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Tribunals Provisions Amendment Bill 2002
TRIBUNALS PROVISIONS AMENDMENT
BILL 2002
EXPLANATORY NOTES
General Outline
Objectives of the Legislation
The principal policy objectives of the Bill introduce amendments to
support reforms to the tribunals within the Tourism, Racing and Fair
Trading portfolio:
· clarify and consolidate the role of the chairperson in each
tribunal articulating responsibility for adjudicative functions;
· create a central tribunals registry and clarify and consolidate the
director as the registrar/secretary across all the tribunals. The
director also is given clear responsibility for the financial and
administrative functions of the tribunals;
· create the position of presiding case manager to provide a more
efficient and effective case management system which includes
undertaking procedural directions hearings; and
· undertake other miscellaneous amendments to improve general
tribunal efficiency.
The Bill amends the following Acts:
· Queensland Building Tribunal Act 2000, regarding the
Queensland Building Tribunal;
· Retirement Villages Act 1999, regarding the Retirement Villages
Tribunal (RVT);
· Property Agents and Motor Dealers Act 2000, regarding the
Property Agents and Motor Dealers Tribunal (PAMDT);
· Liquor Act 1992, regarding the Liquor Appeals Tribunal (LAT);
and
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Tribunals Provisions Amendment Bill 2002
· Racing and Betting Act 1980, regarding the Racing Appeals
Authority (RAA)
Reasons for Proposed Legislation
The Department of Tourism, Racing and Fair Trading has undertaken a
review of all the tribunals under the portfolio and has developed a three
stage reform process to deliver more efficient and effective tribunal
services to a range of stakeholders. The first stage of reform has been
delivered through administrative changes, which include centralising
registry services, accommodation and support for tribunal operations.
The Tribunals Provisions Amendment Bill supports stage two of the
reforms by establishing the position of presiding case manger and
consolidating the roles of chairpersons and registry services across all five
Acts. This will facilitate the provision of central registry services to all
tribunals and enable the appointment of a single full-time chairperson
across three tribunals.
The third stage will be undertaken over the next twelve months and will
involve the development of legislation for a single amalgamated tribunal
for consumers and traders.
Alternatives to the Bill
There are no alternatives considered appropriate for achieving these
policy objectives.
How the Policy Objectives will be Achieved
The objects of the legislation are primarily achieved through creating a
central registry with a director and a presiding case manager; and through
ensuring consistent roles and responsibilities for chairpersons which will
support the appointment of a single chairperson to three of the tribunals.
Estimated Cost of Implementation
The reforms will impose no additional cost to the Government in
implementing the provisions of this Bill. Indeed, it is anticipated that the
reforms will deliver efficiencies and savings when compared to current
expenditure and case loads.
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Tribunals Provisions Amendment Bill 2002
Fundamental legislative principles
Self incrimination before a public examination
The provisions relating to public examinations under the Property
Agents and Motor Dealers Act (PAMDA) remove the ability for a person to
remain silent on the basis that the truthful answer to a question put to them
by the PAMDT may incriminate them in future proceedings. However, the
provisions specify that such an answer will not be admissible in any
criminal or civil proceeding against the person, other than a proceeding in
which the falsity or misleading nature of the answer is relevant.
The Need
The need to afford protection to persons answering questions which tend
to incriminate is acknowledged. Such a power should only be conferred in
circumstances where its absence will demonstrably lead to a greater harm
than is done by its use. In this instance the harm the power seeks to avoid is
that caused by marketeering offences.
These are serious offences which may involve the loss of considerable
sums of money by vulnerable people such as the elderly, retired or people
who do not have local market knowledge, such as those from interstate or
overseas. Due to the position of power of some marketeers and the
vulnerable position of their victims, the mischief wrought by wrongdoers is
all the more devastating.
Under Division 6A of Chapter 14 of the PAMDA, the PAMDT has the
power to conduct public examinations that investigate the conduct of a
marketeer in order to find out whether the marketeer has engaged in
misleading or unconscionable conduct, or in making false representations
or engaging in misleading conduct in relation to residential property.
A public examination of marketeers suspected of having contravened the
marketeering offence provisions is regarded as a vital part of the strategy to
deter unconscionable behaviour of marketeers and to discover information,
which will be pivotal in prosecutions and in future protection of consumers
in this context.
