a single tribunal for tasmania: discussion paper tascoss comments

Authorised by Kym Goodes, Chief Executive For inquiries Kath McLean Senior Social Policy & Research Officer [email protected]

A single tribunal for Tasmania: Discussion paper TasCOSS comments 30 September 2015 About TasCOSS TasCOSS is the peak body for the Tasmanian community services sector. Its membership comprises individuals and organisations active in the provision of community services to low income, vulnerable and disadvantaged Tasmanians. TasCOSS represents the interests of its members and their clients to government, regulators, the media and the public. Through our advocacy and policy development, we draw attention to the causes of poverty and disadvantage and promote the adoption of effective solutions to address these issues.

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TasCOSS comments on A single tribunal for Tasmania: Discussion paper, September 2015

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The Tasmanian Council of Social Service (TasCOSS) welcomes the opportunity to comment on the Tasmanian Government’s discussion paper, A Single Tribunal for Tasmania.

TasCOSS supports the two stage consultation process which includes an initial discussion paper followed by an options paper. Given this approach, our initial submission will outline a number of concerns we have that we trust will be considered in drawing together options for the second stage of consultation. TasCOSS intends to provide a response, based on consultation with our members, to the options presented in the next stage of this process.

In general TasCOSS supports the move towards establishing a Tasmanian Civil and Administrative Tribunal with the resultant ‘greater efficiencies’, ‘economies of scale’ and ‘economic savings over time’ in the delivery of its services.1 However, we believe that cost savings should not be the only determining factor for amalgamation of tribunals, or the only goal of a single tribunal. It is our view that other issues are equally, if not more important.

Access to justice

TasCOSS believes that it is essential that the Government ensures that any reforms undertaken improve access to justice for all Tasmanians. The creation of a single tribunal provides an opportunity, through promotion of the new structure, to educate the Tasmanian public about the role and functions of a civil and administrative tribunal, and its relevance to their lives.

Adequate funding must be provided at the outset for a broad community education campaign to both inform the public of the changes and promote access to the tribunal.

TasCOSS considers that there is a clear role for the State Government to ensure that access to justice through the tribunal is particularly promoted to disadvantaged Tasmanians as a right.

Further, it is vital that costs to access the tribunal be kept to a minimum so that cost does not become a barrier to access.

Link to human rights

With regard to access to justice, it is worth noting that of the Australian states and territories already operating under an integrated tribunal system, both the Australian Capital Territory (ACT)2 and Victoria3 have enacted human rights legislation to which their relevant tribunals are subject.

1 A Single Tribunal for Tasmania: Discussion Paper, September 2015 2 Human Rights Act 2004(ACT) 3 Charter of Human Rights and Responsibilities Act 2006 (Victoria)


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In Victoria for example, the Victorian Civil and Administrative Tribunal (VCAT) is subject to the Charter of Human Rights and Responsibilities Act 2006 (Vic) under two separate provisions. Firstly, under section 32(1), when interpreting and applying the provisions of the Victorian Act, the Tribunal is required to keep Charter Rights in mind and consider whether the legislative provisions can be construed both consistently with their purposes and compatibility with human rights. Secondly, as a public authority when acting in an administrative capacity (under section 4), the tribunal must not fail to give proper consideration to a relevant human right under section 38 (1) of the Charter.

TasCOSS believes that a Tasmanian Charter of Human Rights would complement and strengthen the work of a Civil and Administrative Tribunal in the State.

A Charter of Human Rights has been considered for Tasmania and has been the subject of several public consultations. The Tasmanian Law Reform Institute found through its public consultations held in 2006-07, that ‘Of the submissions received [407 submissions] the vast majority (94.1%) supported the enactment of a Charter of Human Rights’.4 This was reflected in the final recommendation made by the Institute in 2007.

Further consultation was held in 2010 by the Department of Justice to which TasCOSS submitted, in part:

TasCOSS strongly supports the introduction of legislation to protect human rights in Tasmania and recognises the potential this has both to increase community awareness of human rights and to promote a strong culture of respect for the rights of all Tasmanians. It is our view that a Tasmanian Human Rights Act will also contribute significantly to promoting social inclusion and equity and will demonstrate a positive commitment by the government of Tasmania to valuing and respecting the rights of all.5

TasCOSS considers that a Tasmanian Civil and Administrative Tribunal has extraordinary potential to realise and protect human rights if coupled with the introduction of a Tasmanian Human Rights Charter which is now, in our view well overdue.

Importance of a ‘Protective Division’

TasCOSS supports the recommendation made in the Discussion paper for the establishment of ‘Protective Division’ as one of two separate divisions within a new Tasmanian Civil and Administrative Tribunal.

4 University of Tasmania 2007, Media release: Charter of Rights recommended for Tasmania, 12 Oct 2007 http://www.utas.edu.au/__data/assets/pdf_file/0005/283730/Human_rightsfinalversion_media.pdf, accessed 29 Sept 2015. 5 TasCOSS Response to Human Rights Charter Legislative Project Directions Paper January 2011 http://www.tascoss.org.au/Portals/0/Documents/Social%20Policy/TasCOSS%20Human%20Rights%20Charter%20submission%20Jan%202011.pdf accessed 27 Sept 2015


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Such a division would incorporate specialist functions such as guardianship & administration, anti-discrimination, child protection and any other jurisdictions of a sensitive and personal nature or where particularly vulnerable people are involved. It might also include the Mental Health Tribunal if it is decided to incorporate that tribunal in the new structure (see our further comments on this below).

The establishment of a ‘Protective Division’ is vital in our view to ensure that sensitive matters and/or those concerning vulnerable individuals are dealt with by appropriately trained specialist staff in a flexible manner.

It appears that other states and territories have recognised this imperative and have divided their tribunals accordingly. Interestingly, according to the Discussion Paper, several states, including Victoria, Western Australia and Queensland have ‘Human Rights divisions’ within their civil and administrative tribunals that deal with related issues. TasCOSS sees this as further recognition of the link between tribunal functions and human rights – and adds weight to the need for enactment of overarching legislation to protect human rights in Tasmania.

Need to maintain expertise

TasCOSS is concerned to ensure that in the move to a single tribunal, specific area expertise is not lost. There is clearly a need to maintain appropriate expertise across the various jurisdictions within a centralised tribunal. While it is important that all matters before the tribunal are dealt with by people with appropriate skills, background knowledge and expertise, TasCOSS believes that it is particularly important in the protective division where vulnerability is high and issues are likely to be both sensitive and personal.

The concern expressed by the Tasmanian Mental Health Tribunal (MHT) to the proposal for a single tribunal supports our view:

The core issues for the MHT itself … relate to possible impairment of the existing specialised services and processes of the Tribunal as they currently stand and potential loss of expertise of members, and staff, as a result of amalgamation.6

TasCOSS believes that it is important that the ‘one-stop shop’ tribunal model recognises the need for specific jurisdictional knowledge and expertise and does not attempt to deliver services where ‘one-size fits all’.

The employment of a large number of members, including sessional members in tribunals in other states and territories demonstrates the need for a single tribunal to have access to a wide range of knowledge and expertise both in-house and at-call.

TasCOSS looks forward to participating in the next phase of this important process by considering and responding to the single tribunal options paper in coming months.

6 A Single Tribunal for Tasmania, Discussion Paper, September 2015, page 110