CATs: Gains or Losses for Access to Justice? SACAT and Public Housing Appeals

AIAL Forum No. 82 (949 Kb)


Kathleen McEvoy* and Susannah Sage-Jacobson**

The model of the ‘Super’ tribunal, the generalist amalgamated civil and administrative tribunal (CAT), has been established in almost all Australian states
and territories.[1]In
most jurisdictions the aim of access to justice is a feature of the aims of their establishment. CATs are now well established throughout Australia,
with the most recent legislation for the establishment of the Northern Territory Civil and Administrative Tribunal (NTCAT) operating since 6 October
2014.State and Territory CATs are largely distinguished from the Commonwealth Administrative Appeals Tribunal in having jurisdiction in relation to
certain civil matters, for example residential tenancies disputes, or small claims, in addition to a range of administrative review functions.

The achievements of CATs in improving access to justice lie in the improvements to transparency and consistency in decision-making, as well as improving
public awareness concerning the independence and informality of decision making. This paper considers the tension between these proposed and intended
gains in access to justice and the potential losses in the ability of the generalist CATs to tailor their processes to the distinctive needs of highly
vulnerable applicants. The overall gains of CATs may not account for the specific legal needs of some socially excluded applicants who may require
tailored services to enable substantive access to justice before a tribunal.

To illustrate this balance, a case study of the South Australian Civil Administrative Tribunal (SACAT), the most recent of the CATs to be established,
is considered.SACAT has strong legislative underpinning in terms of access to justice and has from the outset of its operations subsumed a jurisdiction
which addresses applications from highly vulnerable and socially excluded, special needs applicants, in South Australian public housing appeals.

In South Australia, appeals from parties to public and community housing disputes were formerly managed by the Housing Appeal Panel (HAP).The jurisdiction
of this Panel was transferred to SACAT from 30 March 2015 and relates to disputes which public housing tenants and former tenants, and applicants for
public housing, have with the public housing provider in SA (Housing SA)[2] and disputes arising between tenants of and applicants for community housing in South Australia and community housing organisations.[3]The
HAP was a small tribunal with limited jurisdiction, located within and serviced by a Department which also included the government authority (Housing
SA), the scrutiny of whose decisions constituted the bulk of the HAP’s jurisdiction. It was therefore a tribunal and jurisdiction which would benefit
both from the appearance and actuality of independence by being placed in SACAT.

However, this paper focusses on the former HAP applicants and questions whether the distinctive special needs of this particular group of applicants to
the new SACAT will be appropriately met. In so doing the most recent available evidence on the extent of the legal needs of public housing tenants
is discussed and a comparison is drawn between the specialised and tailored service previously offered by the former HAP in SA and the new streamlined
procedures envisaged at SACAT. The paper explains that where the distinctive special needs of applicants to a particular jurisdiction to be subsumed
in a CAT are not able to be accommodated by the broad focus of a CAT, it may be that substantive access to justice for a particular vulnerable group
or groups is at risk of being lost. If the special needs of socially excluded people are not able to be proactively managed, the right to review of
those people may be effectively lost and their access to justice through the exercise of the jurisdiction might be effectively denied. The paper suggests
that while the gains of efficiency and transparency are important, ensuring that the special needs of the most vulnerable applicants are met should
be a twin goal for the new SACAT.

CATs legislation and access to justice

The CATs legislation in all Australian States and Territories emphasises accessibility and fairness, although with varying degrees of articulation in each
of the statutes.There is a variety of means by which accessibility can be promoted and supported by CATs, such as through the availability of information
and the procedures adopted by the Tribunal. The manner in which the rights to representation and costs are managed, the availability of informal resolution
of disputes and its physical accessibility will all affect whether a tribunal’s services and functions are easily recognised and understood by applicants.
Many of the measurements of accessibility may develop with the culture and maturity of the Tribunal, however it remains the case that where new CATs
are established, the legislative desiderata will set the scene.

The arguments in favour of CAT establishment go beyond administrative and financial efficiency. They extend to the promotion of access to justice in a
broad sense, that a CAT will be an easier single place to find most of the review and decision making bodies that may be relevant to members of the
public and their disputes. CATs will provide a single way to approach or apply for dispute resolution in relation to a myriad of decisions and to apply
a single set of procedures. In addition, access to justice will be supported and promoted from the other side of the bench, that it will provide a
centralised system of review and decision making, ensuring both greater accountability and more consistent and higher quality outcomes. Prior to joining
a CAT, a small tribunal or board may have heard only few matters over a year, and so its members obtained limited consistent experience in managing
decision making. As part of a larger tribunal the jurisdiction is exercised in an environment suffused with experience and decision making best practice.
As it becomes easier for an applicant to get his/her matter into the tribunal, the matter will also be more efficiently dealt with, in the same environment
and with the same processes, resources and expectations that apply in larger, busier but no more important jurisdictions, by the same experienced decision