However, the existence of a right to silence in a public examination
renders the public examination power ineffective.
The practical operation of the right to silence in the context of public
examinations will invariably mean that the public examination will illicit
no evidence from potentially serious offenders of the chain of misleading
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Tribunals Provisions Amendment Bill 2002
activities that characterise marketeering activities. The power to compel
answers to questions is fundamental to the effectiveness of the public
examination power.
If questions put to a witness before a public examination concern matters
that are peculiarly within the knowledge of the witness and would be
difficult or impossible to establish by any alternative evidentiary means, it
is in the interests of the public that the uncooperative witness be obliged to
answer questions. The interests of the parties injured or who could be
injured in the future by the conduct of the witness or of other persons to
whom the information being sought relates, must be weighed against the
possible detriment to the witness.
The proposed inquiry power is similar to that conferred on the QBT
under Section 73 of the Queensland Building Tribunal Act. The Criminal
and Misconduct Act 2001 and the Australian Securities and Investments
Commission Act 1989, Trade Practices Act 1974 and the Fair Trading Act
1989 also have similar provisions.
Safeguards
The proposed power to compel answers is safeguarded by:
· the power to compel answers to questions would be limited to the
narrow purposes of Division 8 of Chapter 14 of PAMDA;
· the Bill prohibits use of the information obtained in the course of
the public examination from a witness claiming the privilege
against self-incrimination in future proceedings other than in a
proceeding in which the falsity or misleading nature of the
answer is relevant;
· a reference committee will be established to determine whether
to authorise the chief executive to make an application to
PAMDT for a public examination under Division 8 of Chapter 14
of PAMDA. The reference committee would consist of the
Commissioner for Fair Trading and two community
representatives, one with demonstrated interest in civil liberties
and the other with experience in fair trading issues;
· similar safeguard powers to those under the Crime and
Misconduct Act have been adopted. That is the reference
committee needs to be satisfied that further investigation using
powers ordinarily available to inspectors was unlikely to be
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Tribunals Provisions Amendment Bill 2002
effective for deciding whether to commence proceedings against
a marketeer, that a public examination may discover whether a
marketeer has contravened a relevant marketeer provision and
that it is in the public interest for an application to be made by the
chief executive.
CONSULTATION
As this legislation is primarily administrative in nature, consultation on
its provisions has been limited to relevant Government agencies.
However, during the major review undertaken in 2001, a range of
consultations were undertaken with internal and external stakeholders.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Act.
Clause 2 provides that the Act commences on a day to be fixed by
proclamation.
PART 2--AMENDMENT TO THE LIQUOR ACT 1992
Clause 3 states that this part amends the Liquor Act 1992.
Clause 4 amends the definitions section to:
· provide for a definition of bankruptcy action. This definition
supports the amendments to section 18, which provides a
consistent set of grounds on which a member of a tribunal may
have their appointment terminated. One of the grounds for
termination will be that the member is affected by bankruptcy
action
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Tribunals Provisions Amendment Bill 2002
· define the presiding case manager under the Property Agents and
Motor Dealers Act 2000 as the presiding case manager appointed
under the Queensland Building Tribunal Act 2000
· provide that the registrar referred to under the Liquor Act will be
the director of the central tribunals registry which is fully
established under the Queensland Building Tribunal Act 2000.
This provision supports the consolidation of registry services
across all the tribunals.
Clause 5 allows for the person appointed as chairperson of the Liquor
Appeals Tribunal to hold another public office.
Clause 6 inserts a provision that will formalise a practice of advertising
for applications or expressions of interest for all tribunal positions in the
future.
Clause 7 provides the grounds on which the Governor in Council may
terminate an appointment and specifies the grounds on which a termination
is mandatory. This introduces standard criteria across all the tribunals in
line with modern practice.
Clause 8 inserts a standard provision requiring the chairperson to
provide the Minister with an annual report on the operation of the tribunal
and for relevant matters to be included in the department's annual report.
