Quidant 1,2

As in NSW, the tribunal system in Victoria has recently undergone a major overhaul.

The Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) created a

new ‘super-Tribunal’ called VCAT, which commenced operations on 1 July 1998. In total, 15 boards and tribunals from a range of jurisdictions were amalgamated to form VCAT.⁴³

The Victorian Government’s stated reasons for creating VCAT included improving access to justice in regional areas, encouraging the use of ADR processes, and improving efficiency.⁴⁴ Like the ADT and the proposed ART, VCAT and many of its core functions are established under the VCAT Act, while the jurisdiction exercised by particular

‘lists’⁴⁵ is conferred by portfolio legislation. Yet despite extensive similarities in their enabling statutes, there are significant differences in the way that amalgamation was approached in Victoria, the implications of which are analysed in detail in Chapters 7 to 11.

The nature and scope of the amalgamation and the commitment to its success

It appears that all significant tribunals operating in Victoria were amalgamated to form VCAT. These included the Victorian Administrative Appeals Tribunal (which also heard planning matters), the Guardianship Board and the Residential Tenancies Tribunal.⁴⁶ Thus, the amalgamation process in Victoria was on a significantly larger scale than that proposed at federal level and implemented in NSW.⁴⁷

42 Whelan, above n 3, at 9605.

43 Vines, Greg, Report of the review of administrative appeal processes, Office of the State Service Commissioner, Hobart, 2003, at 27.

44 Wade, Jan, Victorian Attorney-General, “Second Reading Speech for the Victorian Civil and Administrative Tribunal Bill 1998”, Victoria, Legislative Assembly Debates, 9 April 1998, 972-975, at 973; Administrative Review Tribunal Taskforce, above n 15, at 46 to 47.

45 Different parts of VCAT are referred to as ‘lists’ rather than ‘divisions’, as in the ADT and the proposed federal ART.

46 Transitional provisions relating to, for instance, the abolition of the Victorian Administrative Appeals Tribunal and the creation of VCAT were contained in the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (Vic).

47 See Bacon, Rachel, “Tribunals in Australia — recent developments” (2000) 7(2) Australian Journal of Administrative Law 69-85; Pizer, Jason, “The VCAT — a practical overview”, a paper presented at Administrative Law Session W, conference by the Law Institute of Victoria, Melbourne, 11 September 1998.

Due to the extensive scope of the amalgamation, VCAT has one of the largest caseloads of any tribunal in Australia. In the year 2000–2001 VCAT’s caseload was 91,482.⁴⁸ Certainly, the volume of residential tenancies matters has a significant impact on VCAT’s overall workload — this List finalised a total of 71,621 matters in 2000–2001.⁴⁹ In order to maintain this caseload, VCAT had 43 full-time members (including judicial and senior members) during this period, as well as 136 part-time (or sessional) members.⁵⁰

In relation to the provision of resources by government, VCAT’s budget appropriation for 2000–2001 was $11.24 million. Additional funding of $6.31 million was provided by users of the Residential Tenancies List in the form of the Residential Tenancies Trust Fund.⁵¹ VCAT’s total budget of $19.73 million contrasts with the ADT’s budget of

$1.9 million for the same period.

Another feature distinguishing VCAT from the ADT is the ability of the Victorian Tribunal to manage its own affairs. The qualitative data presented in Chapters 7 to 11 highlights the many measures that VCAT management has taken to improve its processes and procedures and to organise the administration of the Tribunal as they have seen fit.

Whether this has occurred because of the size and budget of the organisation, the commitment of the Victorian Government to establishing an effective amalgamated tribunal, or the influence of individuals such as the President and Deputy Presidents, there is little doubt that VCAT has established itself as an important institution in the government/legal landscape in Victoria.

The function and organisational structure of VCAT

VCAT has three divisions — a Civil Division, an Administrative Division and a more recently formed Human Rights Division.⁵² Each Division comprises a number of lists

48 Victorian Civil and Administrative Tribunal, 2000–01 Annual report, VCAT, Melbourne, 2001, at 2.

49 Ibid., at 3 and 31 to 32.

50 Ibid., at 48.

51 Ibid., at 3.

52 Rule 2.01(2) of the Victorian Civil and Administrative Tribunal Rules 1998 (Vic).

responsible for hearing particular classes of matters. The Civil Division deals with matters involving civil claims, credit, domestic building, real property, residential tenancies and retail tenancies. This Division is primarily responsible for exercising VCAT’s original jurisdiction.⁵³ It operates as a ‘court-substitute’ in that it deals with citizen/citizen disputes that would ordinarily be determined by courts. Similarly, the Human Rights Division hears matters in the anti-discrimination and guardianship jurisdictions.⁵⁴

In contrast, the Administrative Division has jurisdiction to review government decisions made under a range of statutes. It conducts administrative review of decisions in areas such as land valuation, occupation and business regulation, planning and taxation. This Division includes the General and Taxation Lists, which largely subsumed the work of the Victorian AAT.

