Subject to the passing of legislation, the new Queensland tribunal system will come into effect from 1 December 2009.
The Queensland Civil and Administrative Tribunal (QCAT) [Tribunal] will replace 23 current tribunals and bodies, aiming to streamline the application process and enhance the speed with which decisions are made.
The tribunals relevant to health which will be replaced are the Health Practitioner’s Tribunal and the Nursing Tribunal. It was decided not to include the Mental Health Review Tribunal because of its highly specialised function.
According to the Stage 2 report released in October 2008 by an Independent Panel of Experts (Panel) chaired by the Honourable Glen Williams AO QC, the Tribunal also aims to deliver a more accessible, efficient and high quality system of civil and administrative justice. It has been emphasised in both reports that QCAT is a tribunal and not a court, and the degree of (in)formality of the tribunal is intended to reflect this. Accordingly processes appropriate to a court may not necessarily be appropriate to the Tribunal.
The Structure
The structure of the Tribunal will entail a Supreme Court Justice as President, District Court Justice Fleur Kingham as Deputy President and a mix of sessional and full time members. According to the Panel the independence of the Tribunal will be ensured by appointing judges to the two Presidential seats. The Panel has recommended the use of a pool of members from the ranks of the judiciary to hear matters in the tribunal from time to time.
The Tribunal will also be made up of senior and ordinary members who may or may not be lawyers, depending on their appointment. The members will be appointed to specific lists depending on their expertise and experience, but the facility will be in place to use different members on different lists depending on the nature of the matter and the expertise of the member.
The Tribunal will be divided into three divisions according to subject matter: a human rights division, administrative division and civil disputes division. The Tribunal will be required to give reasons for its decisions but this may be either written or oral.
The Administrative and Disciplinary Division
The Administrative and disciplinary division will administer the Health Practitioners (Professional Standards) Act 1999, incorporating 14 other tribunals or committees which currently deal with disciplinary matters. The process will focus on the protection of the community and maintenance of the confidence of the community in the particular profession.
The disciplinary body pertinent to the legal profession, The Legal Practice Tribunal, will also be incorporated into the administrative division.
The Appeal Process
The appeal process will be internal to provide for consistency, faster processing and the development of a coherent body of law around the tribunal’s practice. Appeals on a question of law will be as of right unless the claim has a monetary value of less than $7500, in which case the leave of the President will be required. Other than for a question of law, an appeal will require the leave of the President to proceed.
Merits Review of Registration and Accreditation Decisions
The Panel recommended that review of administrative decisions of regulatory authorities based on their merits (as opposed to points of law) in regard to registration and accreditation should be included in the jurisdiction of the new tribunal. In regard to registration matters for Health Practitioners, it will be interesting to observe how QCAT works in cooperation with the new National Registration and Accreditation Scheme which is due to come into play from 1 July 2010. It is anticipated that there will be some overlap in the functions of the two bodies when practitioners are facing expulsion or suspension from their profession due to misconduct.
General Merits Review
The general merits review jurisdiction is small in terms of numbers, and it was recommended by the Panel that this function be transferred to the Tribunal with a number of exceptions including reviews of Freedom of Information decisions, which will remain with the Information Commissioner, subject to recommendations of the Freedom of Information Independent Review Panel.
Regional Nature of Tribunal
The regional nature of existing tribunals will be reflected in the new Tribunal, through the use of regional members, Magistrates and semi-retired legal practitioners as well as judicial registrars and technology. Given the size of the state of Queensland, the Panel recognised the importance of delivery of services to rural areas, particularly in view of the fact that about 50 per cent of matters are currently heard outside South-East Queensland.
Alternative Dispute Resolution (ADR)
ADR will be an essential component of the new tribunal, and it is considered by the Panel that the number of matters resolved through ADR must increase significantly if the efficiency of the Tribunal is not to be compromised.
Future Developments
It is anticipated that the Tribunal will grow as the jurisdiction of the tribunal increases in the future. This has been shown to be the case in other states, where government departments have progressively expanded the jurisdiction of comparable tribunals.
Timetabling of the introduction of QCAT appears to be reasonably on track with the passing of the Queensland Civil and Administrative Tribunal Act on 17 June 2009. A third and final stage report was due to be provided to parliament in March 2009 but as of 24 July 2009 this has not occurred.
We will watch with interest the final stages in preparation for the commencement of the Tribunal and will provide further updates relevant to clients as the need arises.
Anne Wilson
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