Magistrates Court (Administrative Appeals Division) Act 2001 (Tas)

Magistrates Court (Administrative Appeals Division) Act 2001 An Act to establish an administrative appeals division of the Magistrates Court and to provide for incidental matters [Royal Assent 30 October 2001] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Magistrates Court (Administrative Appeals Division) Act 2001 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – Administrator means the Administrator of the Magistrates Court; application – see section 50 ; approved means approved by the Chief Magistrate; Chief Magistrate means the Chief Magistrate of the Magistrates Court; Court means the Magistrates Court (Administrative Appeals Division); decision has the meaning given by section 4 ; decision-maker has the meaning given by section 5 ; enactment means an Act (other than this Act) or a statutory rule (other than a statutory rule made under this Act); exercise a function includes perform a duty; function includes a power, authority or duty; interested person means a person who is entitled under an enactment to make an application to the Court for a review of a reviewable decision; legal practitioner means an Australian legal practitioner; lodge a document includes file a document; Magistrates Court means the Magistrates Court of Tasmania established by the Magistrates Court Act 1987 ; Magistrates Rule Committee means the committee referred to in section 15AC of the Magistrates Court Act 1987 ; parties to proceedings – see section 30 ; registrar means the Administrator or a district registrar, or a deputy district registrar, of the Magistrates Court; regulations means regulations made and in force under this Act; reviewable decision means a decision of a decision-maker that the Court has jurisdiction under an enactment to review; rules of court means rules of court made for this Act by the Magistrates Rule Committee. (2) A reference in this Act to the exercise by the Court of its functions in relation to an enactment includes a reference both to its functions under the enactment and its functions under this Act in relation to the enactment. (3) A reference (however described) in this Act to a decision made under an enactment is taken, in relation to a reviewable decision, to include a reference to any decision made in the exercise of functions identified by the enactment. 4. Meaning of "decision" (1) A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination; (b) giving, suspending, revoking, terminating or refusing to give a certificate, direction, notice, approval, consent or permission; (c) issuing, varying, suspending, cancelling, revoking or refusing to issue a licence, authority or other instrument; (d) imposing a term, condition or restriction; (e) making an assessment, declaration, demand, determination, reassessment, resolution or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing, or refusing or failing to do, any other act or thing. (2) For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment. (3) For the purposes of this Act (and without limiting subsection (2) ), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it. (4) For the purposes of this Act (and without limiting subsection (2) ), a refusal of a decision-maker to make a decision under an enactment because the decision-maker considers that the decision concerned cannot lawfully be made under the enactment is taken to be a decision made under the enactment to refuse to make the decision requested. (5) For the purposes of this Act, a failure by a decision-maker to make a decision – (a) within the period specified by the enactment concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision; or (b) in respect of which there is no law that fixes a period within which the decision is to be made, within a reasonable time is taken to be a decision by the decision-maker to refuse to make the decision; or (c) within the period extended by the Court under section 19 is taken to be a decision by the decision-maker at the end of that period to refuse to make the decision. 5. Meaning of "decision-maker" (1) A decision-maker, in relation to a reviewable decision, is the person or body that makes (or is taken to have made) the decision under the enactment concerned. (2) The person or body specified by an enactment as a person or body whose decisions are reviewable decisions is taken to be the only decision-maker in relation to the making of a reviewable decision even if some other person or body also had a role in the making of the decision. 6. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Establishment of administrative appeals division of the magistrates court 7. Establishment of Administrative Appeals Division of Magistrates Court There is established a division of the Magistrates Court to be known as the Magistrates Court (Administrative Appeals Division). 8. Composition of Court The Magistrates Court (Administrative Appeals Division) is to be constituted by a magistrate. 