AGY-6641 | Civil and Administrative Tribunal of New South Wales

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Background
A Legislative Council Standing Committee on Law and Justice Inquiry into opportunities to consolidate tribunals in NSW found the “former NSW Tribunal system ‘complex and bewildering’ ”. The Inquiry recommended that “tribunals be consolidated where appropriate to improve access to justice for all tribunal users”. In response to these recommendations, “the New South Wales Government announced its decision to create a new Super-Tribunal, bringing together over 20 existing tribunals and bodies into the Civil and Administrative Tribunal of New South Wales”, in October 2012. (1)

The Civil and Administrative Tribunal of New South Wales
The Civil and Administrative Tribunal of New South Wales (also known as NCAT) was established as a statutory body on 1 January 2014 by the Civil and Administrative Tribunal Act 2015 (Act No.2, 2013), which was assented to, and proclaimed on, 4 March 2013. (2)

The Act “provided only the framework for the creation of NCAT, including the appointment of a President and a Principal Registrar before the Tribunal came into existence”. (3) The Civil and Administrative Tribunal Amendment Act 2013 (Act No.94, 2013) was assented to on 20 November 2013. The Act was partly proclaimed to commence on 20 November 2013, and the remainder on 1 January 2014. (4) The Act “extensively amended the earlier Act and provided the detailed legislative underpinnings for the Tribunal. It also extensively amended the Administrative Decisions Tribunal Act 1997 so that it became the Administrative Decisions Review Act 1997 which conferred on NCAT jurisdiction to review administrative decisions on the merits”. (5) The Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (Act No.95, 2013) was assented to on 20 November 2013, and proclaimed to commence on 1 January 2014. The Act finally, “tidied up the enabling legislation and the references to the former tribunals were replaced with references to NCAT”. (6)

The following tribunals and bodies were abolished by the amended Civil and Administrative Tribunal Act 2013 (Act No.2, 2013) and “their jurisdiction and functions became the responsibility of NCAT”: the Aboriginal Lands Council Pecuniary Interest and Disciplinary Tribunal established under the Aboriginal Lands Rights Act 1983 (Act No.42, 1983); the Administrative Decisions Tribunal of New South Wales established under the Administrative Decisions Tribunal Act 1997 (Act No.76, 1997); the Charity Referees constituted under s.5 of the Dormant Funds Act 1942 (Act No.25, 1942); the Consumer, Trader and Tenancy Tribunal of New South Wales established under the Consumer, Trader and Tenancy Tribunal Act 2001 (Act No.82, 2001); the Guardianship Tribunal established under the Guardianship Act 1987 (Act No.257, 1987); the Local Government Pecuniary Interest and Disciplinary Tribunal established under the Local Government Act 1993 (Act No.30, 1993); each Local Land Board constituted under the Crown Lands Act 1989 (Act No.6, 1989); the Victims Compensation Tribunal constituted under the Victims Support and Rehabilitation Act 1996 (Act No.115, 1996); each existing Health Practitioner Tribunal established under the s.165 of the Health Practitioner Regulation National Law (NSW) (Act No.86a); and the Vocational Training Appeal Panel established under the Apprenticeship and Traineeship Act 2001 (Act No.80, 2001). (7)

The main objective of the Tribunal was to “provide a single access point for most tribunal services in the State” of New South Wales. The general functions of the Tribunal were to:
(a) Make decisions as the primary decision-maker in relation to certain matters;
(b) Review decisions made by certain persons and bodies;
(c) Determine appeals against decisions made by certain persons and bodies;
(d) Exercise such other functions as were conferred or imposed on it;
(e) Promote public confidence in Tribunal decision-making in the State and in the conduct of Tribunal members. (8)

The Tribunal consisted of: the President (who was to be a Judge of the Supreme Court); Deputy Presidents (who were to be either an Australian lawyer of at least seven years standing, or a person who had held a judicial office in NSW, the Commonwealth or any other state or territory); Principal and Senior Members (who were to be either an Australian lawyer of at least seven years standing, or had in the opinion of the person making the appointment, special knowledge, skill or expertise in relation to any one or more classes of matters in respect of which the Tribunal had jurisdiction); and General Members (who were qualified in the opinion of the person making the appointment, by having special knowledge, skill or expertise in relation to any class of matter in respect of which the Tribunal had jurisdiction, or were capable of representing the public (or a sector of the public) or a particular organisation, body or group of persons (or class of organisation, bodies or groups of persons) in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction. By 30 June 2014, “the Tribunal’s membership, in addition to the President and the five Deputy Presidents, comprised 260 Members including Principal Members, Senior Members, and General Members”. (9)