The legislation least forthcoming in articulating accessibility is the earliest, namely the Victorian legislation establishing VCAT in 1998.[4]That
legislation states that its simple purpose is the establishment of the Tribunal, with no specification of its objects. However, the Three Year Strategic
Plan for VCAT issued in 2010[5] identified fair and efficient decision making and improving access to justice as its primary priorities, also referring to ‘engaging with the community’
and ‘an ADR centre of excellence’. The VCAT Strategic Plan for 2014-2017 includes a Customer Charter, predicated on ‘low cost, accessible, efficient
and independent’ high quality dispute resolution.The plan is subtitled Building a Sustainable VCAT, and focuses on modernising service
delivery in order to reduce hearing waiting times; improving efficiency; providing better access in a physical sense (hearing locations and hearing
room functionality); community involvement and engagement; and ongoing training for Members and staff.

The next legislation, in time, establishing the WA CAT was more explicit.[6]Section
3 included in its objectives the resolution of matters ‘fairly, and according to the substantial merits of the case’, acting speedily and with as little
formality and technicality as practicable and to minimise costs.[7]Section
32 of the SAT Act deals with Tribunal procedures, specifying that the Tribunal is bound by the requirements of procedural fairness, is not
bound by the rules of evidence but is to act according to equity, good conscience and the substantial merits of the case and may determine its own
procedure. In addition, the Tribunal is enjoined to ensure that the parties understand the proceedings, including assertions against them and their
legal implications, and upon request the Tribunal is to explain its decisions, procedures and directions to parties.[8]Section
87 provides that unless otherwise directed parties to proceedings before the Tribunal should bear their own costs.

The QCAT legislation[9] addresses the matter of accessibility very directly. One of its objects is to have the Tribunal ‘deal with matters in a way that is accessible, fair,
just, economical, informal and quick’, as well as to promote the quality and consistency of tribunal decisions and decisions made by decision makers.
These objects are amplified in section 4, which requires the Tribunal to ‘facilitate access to its services throughout Queensland’, encouraging
‘early and economical resolution of disputes’, ensuring proceedings are conducted in an appropriately informal manner and, as well as requiring
the maintenance and use of members’ specialist knowledge and the encouragement of conduct to promote ‘the collegiate nature of the tribunal’, an
injunction to ‘ensure the tribunal is accessible and responsive to the diverse needs of persons who use the tribunal’.[11]Section
28 of the QCAT Act enables QCAT to set is own procedures, acting fairly and with regard to the substantial merits of the case,
and complying with the requirements of natural justice, not bound by the rules of evidence, and with as little formality and technicality as possible,
and with appropriate speed.Section 29 reflects the WA provision, requiring the Tribunal to take reasonable steps to ensure that parties understand
the issues before the Tribunal and its proceedings and decisions, but it goes further and provides that the Tribunal must also take all reasonable
steps to ‘ensure proceedings are conducted in a way that recognises and is responsive to’ cultural diversity, and the needs of a party where the
party is a child or a person with impaired capacity or physical disability.[12]Section
43 of the QCAT Act addresses representation, and specifies that the main purpose is to have parties represent themselves unless the interests
of justice require otherwise; it permits representation with leave in specified circumstances.It includes provisions for alternative (or ‘additional’)
dispute resolution (ADR) services to be provided by the Tribunal, including mediation,[13] and provides that unless otherwise directed, parties bear their own costs.[14]

The NSW Act establishing NCAT[15] also identifies accessibility and responsiveness among its primary objects[16],
with familiar injunctions relating to being just, quick, cheap and as informal as possible, producing decisions that are ‘timely, consistent and of
high quality’. It also prescribes a ‘guiding principle to be applied to practice and procedure’:[17] the facilitation of just, quick and cheap resolution of ‘the real issues in the proceedings’. This guiding principle is required to be implemented
in the exercise or interpretation of any power under the NCAT Act or Rules. Section 37 of the Act promotes the use of ‘resolution processes’,
including ADR, and section 49 provides that hearings are to be open unless otherwise directed.

In the ACT the CAT legislation[18] provides similar legislative objects for the Tribunal, although focussing more specifically on the quality of the Tribunal’s role, but directing that
‘access to the tribunal is simple and inexpensive for all people who need to deal with the tribunal’.[19]Section
7 spells this out in ‘Principles applying to the Act’, in particular specifying that the Tribunal is to ensure as many simple, quick, inexpensive and
informal processes as are consistent with achieving justice, and to comply with the requirements of natural justice and procedural fairness. Section
30 provides that representation (‘by a lawyer or someone else’) is of right; Division 5.3 makes provision for the use of ADR by the Tribunal; section
38 provides that hearings will in general be held in public; and section 48 provides that, again in general (the Tribunal may order otherwise), parties
are to bear their own costs.