9. Jurisdiction of Court The Magistrates Court (Administrative Appeals Division) has the jurisdiction conferred on it by this Act. PART 3 - Jurisdiction of the Court 10. Conferral of jurisdiction to review reviewable decisions (1) The Court has jurisdiction under an enactment to review a decision (or a class of decisions) if the enactment provides that applications may be made to it for a review of any such decision (or class of decisions) made by a decision-maker – (a) in the exercise of functions conferred or imposed by or under the enactment; or (b) in the exercise of any other functions of the decision-maker identified by the enactment. (2) If an enactment makes provision for applications to be made to the Court in respect of a reviewable decision subject to certain conditions, the Court has jurisdiction under the enactment only if those conditions are satisfied. (3) A provision of an enactment that provides that a decision-maker's decision is a reviewable decision extends to – (a) a decision made by a person to whom the function of making the reviewable decision has been delegated; or (b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment, a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment; or (c) a decision made by any other person authorised to exercise the function of making the reviewable decision. (4) If a decision-maker makes a reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by – (a) the person for the time being holding or performing the duties of that office or appointment; or (b) if there is no person for the time being holding or performing the duties of that office or appointment, or the office no longer exists, such person as the Court specifies. 11. When enactment taken to make contrary provision to this Act (1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment. (2) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section. (3) In this section – relevant enactment means an enactment under which the Court has jurisdiction to review a reviewable decision, or that otherwise deals with the jurisdiction of the Court. PART 4 - Process for review of reviewable decisions Division 1 - Role of decision-makers Subdivision 1 - Information concerning decision and review rights 12. Notice of decision and review rights to be given by decision-maker (1) A decision-maker who makes a reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following: (a) the decision; (b) the right of the person to have the decision reviewed; (c) the right of the person to make a written request to the decision-maker for a statement of the reasons for the decision. (2) However, a decision-maker does not have to give a notice under subsection (1) in relation to – (a) a decision that is taken by this or any other Act to be made because the decision-maker has failed to make a decision within the time limit for making the decision; or (b) any of the following decisions, but only if the decision concerned does not adversely affect the interests of any interested person: (i) a decision not to impose a liability, penalty or any kind of limitation on a person; (ii) a decision making an adjustment to the level of periodic payments to be made to a person as a member of a class of persons where a similar adjustment is being made to the level of such payments to the other members of the class; (iii) if an enactment establishes several categories of entitlement to a monetary or other benefit, a decision that determines a person to be in the most favourable of those categories; or (c) any other decision or class of decisions prescribed by the regulations for the purposes of this paragraph. (3) A contravention of this section does not affect the validity of any decision. Subdivision 2 - Duty to give reasons on request 13. Duty of decision-maker to give reasons on request (1) If a decision-maker makes a reviewable decision, an interested person may make a written request to the decision-maker for a statement of the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the decision-maker is to prepare a written statement of reasons for the decision and provide it to the person who requested the statement of reasons. (3) The statement of reasons is to include – (a) the findings on material questions of fact relating to the decision; and (b) a reference to the evidence or other material on which any such findings were based; and (c) the reasons for the decision. (4) The regulations may – (a) exclude any class of reviewable decisions from the application of this section; or (b) alter the period within which a statement of reasons under this section must be given. 14. Decision-maker may refuse reasons in certain cases (1) A decision-maker may refuse to prepare and provide a statement of reasons requested by a person under this Division if – (a) the decision-maker is of the opinion that the person is not entitled to be given the statement; or (b) in the case of a decision the terms of which were recorded in writing and set out in a document that was provided to the person, the request was not made within 28 days after the person was provided with the document; or (c) in any other case, the request was not made within a reasonable time after the decision was made. (2) A decision-maker who refuses under subsection (1) to prepare and provide a statement of reasons must notify the person requesting the statement, in writing, of the decision-maker's refusal and the reasons for the refusal as soon as practicable (and in any event within 28 days) after the request. (3) A decision-maker is not to refuse to prepare and provide a statement of reasons if – (a) in the case of a refusal based on subsection (1)(a) , the Court declares, on an application made under section 15(1) , that the person who made the request was entitled to make the request; or (b) in the case of a refusal based on subsection (1)(c) , the Court declares, on an application made under section 15(2) , that the person who made the request did so within a reasonable time. (4) If a decision-maker cannot refuse to comply with a request for a statement of reasons because of a decision of the Court referred to in subsection (3) , the decision-maker must prepare the written statement of reasons that was originally requested and provide it to the person who requested it as soon as practicable (and in any event within 28 days) after the Court's decision. 