Clause 9 inserts a new division which:
· section 20C establishes the chairperson's role to provide
consistency across the tribunals and clearly articulating
responsibility for the adjudicative functions, performance of
members and the developing of practices and procedures to
promote the efficient management of the tribunal;
· section 20D sets an expectation that the chairperson and the
registrar (director, central tribunals registry) will work
cooperatively. This provision is necessary given the structure
where one registry supports five tribunals;
· section 20E outlines the members' roles and responsibilities and
requires that a member comply with procedures established by
the chairperson; and
· section 20F provides for the chairperson to delegate their powers
to another member, or to the registrar in relation to the
composition of the tribunal. The ability to delegate to the
registrar is important where the chairperson is part time and
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Tribunals Provisions Amendment Bill 2002
requires the registrar to manage most procedural aspects of the
tribunal operations. The section also provides for the registrar to
sub-delegate to an appropriately qualified member of the registry
staff to enable efficient operations across five tribunals.
Clause 10 provides that:
· the chairperson is responsible for the constitution of the tribunal
for a hearing, ensuring independent oversight of this function;
and
· in addition to the existing capacity to be constituted by a single
member, the tribunal may be constituted by a single legally
qualified member applications under section 26A (submission to
allow new evidence to be tendered);
· that the presiding case manager established under the
Queensland Building Tribunal Act 2000 may be given prescribed
matters to determine (for example directions matters) under this
Act.
Clause 11 provides for the presiding case manager to determine
prescribed matters under this Act. The presiding case manager is appointed
under the Queensland Building Tribunal Act 2000.
Clause 12 provides for the presiding case manager to exercise the
tribunal's powers in a prescribed directions hearing.
Clause 13 is a miscellaneous amendment that allows for applications for
leave to introduce new evidence which had not previously been available to
the chief executive while making the original decision, to be heard by a
single member as part of a directions conference. These applications will
be able to be heard either as part of a directions conference or in the
hearing of the appeal before the full tribunal.
Clause 14 is a miscellaneous amendment that inserts a provision that
provides for a person who is required to attend a tribunal to be paid
prescribed witness fees and expenses. This will provide consistent
provisions across all tribunals for witnesses expenses.
Clause 15 provides for the tribunal contempt provisions to apply to the
presiding case manager.
Clause 16 recasts the previous section 35A to support the changes in
clause 13 above allowing for applications to adduce new evidence to be
dealt with either in a directions hearing or as part of the full appeal hearing.
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Tribunals Provisions Amendment Bill 2002
Clause 17 recasts the existing provisions which enables the tribunal to,
on application, suppress sensitive information about a participant in a
proceeding.
Clause 18 is a miscellaneous amendment that amends this section to
separate the capacity of the chief executive in relation to publishing
information from the register of licences, permits and applications (section
43) from the capacity to publish decisions of the tribunal which will now
rest with the director of the central tribunals registry.
Clause 19 inserts a provision providing for evidentiary proof of the
signature of members of the tribunal and officials of the registry.
PART 3--AMENDMENT TO THE PROPERTY AGENTS
AND MOTOR DELAERS ACT 2000
Clause 20 states that this part amends the Property Agents and Motor
Dealers Act 2000.
Clause 21 corrects a typographical error.
Clause 22 inserts a provision that will formalise a practice of advertising
for applications or expressions of interest for all tribunal positions in the
future.
Clause 23 provides the grounds on which the Governor in Council may
terminate an appointment and specifies the grounds on which a termination
is mandatory. This introduces standard criteria across all the tribunals in
line with modern practice. It provides an additional ground for possible
termination to those in the existing Property Agents and Motor Dealers Act
2000 relating to the performance of the member.
Clause 24:
· section 458 amends the chairperson's role to provide consistency
across all tribunals and clearly articulate responsibility for the
adjudicative functions, performance of members and the
developing of practices and procedures to promote the efficient
management of the tribunal;
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Tribunals Provisions Amendment Bill 2002
· section 459 sets an expectation that the chairperson and the
registrar (director, central tribunals registry) will work
cooperatively. This provision is necessary given the structure
where one registry supports five tribunals;
· section 460 outlines the members' roles and responsibilities and
requires that a member comply with procedures established by
the chairperson; and
· section 461 provides for the chairperson to delegate their powers
to another member or to the registrar in relation to the
composition of the tribunal. The section also provides for the
registrar to sub-delegate to an appropriately qualified member of
the registry staff to enable efficient operations across five
tribunals.
