South Australia has never had a generalist merits review tribunal, relying instead on the District Court to fulfil this important accountability function. This week, the South Australian Government introduced a Bill to establish a generalist tribunal, the South Australian Civil and Adminsitrative Tribunal, or SACAT. In this post, Adelaide Law School PhD Candidate Anna Olijnyk explains the proposal.
On Wednesday, the South Australian Civil and Administrative Tribunal Bill 2013 was introduced into the House of Assembly. If the Bill is passed, South Australia will become the seventh jurisdiction in Australia (after the Commonwealth, Victoria, NSW, WA, ACT and Queensland) to have a generalist merits review tribunal. This is a decisive step in a process which has taken nearly 30 years to come to fruition. As early as 1984, the now-defunct South Australian Law Reform Committee recommended that South Australia introduce a General Appeals Tribunal, and calls for such a body have regularly been renewed. The necessary combination of political will and available funding has finally been achieved, with the 2013 South Australian Budget allocating $6.4 million over four years to set up the Tribunal.
Until now, South Australia’s closest approximation to a generalist merits review body has been the Administrative and Disciplinary Division of the District Court, established under Part 6 Div 2 of the District Court Act 1991. This Division confers on the Court a unique review jurisdiction which lies somewhere between merits review and judicial review: while the Court has power to substitute a more appropriate decision, it may only depart from the original decision if there are ‘cogent reasons’ to do so. While the Administrative and Disciplinary Division has functioned reasonably well, it is not ideal for persons seeking merits review of government decisions to have to take their case to court, with all the attendant expense, complexity and delay that can come with court proceeding. Further, these administrative reviews add to the workload of a Court whose resources are already stretched to the limit.
Further, the Administrative and Disciplinary Division is far from a ‘one stop shop’ for administrative review in South Australia. A myriad (perhaps hundreds) of specialist tribunals in South Australia conduct some form of statutory review, with review jurisdiction also conferred on the Ombudsman, Ministers and other authorities. This situation creates confusion for members of the public who must identify the available avenue(s) of review, and unnecessary duplication of administrative structures leading to wasted public funds.
The advantages of a general merits review tribunal for South Australia, then, are clear. Such a tribunal can provide those affected by government decisions with access to a single, straightforward source of relatively cheap, efficient, informal review. There are also efficiency gains for the government in consolidating the bureaucracy associated with multiple tribunals, and in reducing the case load of the District Court.
The Bill, which can be accessed here, follows a familiar structure. The Tribunal’s objectives (set out in clause 8 ) include accessibility, affordability and flexibility, together with minimal technicality, formality and delay. The Tribunal will consist of a President (who will be a Supreme or District Court judge), one or more Deputy Presidents (who must be District Court judges, or eligible for appointment as such), senior members, ordinary members and assessors. The senior and ordinary members must either be legal practitioners of at least five years’ standing, or have knowledge, expertise or experience in relation to an area in which the Tribunal exercises its powers. There is a facility for the Governor to proclaim Magistrates as members of the Tribunal, and for the Attorney-General to temporarily appoint supplementary members. For the purposes of exercising its power, the Tribunal may be constituted by between one and three members.
The Bill itself does not confer any jurisdiction on the Tribunal; instead, jurisdiction will be conferred under separate Acts. Combing through the hundreds of South Australian Acts which confer merits review powers on various review bodies, and deciding whether it is appropriate to transfer the function to the new SACAT, is likely to be a laborious task.
In one important respect, the Bill differs from the equivalent legislation in some other jurisdictions. Clause 34 provides that the Tribunal’s review is to be by way of rehearing, rather than a full de novo review. The review is to be conducted on the basis of the material before the original decision-maker, although will have discretion to admit fresh evidence or material. A de novo hearing would arguably be more consistent with the Tribunal’s aims of using simple procedures which minimise the need for legal representation, and acting with as little formality and technicality as possible.
Despite these reservations, the Tribunal promises to be a welcome and overdue addition to South Australia’s administrative law landscape. Together with the recently established Independent Commissioner Against Corruption and the Office of Public Integrity, the Tribunal will form part of a key group of government accountability institutions, and will bring South Australia into step with other jurisdictions.
Anna Olijnyk is a PhD Candidate at the Adelaide Law School, University of Adelaide researching the constitutional implications of mega-litigation. She teaches in Australian Constitutional Law and Administrative Law.