The functions of the President were to: direct the business of the Tribunal (including determining the places and times for sittings of the Tribunal); to facilitate the adoption of good administrative practices for the conduct of the business of the Tribunal; to give directions about, and participate in the development of the practices and procedures of the Tribunal; to manage members by, developing codes of conduct, ensuring adequate training, undertaking performance management, and developing selection criteria for appointments; advise the Minister about the appointment, re-appointment and removal of members; to exercise any other functions conferred on the President by legislation. The President could also enter into agreements with Ministers, public officials and any other persons or bodies with regulatory functions in relation to any class of matter over which the Tribunal had jurisdiction. (10)

The President or Deputy President could be appointed by the Governor as the Divisional Head of one or more of the Divisions of the Tribunal. (11) A Divisional Head could establish one or more Divisional Lists in which proceedings allocated to the Division were to be entered for the purposes of managing the proceedings. (12)

The Tribunal consisted of the following Divisions: the Administrative and Equal Opportunity Division; the Consumer and Commercial Division; the Occupational Division; and the Guardianship Division. (13)

The Division Schedule provided for the composition and functions of each Division including: the qualifications and procedures for the appointment of a Division Head, and other Division members; the allocation to the Division of functions of the Tribunal in relation to the enabling legislation; the use of Divisional Lists in the Division, and the qualifications and procedure for the appointment of, and the functions of, the Manager of the List; special requirements for the constitution of the Tribunal when existing functions of the Tribunal are allocated to the Division; special requirements in relation to the powers of, and the practice and procedures to be followed by the Division; the functions of registrars in relation to proceedings in the Division; special requirements regarding appeals from decisions made by the Tribunal, or a registrar in the Division. (14)

A Rules Committee of the Tribunal was to be established to make Tribunal rules which were as flexible and informal as possible. The Committee comprised: the President; each Division Head; and such other members of the Tribunal as appointed by the President. By Mid-2014, the Committee had: “made the Civil and Administrative Tribunals Rules 2014 which were published in the NSW Government Gazette”; and “considered various minor and technical amendments to the Act and made amendments to Rule 42 of the Rules”. (15)

Internal Appeals were “required to be heard by the Tribunal constituted as an Appeal Panel”. An Appeal Panel comprised one member who was to be an Australian Lawyer, or two or more members (at least one of whom must be an Australian lawyer). An Appeal Panel was operational in the Tribunal from its establishment on 1 January 2014. (16)

A Principal Registrar, other Registrars and other staff could be “employed in the Public Service to enable the Tribunal to exercise its functions”. The functions of the Principal Registrar were to assist the President in “managing the business and the affairs of the Tribunal”; and other administrative functions conferred by legislation. Other Registrars were to exercise the functions of the Principal Registrar upon the direction of the President, or the Principal Registrar. (17)

On 1 January 2014, under the Public Sector Employment and Management (NCAT and Local Land Services) Order 2013, staff were transferred from the following agencies to the Department of Attorney General and Justice in order to enable the Tribunal to exercise its functions: the Department of Finance and Services; the Department of Trade and Investment, Regional Infrastructure and Services; the Health Professional Councils Authority Division of the Department of Health; and the Department of Premier and Cabinet. (18)

The Courts and Tribunal Services Division of the Department of Attorney General and Justice, (later known as the Department of Police and Justice, and then the Department of Justice), administered the court system, and employed registrars, who managed “the courts and tribunals and registry staff, reporting services staff, Sheriff’s Officers, library services and an Alternative Dispute Resolution Directorate”. (19)

In 2016, NCAT was divided into the following divisions: Administrative and Equal Opportunity Division; Consumer and Commercial Division; Guardianship Division and Occupational Division. (20)

On 1 July 2019 the Department of Justice was abolished, NCAT was transferred into the Department of Communities and Justice. (21)

In 2019 the NSW Court of Appeal determined that the Tribunal is not a Court of the State for the purposes of Chapter III the Commonwealth Constitution and the Judiciary Act 1903 (Cth). Accordingly, NCAT cannot exercise ‘federal jurisdiction’ of the kind referred to in sections 75 and 76 of the Constitution. (22)

By 2020 the independent decision-making role of the Tribunal was engaged by more than 160 separate Acts and subordinate legislation that conferred broad and diverse powers on the Tribunal. These powers were exercised by the four Divisions and the Appeal Panel of NCAT. By 2021, more than 170 separate Acts and subordinate legislation was engaged by NCAT. (23)