Clause 25 provides for the deletion of sections 459 to 465 relating to the
registrar's appointment, powers and functions and related provisions under
the Property Agents and Motor Dealers Act 2000. As the registrar for this
Act will be the director, central tribunals registry appointed under the
Queensland Building Tribunal Act 2000, separate provisions are no longer
necessary.
Clause 26 inserts a standard provision requiring the chairperson to
provide the Minister with an annual report on the operation of the tribunal
and for relevant matters to be included in the department's annual report.
Clause 27 is a miscellaneous amendment to remove an anomaly in
timeframes between section 497 (3) and section 499. The outcome of
changes is that a person against whom a compliant is made must be given
14 days notice of the hearing day. A new subsection (5) is inserted to
ensure the tribunal is notified when the chief executive has served the
necessary notices on the person against whom the complaint is made.
Clause 28 deletes section 499 to remove anomaly. See clause 27 above.
Clause 29 is a miscellaneous amendment to remove an anomaly in
timeframes between section 500B (3) and section 500D. The outcome of
changes is that a marketeer against whom a compliant is made must be
given 14 days notice of the hearing day. A new subsection (5) is inserted to
ensure the tribunal is notified when the chief executive has served the
necessary notices on the marketeer against whom the complaint is made.
Clause 30 deletes section 500D to remove anomaly. See clause 29
above.
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Tribunals Provisions Amendment Bill 2002
Clause 31 provides for the presiding case manager to constitute the
tribunal in prescribed matters. It also provides for a legally qualified person
(other then the chairperson) to hear nominated matters thus providing
additional efficiencies through broader options.
Clause 32 is a miscellaneous amendment that inserts a provision that
provides for a person who is required to attend the tribunal to be paid
prescribed witness fees and expenses. This will provide consistent
provisions across all tribunals for witnesses expenses.
Clause 33 recasts the existing provision giving responsibility to the
chairperson to select the panel for a hearing. In addition, the section
provides that the power of the chairperson to constitute a tribunal does not
apply where the matter is to be heard by the presiding case manager. It also
provides for the chairperson to assign matters which are before the tribunal
to the presiding case manager to conduct, if the matter is one which can
appropriately be handled in that way.
Clause 34 provides for the tribunal contempt provisions to apply to the
presiding case manager.
Clause 35 renumbers Chapter 14, part 5, divisions 6A to 10.
Clause 36 inserts a new Division 7 after section 528.
Division 7 provides for the establishment of a reference committee and
details its functions.
Section 528AA provides for the establishment a reference committee to
consist of the commissioner for fair trading and two community
representatives, one of which must have a demonstrated interest in civil
liberties and the other a person the Minister considers has appropriate and
relevant experience in fair trading issues.
Section 528AB details the reference committee's function, which is to
decide whether conduct of a marketeer that is being investigated should be
the subject of an application to the tribunal for a public examination.
Section 528AC provides that the reference committee may authorise the
chief executive to make an application to the tribunal for a public
examination if satisfied that:- it is unlikely further investigation of the
conduct by an inspector will be effective for deciding whether to start a
marketeer proceeding, a public examination may help find out whether the
marketeer has contravened section 573A, 573B or 573C and it is in the
public interests that an application is made.
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Tribunals Provisions Amendment Bill 2002
Clause 37 provides for minor amendments to section 528B(1) to provide
that the tribunal before the start of a public examination must be satisfied
that each person to be examined has received in writing the grounds for the
public examination.
Clause 38 provides for the insertion of a new section 528BA.
The new section 528BA provides that if a person refuses to answer a
question put to the person at a public examination and the tribunal requires
the question to be answered, the tribunal must advise the person that if the
answer might incriminate the person, the person can claim, before giving
the answer, that providing the answer might incriminate the person. The
tribunal must also advise the person of the effect that making the claim will
have on the admissibility of the answer in any proceeding against the
person. Unless the person has a reasonable excuse the person must then
answer the question.
It is not a reasonable excuse to fail to answer the question that answering
might tend to incriminate the person. This is despite section 519(3) of the
Act.
The answer will not be admissible in any criminal or civil proceeding,
other than a proceeding in which the falsity or misleading nature of the
answer is relevant.
Clause 39 is a miscellaneous amendment to provide for the form of final
decisions of the tribunal. Current provisions could be read to require all
decisions, even on directions matters to be in this formal format.