All three Divisions are supported by a registry that has been structured to cater for a tribunal of VCAT’s size. The VCAT Registry is divided into three parts: the Administrative and Civil Divisions share one group of registry staff, while the Residential Tenancy and Guardianship Lists are each serviced by their own registry staff.

VCAT has appointed three Senior Registrars to manage each part of the registry⁵⁵ which, in 2001, had a total staff of around 150. While registry staff were divided into teams serving different lists, managers retained the flexibility to borrow staff from other areas to address fluctuations in workload.⁵⁶

The membership structure of VCAT is similar to that of the Commonwealth AAT.

Division 1, Part 2 of the VCAT Act provides for the appointment of a President, Vice Presidents, Deputy Presidents, senior members and ordinary members. Like the AAT and the ADT, the President of VCAT is a judge. Members are appointed for fixed terms of five years, and senior and ordinary members may be employed on a full-time or

53 Pizer, above n 47, at 3.

54 Vines, above n 43, at 27.

55 VCAT Registry Staff Member 1 at paragraphs 37 to 43.

56 Ibid., at paragraphs 185 to 188.

part-time basis. Unlike the proposed ART, VCAT’s membership structure is dominated by members with legal qualifications. As well as the requirement that the President be a Supreme Court judge, Vice Presidents must be County Court judges, and Deputy Presidents and senior members must be experienced legal practitioners.⁵⁷

An interesting feature of VCAT’s membership structure is that well over half its members are cross-appointed to more than one list.⁵⁸ A recent VCAT Annual Report referred to the benefits of this approach as including greater career flexibility and satisfaction for members, as well as the opportunity to share different perspectives and knowledge across lists.⁵⁹ Unlike the ADT, a significant proportion of VCAT’s members are appointed on a full-time basis — in 2000–2001 24% of its 179 members worked full-time. As demonstrated in Chapters 7 to 11, these features have significant implications for the success of an amalgamation process.

Powers, processes and procedures

Under the VCAT Act, the Tribunal has discretion to regulate its own procedures.

Section 98(3) provides that VCAT can regulate its own procedures in relation to hearings, while s 98(1)(b) states that:

… the VCAT is not bound by any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures.

As to the general procedures laid down in Part 4 of the VCAT Act, almost all of these are framed in discretionary terms. According to Pizer, the degree of discretion contained in the Act gives the Tribunal the flexibility to adapt its procedures to suit the matter before it.⁶⁰ For instance, it allows issues such as guardianship to be dealt with on an informal, inquisitorial basis, while enabling complex tax matters to be conducted in an adversarial manner involving legal representatives. This potential for flexibility means the specialist

57 Note that senior members may also be appointed on the basis of “extensive knowledge or experience in relation to any class of matter in respect of which functions may be exercised by the Tribunal” — s 13(2)(b) of the VCAT Act.

58 Victorian Civil and Administrative Tribunal, above n 48, at 55 to 58.

59 Ibid., at 48.

60 Pizer, above n 47, at 8.

practices and features developed by the tribunals amalgamated to form VCAT can continue to operate in the context of the larger Tribunal.⁶¹

In addition to enabling statutes that confer jurisdiction on particular lists, Schedule 1 to the VCAT Act sets out particular practices and procedures that are to be applied in specific classes of cases. For instance, Part 5 of Schedule 1 varies the operation of the VCAT Act in relation to issues such as representation of parties and the power of the Tribunal to make declarations. Part 9 of Schedule 1 makes similar provision in relation to the constitution of the Tribunal and the role of the Public Advocate in proceedings before the Guardianship List. Thus, the practices, powers and procedures of VCAT vary to some extent from list to list.