15. Court may determine whether person entitled to reasons or made request within reasonable time (1) The Court may, on the application of a person who has received notification under section 14(2) , make an order declaring that the person was, or was not, entitled to make the request to which the notification relates. (2) The Court may, on the application of a person who has been refused a statement of reasons under section 14(1)(c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time. 16. Court may order decision-maker to provide statement of reasons or adequate statement of reasons (1) If an interested person has requested a statement of reasons under section 13 but has not received it within the period specified by or under that section, the Court may (on the application of the person) order the decision-maker concerned to provide the statement of reasons within such time as may be specified in the order. (2) If an interested person who requested a statement of reasons under section 13 is given an inadequate statement of reasons, the Court may (on the application of the person) order the decision-maker concerned to provide an adequate statement of reasons within such time as may be specified in the order. (3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it includes the matters referred to in section 13(3) . Division 2 - Role of Court Subdivision 1 - Applications for review 17. Applications for review (1) A person may apply to the Court for a review of a reviewable decision only if – (a) the application is made by an interested person; and (b) the application is made in the manner prescribed by the rules of court; and (c) the application is made within the prescribed period. (2) For the purpose of subsection (1)(c) – prescribed period means – (a) if the person has requested a statement of reasons under section 13 and was provided with that statement or notified under section 14 of a refusal to provide reasons, 28 days from the date on which the statement of reasons was provided or notification of the refusal to provide reasons was given; or (b) if the person has not requested a statement of reasons under section 13 , 28 days from the date on which the person was notified of the making of the reviewable decision. 18. Fees for applications (1) An application to the Court cannot be made unless the fee prescribed by the regulations (if any) in respect of the application is paid. (2) An application in respect of which a fee is waived under the regulations (whether at the time of lodgment or otherwise) is taken to be made at the time the application is lodged with the Court. 19. Extension of time Despite section 4(5)(a) or (b) , the Court may, on application in writing by a decision-maker, extend the period within which the decision-maker may make the decision if the Court is of the opinion that the decision-maker has provided a reasonable explanation for the delay in making the decision. 20. Late applications to Court (1) Despite section 17(1)(c) , the Court may, on application in writing by an interested person seeking to make a late application to the Court, extend the period within which the person may make an application if the Court is of the opinion that the person has provided a reasonable explanation for the delay in making the application. (2) The period within which an application for a review of a reviewable decision may be made may be extended under subsection (1) although that period has expired. (3) In this section – late application means an application not made within the prescribed period as defined in section 17(2) . 20A. Court may make application under Vexatious Proceedings Act 2011 On receipt of an application under section 17 , the Administrator may apply to the Supreme Court under the Vexatious Proceedings Act 2011 for a vexatious proceedings order in relation to the applicant. 21. Duty of decision-maker to lodge material documents with Court where decision reviewed (1) A decision-maker whose reviewable decision is the subject of an application for review to the Court must, within 28 days after receiving notice of the application, lodge with the Court – (a) a copy of any statement of reasons given to the applicant under section 13 (or, if no such statement was given to the applicant, a statement of reasons including the matters referred to in section 13(3) ); and (b) a copy of every document or part of a document that is in the possession, or under the control, of the decision-maker that the decision-maker considers to be relevant to the determination of the application by the Court. (2) If the applicant has not been given a statement of reasons under section 13 , the Court may direct that a copy of the statement of reasons lodged with the Court under subsection (1)(a) be given to the applicant within such period or periods as the Court directs. (3) If the Court considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Court may, at the request of the party, make an order directing that the documents referred to in that subsection be lodged with the Court within such shorter or extended period as is specified in the order. (4) If the Court considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the