Clause 40 the current provision of section 536 has been incorporated
into the new section 533 above (Clause 35).
Clause 41 provides a minor consequential amendment to include
recognition of the registrar's signature for evidentiary purposes.
Clause 42 amends the definitions section to:
· insert a definition of "commissioner for fair trading"; "public
examination", and "reference committee";
· provide that the presiding case manager under the Property
Agents and Motor Dealers Act 2000 is the presiding case
manager appointed under the Queensland Building Tribunal Act
2000; and
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Tribunals Provisions Amendment Bill 2002
· provide that the registrar referred to under the Property Agents
and Motor Dealers Act 2000 will be the Director of the Central
Tribunals Registry, which is fully established under the
Queensland Building Tribunal Act 2000. This provision supports
the consolidation of registry services across all the tribunals.
PART 4--AMENDMENT TO QUEENSLAND BUILDING
TRIBUNAL ACT 2000
Clause 43 states that this part amends the Queensland Building Tribunal
Act 2000.
Clause 44 amends the objects of the Act to include the object of
establishing a central tribunals registry.
Clause 45 corrects a typographical error as there is no schedule one.
Clause 46 inserts a provision that will formalise a practice of advertising
for applications or expressions of interest for all tribunal positions in the
future.
Clause 47 allows for the person appointed as chairperson of the
Queensland Building Tribunal to hold another public office. This provision
will facilitate the chairperson being cross appointed to three tribunals.
Clause 48 provides:
· section 13 amends the chairperson's role to provide consistency
across all tribunals and clearly articulate responsibility for the
adjudicative functions, performance of members and the
developing of practices and procedures to promote the efficient
management of the tribunal;
· section 13A sets an expectation that the chairperson and the
registrar (director, central tribunals registry) will work
cooperatively. This provision is necessary given the structure
where one registry supports five tribunals; and
· section 13B outlines the members' roles and responsibilities, and
requires that a member comply with procedures established by
the chairperson.
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Tribunals Provisions Amendment Bill 2002
Clause 49 amends the section relating to the chairperson's capacity to
delegate their powers to another member or to the registrar in relation to the
composition of the tribunal. This amended provision will provide
consistency across all the tribunals. The section also provides for the
registrar to sub-delegate to an appropriately qualified member of the
registry staff to enable efficient operations across five tribunals.
Clause 50 provides the grounds on which the Governor in Council may
terminate an appointment and specifies the grounds on which a termination
is mandatory. This introduces standard criteria across all the tribunals in
line with modern practice. It provides an additional ground for possible
termination to those in the existing Queensland Building Tribunal Act 2000
relating to the performance of the member.
Clause 51 establishes the central tribunals registry to provide services
and supports to all designated tribunals. The provisions include:
· section 20 establishing the central tribunals registry; providing
for the position of director and other staff. This provision
facilitates the establishment of a single registry to support five
tribunals;
· section 21 sets out the functions and powers of the director,
which provide the framework for the director to work across all
the tribunals. The detail is based on the existing responsibilities
of the registrar under the Queensland Building Tribunal Act. The
director's functions and powers are subject to the chief executive;
· section 22 provides for the keeping of necessary records across
all the tribunals and for such records to be made available, as
appropriate, to the public;
· section 23 recasts those powers and responsibilities of the
director which are specific to the Queensland Building Tribunal
Act;
· section 24 provides the capacity to the director to engage
consultants to perform services for any central tribunal;
· section 25 provides for the director to delegate powers to an
appropriately qualified member of staff;
· section 26 provides for the appointment and qualifications for the
director and staff. These appointments are under the Public
Service Act; and
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Tribunals Provisions Amendment Bill 2002
· section 26A allows the chief executive to appoint an acting
director.
Clause 51 also inserts a new Part 3A which establishes the position of
presiding case manager. The provisions include:
· section 26B establishes the position of presiding case manager.
The intention of this position is to provide more streamlined case
management of cases leading up to the final adjudication of a
matter by the tribunal.
· section 26C provides for the presiding case manager to hear
prescribed matters relating to any of the designated tribunals. It is
intended that matters prescribed for the presiding case manager
to hear will be directions and procedural matters, which will
simplify and speed up matters proceeding through a tribunal.