At the same time, the VCAT Act contains several procedural provisions that apply across the Tribunal. For instance, VCAT is required to act fairly and according to the substantial merits of each case,⁶² it is bound by the rules of natural justice,⁶³ the Tribunal may inform itself on any matter as it sees fit,⁶⁴ and the Tribunal must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the relevant statutes permit.⁶⁵ This thesis argues that the existence of a number of uniform procedures and operating standards has encouraged the development of a cohesive and identifiable ‘VCAT culture’ — a development that is further explored in Chapters 9 to 11. As with the ADT, the mix of standardised and specialised procedures in the VCAT Act strikes an appropriate balance between the retention of necessary specialisation and the introduction of consistent standards.

61 The general jurisdiction, functions and procedures of the Tribunal as set out in Parts 3 and 4 of the VCAT Act vary in proceedings under certain enabling enactments. The variations to the functions and procedures of the Tribunal are set out, jurisdiction by jurisdiction, in Schedule 1 to the VCAT Act.

62 Section 97 of the VCAT Act. In addition, the Tribunal is given express powers under s 78 to make appropriate orders where one party is conducting a proceeding in a way that unnecessarily disadvantages another party.

63 Section 98(1)(a) of the VCAT Act. See also Australand Holdings Ltd v Maningham No. 1998/17667.

64 Section 98(1)(c) of the VCAT Act. The Tribunal’s powers to inform itself and gather evidence are enhanced by the fact that a person is not excused from answering questions or producing documents on the ground that doing so might incriminate the person — s 105 of the VCAT Act. See also Treverton v TAC No. 1997/6059.

65 Section 98(1)(d) of the VCAT Act. See also Thwaites v DHS No. 1997/59582.

Another noteworthy feature of the VCAT Act is the way it deals with government policy.

When undertaking administrative review, s 57 enables relevant ministers to require the Tribunal to apply a statement of policy in circumstances where two conditions are satisfied. The first is that a minister has certified that the relevant policy is applicable to the kind of decision under review. The second is that:

(a) the Tribunal is satisfied that, at the time the decision was made — (i) the applicant was aware of the statement of policy; or

(ii) persons entitled to apply for review of a decision under the enabling enactment could reasonably have been expected to be aware of the statement or policy; or

(iii) the statement of policy had been published in the Government Gazette;

and

(b) the decision-maker states in the material lodged with the Tribunal under section 49 that the decision-maker relied on the statement of policy in making the decision.⁶⁶

This provision does not permit VCAT to decline to apply government policy where this would produce an unfair outcome, or where the relevant policy is contrary to law. This differs significantly from the powers of the Commonwealth AAT and the ADT to depart from government policy in these circumstances. In relation to VCAT, s 57 had the potential to create a perception that the Tribunal is not entirely independent from the departments whose decisions it reviews. Interestingly, this is not borne out in the qualitative research set out in Chapters 7 to 11. Section 57 also potentially interferes with the VCAT’s ability to conduct de novo review. That is, it may require the Tribunal to review a decision in light of the circumstances that existed at the time the primary decision was made, rather than the circumstances existing at the time of the review.

Apart from this, the legislation provides that VCAT would conduct de novo review in most matters. As mentioned, s 98(1)(b) of the VCAT Act provides that VCAT is not bound by the rules of evidence, and s 98(1)(c) provides that the Tribunal may inform itself on any matter as it sees fit. Moreover, s 51(1)(a) states that, in exercising its review jurisdiction in respect of a decision, the Tribunal has all the functions of the primary decision-maker. These provisions are essentially the same as those in the AAT and ADT

66 Section 57(1) of the VCAT Act.

Acts which enable both Tribunals to conduct de novo review. Unlike the proposed ART, the VCAT Act places no restriction on the Tribunal’s ability to finalise matters in light of new evidence.

Features indicative of organisational culture

Like the ADT Act, the VCAT Act places emphasis on the utilisation of ADR techniques.

Division 5 of the Act enables VCAT to hold compulsory conferences and mediations, while Division 6 provides for the use of special referees who may decide, or give opinions in respect to, questions referred to them by the Tribunal. These special referees appear to perform a function similar to assessors in the ADT Act. The VCAT Act is, however, less detailed as to their precise role.⁶⁷ The Tribunal can require parties to attend one or more compulsory conferences,⁶⁸ the functions of which are:

(a) to identify and clarify the nature of the issues in dispute in the proceeding;

(b) to promote a settlement of the proceeding;

(c) to identify the questions of fact and law to be decided by the Tribunal; [and]

