Ms CHARISHMA KALIYANDA (Liverpool) (16:48):
I speak in debate on the Civil and Administrative Tribunal Amendment Bill 2023. The purpose of the bill, as outlined previously, is to make miscellaneous amendments to the Civil and Administrative Tribunal Act 2013 to implement the recommendations of a statutory review. As my good colleague the member for Leppington just outlined, there is a need to ensure that tribunals like the NSW Civil and Administrative Tribunal [NCAT], which are a source of recourse and natural justice for many people without legal training or knowledge, are accessible regardless of people's level of education, whether they speak a language other than English or any other barriers that may prevent them from being able to access the tribunal as meaningfully as possible.
An area of great need that I came across recently, and about which I was contacted by members of my community, is in the strata space. In the past five years the number of applications made for mediation relating to strata claims is up by about 45 per cent, and the average wait time for a mediator is three months, with a further four months' wait time to proceed to a hearing or determination via NCAT. That is an extraordinary amount of time. Again, it is a significant barrier to ensuring that people who need to raise certain issues that are impacting on their life, such as issues with neighbours or other community members, are dealt with as practicably as possible.
To give some background on the amending bill, a statutory review of the Civil and Administrative Tribunal Act commenced in 2019. Many submissions were made by stakeholder groups and others. Roundtable discussions with select user groups were undertaken between November 2020 and February 2021 to refine the stakeholder feedback that was received and then the proposed recommendations of the review. In light of that feedback, the Department of Communities and Justice—and I note that the Minister for Families and Communities is in the Chamber—provided advice in 2023 on the proposed amendments to ensure that the terms of the Civil and Administrative Tribunal Act were appropriate to achieve its objectives. The report was tabled in December 2021 and recommended discrete amendments to the Civil and Administrative Tribunal Act 2013 to be implemented within the Government's first six months.
The review broadly determined that the objectives of the Act remain valid and that the terms of the Act remain appropriate for achieving them. There was general agreement that the tribunal has simplified the system of administrative review in New South Wales since it commenced operations in 2014, and that the high‑level framework set out by the Act provides proper flexibility. I will touch on a few aspects of the bill. Firstly, the bill will limit responsibility for ensuring that relevant material is disclosed to parties. Currently, the tribunal satisfies its obligation to ensure all relevant material is disclosed by directing the parties to exchange all relevant information at the commencement of proceedings. That practice will continue. However, it is not realistic to expect the tribunal to identify whether that has occurred in every case.
Firstly, the insertion of the words "as far as practicable" in clause 3 of the bill will simply clarify that the obligation imposed by existing section 38 (6) (a) in the Civil and Administrative Tribunal Act is not absolute. It will improve efficiency by limiting the scope for legal argument on appeal as to whether the tribunal has taken all steps to uncover all relevant material. Secondly, the bill broadens the president's power to reconstitute a tribunal. Currently, the president may only reconstitute a panel after proceedings have commenced if a member becomes unavailable, ceases to be a member or ceases to hold a required qualification. Schedule 1 [4] to the bill broadens the president's power to reconstitute a panel, which is directed to circumstances where additional members must be appointed in circumstances where the factual or legal issues in dispute are more complex than anticipated.
Broadening the president's power to reconstitute a panel during proceedings will benefit tribunal users by ensuring that matters are decided in the most efficient and effective manner possible, and it will save resources, which is a goal of the Government. Thirdly, the bill limits circumstances in which written reasons must be provided. While the requirement to give reasons is a crucial feature of the tribunal's role in determining the rights and obligations of parties, the absolute nature of the requirement means that it currently applies to minor or technical exercises of its jurisdiction, such as decisions to adjourn or make orders by consent. Decisions for which written reasons would not need to be given include: adjourning proceedings, dispensing with a hearing and determining a matter on the papers, applying the default position as to costs where parties have not argued otherwise, and making orders by consent.
Limiting this exception to those types of decisions preserves transparency, accountability and the appeal rights of parties, as reasons will still be required for substantive decisions but not for minor procedural decisions that do not determine the outcome of a case. Fourthly, the Government is carefully considering the NSW Law Reform Commission report and its recommendations on a wide range of complex legal issues related to open justice. However, the bill addresses a specific issue by amending the Civil and Administrative Tribunal Act 2013 to ensure that any prohibitions or restrictions on publication extend to sound recordings or transcripts, as they do to any other non-official reports of tribunal proceedings.
Fifthly, I turn to the difference between complaints under legal profession law and other proceedings. In its original jurisdiction, the tribunal hears complaints of professional misconduct against lawyers made by regulatory authorities. This contrasts with complaints of unsatisfactory professional conduct, which, as the less serious form of complaint under the Legal Profession Uniform Law, can be determined at first instance by regulatory authorities, such as the Law Society Council of New South Wales. The tribunal can be asked to review the determinations of regulatory authorities in its administrative review jurisdiction. While such a review is related to a complaint under the uniform law, it does not fall within the original jurisdiction. The bill clarifies that the panel need only be constituted by two legal members and a non-legal member when sitting in its original jurisdiction.
Sixthly, on non-consensual medical treatments and full panels, section 46A of the Guardianship Act 1987 enables the tribunal to authorise a guardian to override a patient's objection to major or minor treatment. Currently, the tribunal must be constituted by a three-member panel when considering such decisions. The bill will allow the tribunal to be constituted by a reduced one- or two-member panel when making such decisions, in circumstances where the application is made urgently. In practice, section 46A applications are often made when a guardianship order is being reviewed. This amendment will enable such applications to be dealt with more efficiently as part of the review process by a member already familiar with the person's circumstances. In many respects that may prevent cases from falling through the cracks, where complete knowledge of a person's circumstances is not possible or where there has been a gap in handing over the understanding of that person's circumstances.
Seventhly, the bill amends the Guardianship Act in relation to people with disabilities. Schedule 1 [21] and [22] to the bill will ensure that people with disabilities are equally protected across the guardianship division regardless of the enabling Act that applies. The bill will ensure that NCAT continues to provide a quick and effective means of solving disputes and reviewing administrative action. The bill clarifies some currently ambiguous processes, tweaks some NCAT components and bolsters its already useful role by simplifying the administrative appeals process. I began by outlining the many barriers that exist for many people in our broader community in accessing these sources of natural justice and recourses for issues they face in life. I commend the bill to the House.