Subsections provide boundaries on the role of the presiding case
manager hearing matters and exercising the powers and functions
of the relevant tribunals in relation to those matters
· section 26D allows for the presiding case manager to refer
matters to mediation under the Queensland Building Tribunal
Act. Both the director and presiding case manager will have this
capacity.
· section 26E provides for the statutory independence of the
presiding case manager when constituting a designated tribunal
to ensure they are not directed in their decision making on
individual matters. Subsection (2) provides that the presiding
case manager must comply with any procedural directions given
by a chairperson, providing for a clear link on quasi-judicial
matters.
· section 26F sets out the terms of appointment and qualifications
necessary for the presiding case manager. The person must be a
lawyer of not less than 5 years standing and the appointment is to
be made by the Governor in Council. The position is a public
service position and reports administratively to the director.
· section 26G provides for the presiding case manager to disclose
any known conflict of interest and, if necessary, disqualify
himself or herself from a matter.
· section 26H ensures that when constituting a tribunal that the
presiding case manager has the same protections and immunities
as other members of the tribunal/s.
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Tribunals Provisions Amendment Bill 2002
· section 26J provides for the chief executive to appoint an acting
presiding case manager where necessary.
Clause 52 provides for the presiding case manager to determine
prescribed matters under the Queensland Building Tribunal Act 2000.
Clause 53 provides for the tribunal contempt provisions to apply to the
presiding case manager.
Clause 54 is a miscellaneous amendment that provides a method for the
calculation of interest where damages are being awarded by the tribunal.
This provides for consistent interest calculations across the Act.
Clause 55 is a miscellaneous amendment that broadens the range of
undertakings, which may be ordered by the tribunal as part of a stay order.
The new provision will allow for a range of undertakings to be made, for
example, to continue or refrain from continuing a certain act or omission,
not just undertakings relating to costs and damages.
Clause 56 is a miscellaneous amendment that provides for disciplinary
action to be commenced where a person (who is not a licensee) undertakes
to carry out building work without the appropriate licence. Under the
current provisions action can only be taken where a person actual carries
out building work.
Clause 57 is a miscellaneous amendment that provides for the Building
Service Authority, rather than the tribunal, to serve certain documentation
on persons subject to a public examination. This brings the service
provisions in line with other sections.
Clause 58 is a miscellaneous amendment that clarifies the
confidentiality of evidence said and done in a mediation process. The
provision allows that such evidence is only admissible in the tribunal or
elsewhere if all parties agree (other than where an offence is alleged to
have been committed during the mediation).
Clause 59 is a miscellaneous amendment that supports clause 54 by
providing a new provision that a mediator must not disclose any
information learnt in the mediation without reasonable excuse. Subsection
2 defines reasonable excuse.
Clause 60 is a miscellaneous amendment that provides for a tribunal
member to give a decision in default of defence where the claims for not
for a liquated amount. The current provisions allow such decisions only
where the claim is for a liquated amount.
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Tribunals Provisions Amendment Bill 2002
Clause 61 removes the provision for the tribunal to be funded by from
the General Statutory Fund under the Queensland Building Service Act
1991. The tribunal is now funded through consolidated revenue.
Clause 62 inserts a standard provision requiring the chairperson to
provide the Minister with an annual report on the operation of the tribunal
and for relevant matters to be included in the department's annual report.
Clause 63 provides the same evidentiary status to the signature of the
presiding case manager as to the registrar or tribunal members.
Clause 64 is a consequential amendment from changing staff of the
tribunal to staff of the registry.
Clause 65 provides for an amended heading
Clause 66 provides a new Part with transitional arrangements, by
providing:
· the registrar under this Act becomes the director, central tribunals
registry
· the staff of the tribunal become the staff of the central tribunals
registry
· the provisions relating to the presiding case manager do not
apply to matters already lodged with a tribunal unless the
chairperson of that tribunal approves the arrangements.
Clause 67 amends the definitions section to:
· provide for a definition of bankruptcy action. This definition
supports the amendments to the section which provides a
consistent set of grounds on which a member of a tribunal may
have their appointment terminated. One of the grounds for
termination will be that the member is affected by bankruptcy
action
· defines the designated tribunals to be called `central tribunals'
and their originating Acts; and
· defines the director under this Act as the director, central
tribunals registry.