Endnotes
1. 'About Us' from the NSW Civil and Administrative Tribunal (NCAT) Website, http://www.ncat.nsw.gov.au/Pages/about_us/about_us.aspx (accessed 5 June 2016); Department of Police and Justice Annual Report 2013-2014, p.93; NSW Civil and Administrative Tribunal (NCAT) Annual Report 2014, p.4.
2. Ibid., pp.8, 10; Civil and Administrative Tribunal Act 2013, ss.2, 4, 7; 'Organisation Structure' from the NSW Civil and Administrative Tribunal (NCAT) Website, http://www.ncat.nsw.gov.au/Pages/about_us/organisation_structure/organisation_structure.aspx (accessed 5 June 2016).
3. Ibid., p.4.
4. Civil and Administrative Tribunal Amendment Act 2013, s.2.
5. NSW Civil and Administrative Tribunal (NCAT) Annual Report 2014, op.cit., p.4.
6. Loc. cit.; Civil and Administrative Legislation (Repeal and Amendment) Act 2013, s.2.
7. Ibid., p.10; The Civil and Administrative Tribunal Bill 2012, Explanatory Note, pp.1-2 from the Parliamentary Counsel's Office Website, Legislation, http://www.legislation.nsw.gov.au/bills/1be0c646-ca9d-6842-f8a5-b98800b8e1a1 (accessed 02/05/2016); Civil and Administrative Tribunal Act 2013 (as amended), Schedule 1; 'Former Tribunals' from the NSW Civil and Administrative Tribunal (NCAT) Website, http://www.ncat.nsw.gov.au/Pages/about_us/former_tribunals.aspx (accessed 5 June 2016).
8. Ibid., s.3; Ibid, p.7.
9. Ibid., ss.9, 13; Ibid, p.31.
10. Ibid., s.20.
11. Ibid., s.14.
12. Ibid., s.19.
13. Ibid., s.16, and Schedules 3-6.
14. Ibid., s.17.
15. Ibid., s.24; NSW Civil and Administrative Tribunal (NCAT) Annual Report 2014, op. cit., p.13.
16. Ibid., ss.4, 27, 32, 80; Ibid., pp.5-6, 12, 14, 23, 27; NSW Civil and Administrative Tribunal (NCAT) Annual Report 2014-2015, pp.8, 11.
17. Ibid., ss.22, 23; 'Registrars' from the NSW Civil and Administrative Tribunal (NCAT) Website, http://www.ncat.nsw.gov.au/Pages/about_us/organisation_structure/registrars.aspx (accessed 5 June 2016).
18. Public Sector Employment and Management (NCAT and Local Land Services) Order 2013 (2013 No.741) clss.1-3; Notified on NSW Legislation Website, 20 December 2013; Department of Police and Justice Annual Report 2013-2014, op. cit., pp.151, 188.
19. Ibid., pp.5-6, 12, 15, 93, 103-104, 124, 151, 172, 188; NSW Civil and Administrative Tribunal (NCAT) Annual Report 2014-2015, op. cit., p.77; 'About Us' from the Department of Justice Website, http://www.justice.nsw.gov.au/about-us (accessed 5 June 2016); 'Organisational Chart as of 2 November 2015' from the Department of Justice Website, http://www.justice.nsw.gov.au/Documents/About%20us/dept-justice-org-chart-02112015.pdf (accessed 5 June 2016);'Summary of the Administrative arrangements for the Justice Cluster (GSE Act 2013) as of 1 July 2015 (and updated on 8 September 2015)' from the Department of Justice Website, http://www.justice.nsw.gov.au/Documents/About%20us/justice-cluster-admin-arrangements-01072015-updated-08092015.pdf (accessed 6 June 2016).
20. NSW Civil and Administrative Tribunal, Annual Report 2016-2017, p.49.
21. NSW Civil and Administrative Tribunal, Annual Report 2018-2019, p.7.
22. NSW Civil and Administrative Tribunal, Annual Report 2019-2020, p.10; NSW Civil and Administrative Tribunal, Annual Report 2020-2021, p.9.
23. Administrative Arrangements (Administrative Changes—Public Service Agencies) Order 2019 (2019 No 159) cl. 10 (2); Legislation website, 2 April 2019 amended by 2019 (2019 No 180); NSW Legislation Website, 1 May 2019.