costs of proceedings in the Tribunal.

The President of the Tribunal decides who constitutes the tribunal on each occasion, but an Act conferring jurisdiction may provide for a specific number of members or for members with specific qualifications. In deciding how a Tribunal is to be constituted, the President is to have regard to a number of factors, similar to those the President of the Commonwealth Administrative Appeals Tribunal must take into account.

Section 105 sets out the general rule that a person is entitled to appeal against a tribunal decision on a question of law with leave. Section 105(13), however, allows an appeal on fact or law under a range of Acts listed in Schedule 1 of the State Administrative Tribunal Act.

In its first six months, the Tribunal finalised 83 per cent of the 897 legacy matters that were transferred to it upon its commencement and 71 per cent of the 2723 new applications. On 17 October 2005 new practices governing the Tribunal’s operation were formally introduced. The Rules Committee creates both rules and practice notes, which are designed to explain the practices of the Tribunal in the different areas of its jurisdiction.

More information about the Western Australia State Administrative Tribunal is available at <http://www.sat.justice.wa.gov.au>.