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Tribunals Provisions Amendment Bill 2002
PART 5--AMENDMENT TO THE RACING AND
BETTING ACT 1980
Clause 68 states that this part amends the Racing and Betting Act 1980.
Clause 69 amends the definitions section to provide for a definition of
bankruptcy action. This definition supports the amendments to section
115EA, which provides a consistent set of grounds on which a member of a
tribunal may have their appointment terminated. One of the grounds for
termination will be that the member is affected by bankruptcy action.
Clause 70 amends the definitions section to provide that the secretary to
the Racing Appeals Authority will be the director of the central tribunals
registry which is established under the Queensland Building Tribunal Act
2000. This provision supports the consolidation of registry services across
all the tribunals.
Clause 71 recasts provisions relating to the constitution of the authority
and provides for the presiding case manager to constitute the authority for
prescribed matters under the Racing and Betting Act. The presiding case
manager is appointed under the Queensland Building Tribunal Act.
Clause 72 inserts a new provision outlining persons who would not be
qualified to become members of the authority. These provisions ensure that
persons actively engaged in the administration of the racing industry would
not be considered. The provision also formalises a practice of advertising
for applications or expressions of interest for all tribunal positions in the
future
Clause 73 minor amendment to support the amended grounds for
termination provided for in clause 72 below.
Clause 74 provides the grounds on which the Governor in Council may
terminate an appointment and specifies the grounds on which a termination
is mandatory. This introduces standard criteria across all the tribunals in
line with modern practice.
Clause 75 minor amendment to support the amended grounds for
termination provided for in clause 70 above.
Clause 76:
· section 115HA establishes the chairperson's role to provide
consistency across the tribunals, and clearly articulate
responsibility for the adjudicative functions, performance of
members and the developing of practices and procedures to
promote the efficient management of the authority;
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Tribunals Provisions Amendment Bill 2002
· section 115HB sets an expectation that the chairperson and the
secretary (director, central tribunals registry) will work
cooperatively. This provision is necessary given the structure
where one registry supports five tribunals;
· section 115HC outlines the members' roles and responsibilities,
and requires that a member comply with procedures established
by the chairperson; and
· section 115HD provides for the chairperson to delegate their
powers to another member or to the registrar in relation to the
composition of the authority. The ability to delegate to the
registrar is important where the chairperson is part time and
requires the registrar to manage most procedural aspects of the
authority's operations. The section also provides for the registrar
to sub-delegate to an appropriately qualified member of the
registry staff to enable efficient operations across five tribunals.
Clause 77 inserts into this Act for the first time standard provisions:
· requiring a member to disclosure any potential conflict of
interests in a particular matter and, if necessary, disqualify
themselves for further proceedings; and
· providing for protection and immunity for members in the
performance of their duties.
Clause 78 this provision clarifies the existing practice of the authority of
refunding the application fee to the appellant in certain circumstances. This
practice has been developed to enable a substantial up-front fee to be
charged to discourage frivolous or vexatious appeals, and for a refund to be
given where the appeal is substantiated. The provision allows for more
detail on the grounds for refund to be set out in regulation.
Clause 79 inserts a provision that provides for a person who is required
to attend a tribunal to be paid prescribed witness fees and expenses. This
will provide consistent provisions across all tribunals for witnesses
expenses.
Clause 80 inserts into this Act for the first time:
· standard tribunal provisions providing for contempt action to be
taken if necessary; and
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· a standard provision requiring the chairperson to provide the
Minister with an annual report on the operation of the authority
and for relevant matters to be included in the department's annual
report.
Clause 81 provides the same evidentiary status to the signature of the
presiding case manager as to the secretary or authority members.
PART 6--AMENDMENT TO THE RETIREMENT
VILLAGES ACT 1999
Clause 82 states that this part amends the Retirement Villages Act 1999.
Clause 83 corrects a typographical error. There is no schedule one.
Clause 84 provides for the registrar, not the chief executive, to take
applications about a retirement village dispute. The existing Act does not
provide for a registrar, but rather required the chief executive to provide the
administrative processes supporting the tribunal. This clause and a number
of others in this part, establish the dispute resolution processing outside the
department, within the tribunal's and registry's responsibilities.