decision-maker – (a) stating that the Court is of that opinion; and (b) directing the decision-maker concerned to lodge with the Court, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the decision-maker. (5) The registrar of the Court is to grant reasonable access to the applicant in the proceedings to any document lodged under this section by a decision-maker. (6) For the purpose of subsection (5) – reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (7) If a party to proceedings before the Court seeks a summons under section 41 against a decision-maker for the production of any document and a copy of that document has been lodged with the Court under subsection (1) or (4) , the Court may (on such conditions as it considers appropriate) direct the registrar to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons. (8) Nothing in this section requires the disclosure of, or the granting of access to, any document in contravention of any of the following: (a) an order made under section 22 ; (b) an order made under section 36 . (9) For the purposes of this section, a reference to a document in the possession of a decision-maker includes a reference to a document to which the decision-maker has an immediate right of access. 22. Objections to lodgment (1) A decision-maker may apply to the Court before the expiry of the period referred to in section 21(1) for an order that the decision-maker not be required to lodge a document under section 21 . (2) On any such application, the Court may make an order that a document not be lodged with the Court if it considers that, if an application were made under subsection (2) of section 36 , it would be appropriate to make an order under that subsection prohibiting or restricting the publication or disclosure of evidence of the document. Subdivision 2 - Effect of pending applications on reviewable decisions 23. Stay of decision (1) Subject to any other enactment, the making of an application to the Court for a review of a reviewable decision does not – (a) affect the operation of the decision; or (b) prevent the taking of action to implement the decision. (2) Despite subsection (1) , the Court – (a) may, by order, suspend the operation of the decision; and (b) may order a stay of any proceeding under the decision. (3) The Court may make the order – (a) of the Court's own motion; or (b) on the application of the person who made the application for a review of the reviewable decision. 24. Restrictions on ordering stay of proceedings (1) The Court may not – (a) make an order under section 23 unless the decision-maker who made the decision to which such an order would relate has been given a reasonable opportunity to make submissions in relation to the matter; or (b) make an order varying or revoking an order in force under section 23 (including an order as varied) unless the following persons have been given a reasonable opportunity to make submissions in relation to the matter: (i) the decision-maker who made the decision to which such an order would relate; (ii) the person who requested the making of the order; (iii) if the order has previously been varied by an order or orders under section 23 , the person or persons who requested the making of the only, or the later or latest, such order. (2) This section does not prevent the Court from making an order under section 23 without giving to any person referred to in subsection (1) a reasonable opportunity to make submissions in relation to a matter if the Court is satisfied that, because of the urgency of the case or otherwise, it is not practicable to give the person such an opportunity. (3) If an order under this section is made without giving such an opportunity to the decision-maker who made the decision to which the application relates, the order does not take effect until a notice setting out the terms of the order is served on the decision-maker. 25. Conditions of stay order (1) An order in force under section 23 (including an order that has previously been varied on one or more occasions) is subject to such conditions as are specified in the order. (2) Any such order has effect – (a) if a period for the operation of the order is specified in the order, until the expiration of that period or, if the application for a review of a reviewable decision is decided by the Court before the expiration of that period, until the decision of the Court on the application takes effect; or (b) if no period is so specified, until the decision of the Court on the application takes effect. Subdivision 3 - Powers on review 26. Determination of review by Court (1) A review of a decision by the Court is to be by way of hearing de novo. (2) In determining an application for a review of a reviewable decision, the Court may exercise all of the functions that are conferred or imposed by any relevant enactment on the decision-maker who made the decision. (3) In determining an application for a review of a reviewable decision, the Court may decide – (a) to affirm the reviewable decision; or (b) to vary the reviewable decision; or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside; or (d) to set aside the reviewable decision and remit the matter for reconsideration by the decision-maker in accordance with any directions or recommendations of the Court. 