(d) to allow directions to be given concerning the conduct of the proceeding.⁶⁹

Sections 88 to 93 of the VCAT Act deal with mediation. Section 89 provides that a member or principal registrar may require a party to attend mediation, either personally or by a representative with authority to settle proceedings on that party’s behalf. While voluntary mediation has proved popular in the Commonwealth AAT and the ADT, compulsory mediation is not a technique employed by either Tribunal, and there has been some debate over its merits.⁷⁰

In practice, there has been a very strong emphasis on mediation within VCAT since its inception, with a number of initiatives capitalising upon the discretion provided in the VCAT Act. Specifically, VCAT management has established a Mediation Committee

67 See s 95 of the VCAT Act.

68 Section 83(1) of the VCAT Act.

69 Section 83(2) of the VCAT Act.

70 In relation to the AAT, see Evans, Rhonda, Revised draft policy — assisted resolution in the Tribunal — further issues for consideration, Sydney, 1997, unpublished, at 4. See too s 103 of the ADT Act. More generally, see Partington, Martin, “Access to justice: re-forming the civil justice system of England and Wales” (2001) 30(1) Common Law World 115-133, at 119.

responsible for promoting mediation throughout the Tribunal, and have appointed a senior member as VCAT’s Principal Mediator. The role of the Principal Mediator is to co-ordinate mediation activities within the Tribunal, including training sessions for members. In 2001 the President established VCAT Mediation Services, the role of which is to:

• list mediations and assign mediators to particular mediations, depending on their individual expertise;

• arrange appropriate professional development activities for VCAT’s mediators; and

• collect statistics that reflect the extent of VCAT’s mediation work.⁷¹

As highlighted in the qualitative data set out in Chapters 7 to 11, mediation and other forms of ADR are now regarded as one of the features of VCAT that underlines the success of the amalgamation experiment in Victoria.

The VCAT Act deals specifically with the issue of legal representation in s 62. In many ways this provision reflects contemporary debate over the merits of legal representation before administrative tribunals. As explained in Chapter 6, there is a view that legal representation encourages formalism and the development of a legalistic culture within tribunals that increases cost and delay. Others argue that vulnerable parties would be disadvantaged if they were refused legal representation, and that the presence of skilled advocates ensures natural justice.⁷²

Section 62 attempts to accommodate both these views. It provides that a party may appear personally, be represented by a professional advocate, or be represented by any person permitted by the Tribunal. In most cases, however, there are restrictions as to when parties are allowed to appear with a professional advocate.⁷³ They may only do so if another party is a professional advocate, or is represented by a professional advocate, or if all parties agree. These restrictions do not apply where the party concerned is a

71 Victorian Civil and Administrative Tribunal, above n 48, at 16.

72 See Redfern, Michael, The VCAT Bill and legal representation, Law Institute of Victoria, Melbourne, 1998 unpublished, at 8 to 16.

73 This concept is defined to include legal practitioners and others with legal experience, as well as those who have advocacy experience — see s 62(8) of the VCAT Act.

child, a municipal council, the State or a minister, a public authority, the holder of a statutory office, a credit provider or an insurer of a certain kind.⁷⁴ As such, the VCAT Act is more flexible than the proposed ART Bill, but demonstrates less commitment to representation than the ADT Act.

Another factor which can impact upon a tribunal’s organisational culture is its members.

It could be argued that the provisions in the VCAT Act requiring various classes of VCAT members to have judicial and legal qualifications had the potential to inculcate VCAT with a court-like culture. In addition, ss 10 and 11 allow the President and Vice Presidents to maintain continuing relationships with the courts from which they came while serving on VCAT. The close association between VCAT and the Supreme and County Courts was expected to have some effect on the way the Tribunal operated.⁷⁵ Indeed, features such as these led some commentators to initially question the effectiveness of VCAT as an informal, merits review tribunal:

… the VCAT has been clothed with many of the trappings of a Court. This, of course, is an interesting development that may eventually undermine the traditional rationale for the creation of Tribunals in first place: namely, to provide a cheap, quick and informal alternative to litigation in the courts.⁷⁶

However, the qualitative data gathered for this thesis indicates that other features of VCAT have provided an effective counterbalance to any curial tendencies that may have developed as a result of these statutory provisions. In particular, VCAT’s emphasis on ADR processes in relevant jurisdictions, as well as the flexibility of lists to apply different procedures in different jurisdictions, have encouraged more informal, inquisitorial modes of operating where this is appropriate.

Conclusions on VCAT

As the above discussion demonstrates, the description of VCAT that can be compiled on

As the above discussion demonstrates, the description of VCAT that can be compiled on