Clause 85 provides for the registrar, not the chief executive, to refer a
dispute to the tribunal.
Clause 86 provides for the presiding case manager to determine
prescribed matters under the Retirement Villages Act 1999. The presiding
case manager is appointed under the Queensland Building Tribunal Act
2000.
Clause 87 provides that where the chairperson is a member of a panel for
a particular matter, the chairperson is the presiding member of that hearing.
However where the chairperson is not a member of a particular panel, the
legal member appointed to that panel shall be the presiding member.
Clause 88 clarifies the capacity of the tribunal to issue an attendance
notice on either application from a party or on its own initiative.
Clause 89 provides for the tribunal contempt provisions to apply to the
presiding case manager.
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Clause 90 provides for a person who is required to attend a tribunal to be
paid prescribed witness fees and expenses. This will provide consistent
provisions across all tribunals for witnesses expenses.
Clause 91 provides for one of the legal members of the tribunal under
the Retirement Villages Act 1999 to be appointed as chairperson. The
tribunal does not currently have an ongoing chairperson, but rather a legal
member who is chairperson only for a particular hearing. This formal
appointment will support moving the tribunal from a departmental
responsibility to a more independent status.
Clause 92 inserts a provision that will formalise a practice of advertising
for applications or expressions of interest for all tribunal positions in the
future.
Clause 93 provides the grounds on which the Governor in Council may
terminate an appointment and specifies the grounds on which a termination
is mandatory. This introduces standard criteria across all the tribunals in
line with modern practice.
Clause 94 inserts a new division that provides for the administration of
the tribunal, including:
· section 206A establishes the chairperson's role to provide
consistency across the tribunals, and clearly articulate
responsibility for the adjudicative functions, performance of
members and the developing of practices and procedures to
promote the efficient management of the tribunal;
· section 206B sets an expectation that the chairperson and the
registrar (director, central tribunals registry) will work
cooperatively. This provision is necessary given the structure
where one registry supports five tribunals;
· section 206C outlines the members' roles and responsibilities,
and requires that a member comply with procedures established
by the chairperson; and
· section 206D provides for the chairperson to delegate their
powers to another member or to the registrar in relation to the
composition of the tribunal. The ability to delegate to the
registrar is important where the chairperson is part time and
requires the registrar to manage most procedural aspects of the
tribunal operations. The section also provides for the registrar to
sub-delegate to an appropriately qualified member of the registry
staff to enable efficient operations across five tribunals.
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Clause 95 provides for the presiding case manager to determine
prescribed under the Retirement Villages Act 1999. The presiding case
manager is appointed under the Queensland Building Tribunal Act 2000.
Clause 96 states that section 271 is omitted and the matter of annual
report dealt with under clause 95.
Clauses 97 and 98 restate evidentiary provisions relating to
appointments to include the registrar and presiding case manager.
Clause 99 provides a standard provision requiring the chairperson to
provide the Minister with an annual report on the operation of the tribunal
and for relevant matters to be included in the department's annual report.
Clause 100 amends the definitions section to:
· provide for a definition of bankruptcy action. This definition
supports the consistent set of grounds on which a member of a
tribunal may have their appointment terminated. One of the
grounds for termination will be that the member is affected by
bankruptcy action;
· provide that the presiding case manager under Retirement
Villages Act is the presiding case manager appointed under the
Queensland Building Tribunal Act; and
· provide that the registrar referred to under Retirement Villages
Act will be the director of the central tribunals registry which is
fully established under the Queensland Building Tribunal Act
2000. This provision supports the consolidation of registry
services across all the tribunals.
PART 7--GENERAL
Clause 101 indicates that the schedule amends the Acts listed in that
schedule.
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Tribunals Provisions Amendment Bill 2002
SCHEDULE 1
The schedule sets out minor consequential amendments to support the
legislative changes detailed in the Bill.
The Acts amended are:
· Liquor Act
· Queensland Building Services Act to remove the reciprocal
provision relating to the funding of the Queensland Building
Tribunal
· Queensland Building Tribunal Act primarily to change the title of
the registrar under this Act to the director, central tribunals
registry
· Retirement Villages Act primarily to replace the chief executive
with the registrar in provisions relating to the administration of
the tribunal.
© State of Queensland 2002