27. Application of Government policy (1) In determining an application for a review of a reviewable decision, the Court must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case. (2) The Premier or any other Minister may certify, in writing, that a particular policy was Government policy in relation to a particular matter. (3) The certificate is evidence of the Government policy concerned and the Court is to take judicial notice of the contents of that certificate. (4) In determining an application for a review of a reviewable decision, the Court may have regard to any other policy applied by the decision-maker in relation to the matter concerned except to the extent that the policy is contrary to Government policy or to law or the policy produces an unjust decision in the circumstances of the case. (5) In this section – Government policy means a policy adopted by – (a) the Cabinet; or (b) the Premier or any other Minister – that is to be applied in the exercise of discretionary powers by decision-makers. 28. Power to remit matters to decision-maker for further consideration (1) At any stage of proceedings to determine an application for a review of a reviewable decision, the Court may remit the decision to the decision-maker who made it for reconsideration of the decision by the decision-maker. (2) If a decision is so remitted to a decision-maker, the decision-maker may reconsider the decision and may – (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the decision-maker varies the decision – (a) the application is taken to be an application for review of the decision as varied; and (b) the person who made the application may either – (i) proceed with the application for review of the decision as varied; or (ii) withdraw the application. (4) If the decision-maker sets the decision aside and makes a new decision in substitution for the decision set aside – (a) the application is taken to be an application for review of the new decision; and (b) the person who made the application may either – (i) proceed with the application for review of the new decision; or (ii) withdraw the application. 29. Effect of review decision (1) Subject to subsection (2) , a decision determining an application for a review of a reviewable decision takes effect on the date on which it is given or such later date as may be specified in the decision. (2) If any such decision varies, or is made in substitution for, a decision-maker's decision, the decision of the Court is taken – (a) to be the decision of the decision-maker (other than for the purposes of a review under this Part); and (b) to have had effect as the decision of the decision-maker on and from the date of the decision-maker's actual decision, unless the Court orders otherwise. PART 5 - Procedure of Court generally Division 1 - Parties to proceedings 30. Parties to proceedings before Court (1) The parties to proceedings before the Court for a review of a reviewable decision are – (a) any person who, being entitled to do so, has duly applied to the Court for a review of the decision; and (b) the decision-maker who made the decision; and (c) any other person who has been made a party to the proceedings by the Court in accordance with subsection (2) ; and (d) any person specified by or under any enactment as a party to the proceedings. (2) The Court may, by order, make a person who is not a party to proceedings for a review of a reviewable decision a party to the proceedings, either of its own motion or on the written application of the person, if it is satisfied that the interests of the person are affected by the reviewable decision. (3) A person who is a party to proceedings before the Court – (a) by reason of a decision made by the person in the performance of the duties of an office or appointment; or (b) by reason of the operation of section 10(4) – must be described in the proceedings by the person's official title. 31. Opportunity of parties to make submissions The Court must ensure that every party to proceedings before the Court is given a reasonable opportunity – (a) to present the party's case (whether at a hearing or otherwise); and (b) to make submissions in relation to the issues in the proceedings. 32. Representation before Court (1) At the hearing of a proceeding before the Court, a party to the proceeding may – (a) appear in person; or (b) unless any enactment specifically states to the contrary, be represented by a legal practitioner; or (c) if any enactment specifically allows it, be represented by some other class of person specified in that enactment. (2) Despite subsection (1)(b) and (c) , the Court may order that the parties to the proceedings before it may not be represented by a legal practitioner or particular class of person if the Court considers it appropriate. 33. Notice of application to be served on other parties (1) The registrar must cause notice of an application to the Court to be served on any party (other than the applicant) to the proceedings within such time and in such manner as may be prescribed by the rules of court. (2) It is sufficient compliance with subsection (1) if – (a) the registrar directs the applicant to serve notice referred to in subsection (1) on another party on the registrar's behalf; and (b) notice is served on the other party by the applicant in accordance with the rules of court referred to in subsection (1) . Division 2 - Other procedural matters 34. Procedure of Court generally (1) The Court may, subject to this Act and the rules of court, determine its own procedure. (2) The Court is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Court is to act with as little formality as the circumstances of the case permit and accordin