Finally the Northern Territory legislation is similar to the South Australian enactments concerning accessibility, specifying that the Tribunal must be
‘accessible to the public by being easy to find and access’, and ‘responsive to parties, especially people with special needs’. In addition, it requires
the Tribunal to process and resolve proceedings ‘as quickly as possible, while achieving a just outcome’, including the use of mediation and ADR where
appropriate and using straightforward language and procedures and acting with as little formality and technicality as possible, and ensure flexibility
in its procedures.[20]Section
54 reflects the provisions in the WA and NSW legislation requiring the Tribunal to ensure that parties understand the matters in the Tribunal and the
Tribunal’s procedures, decisions and directions.Section 62 requires hearings to be in public unless otherwise directed, and the NTCAT Act makes provision for the tribunal to use a variety of ADR processes for dispute resolution.[21]Section
130 deals with representation, permitted of right. Section 131 provides that it is to be expected that parties will bear their own costs.

All these provisions in the relevant CAT statutes are relevant to whether the CAT is focused on accessibility for applicants. The culture of a tribunal
is formed around the objectives in the establishing legislation and the purposes articulated at its commencement. However, the reality of access to
justice for applicants to the CAT in practical or substantive terms inevitably goes beyond legislative provisions and statements in Objectives clauses.

The SACAT legislation

South Australia’s Civil and Administrative Tribunal (SACAT) was established by legislation passed in 2013, and has been hearing and determining matters
since 30 March 2015.[22]

The objectives of the SACAT Act are ambitious and impressive: they include the promotion of ‘the best principles of public administration’ in
decision making, including independence in decision making, procedural fairness, high quality and consistent decision making, and transparency and
addition, the objectives include significant access to justice objectives, such as accessibility ‘by being easy to find and easy to access’, and responsiveness
to parties ‘especially people with special needs’, that applications are ‘processed and resolved as quickly as possible while achieving a just outcome’;
keeping costs to a minimum, using straightforward language and procedures, acting with as little formality and technicality as possible, and being
flexible in the conduct of matters in terms of procedures.[24]There
is clearly commitment and focus in the Act and the intended operations of SACAT, on enhanced access to justice as well as efficiency. Indeed, these
were matters emphasised by both the SA Attorney General and the SACAT President at the commencement of SACAT’s operations: the Attorney emphasised
the ‘huge step forward for the justice system in South Australia’, and indicated that the ‘streamlining’ provided by SACAT would ‘offer real benefits
for the public and the justice system’.[25]The
SACAT President, Justice Parker, in referring to the emphasis in the Tribunal on accessibility and efficiency for the public, said that ‘SACAT has
been provided with the tools to be as flexible as possible so as to handle matters in the most appropriate way, which will be determined on a case-by-case

Not articulated, but implicit in the SACAT model, is understanding that the Tribunal will be more accessible and will achieve better and more consistent
processes for dispute resolution, including in hearings and as a result, in outcomes, in relation to matters previously managed and determined by the
myriad individual tribunals and other previously isolated and self-contained decision-making jurisdictions.[27]

The intention is that SACAT will gradually accrue further jurisdictions over a staged process over time. Its commencement jurisdiction has included residential
tenancy disputes and guardianship and mental health, which are both large volume jurisdictions. It also has jurisdiction over the appeals in public
and community housing matters, previously within the jurisdiction of the Housing Appeal Panel (HAP).[28]The
SACAT Act preserves all existing appeal rights arising in the jurisdictions transferred and they are managed within the SACAT structure.

In the SA legislation, ‘accessibility’ is referred to in an expansive manner, that is it refers to SACAT as ‘accessible by being easy to find and easy
to access’, and is linked in the same provision as also being ‘responsive’ to parties.[29]The
Objectives state that this accessibility is to be achieved in a number of ways, such as timeliness in processing and resolving matters and the use
of ADR and mediation. They also cite aims of keeping costs to a minimum, using straightforward language and procedures, acting with as little formality
and technicality as possible and being flexible in its procedures ‘to best fit the circumstances of a particular case or a particular jurisdiction’.
Some of these objectives are expanded upon in section 39 of the SACAT Act, ‘Principles governing hearings’.The SACAT legislation makes
provision for compulsory conferences in certain circumstances,[31] and mediation,[32] which can be required by the Tribunal. Representation is of right,[33] and costs are to be generally borne by the parties.[34]

Regulations, Rules and Directions pursuant to the Act may give a more specific sense of how these provisions might affect substantive access to justice
and also suggest the manner of operation of the Tribunal ‘on the ground’.The SACAT Regulations provide for an application fee for the commencement
of proceedings, with some applicants in select jurisdictions provided with exemption from the payment of the fee.[35]Applicants
seeking review of public housing decisions in SA are not exempt from payment of the application fee but the fee can be waived, remitted or refunded
by order of the Registrar on the grounds of financial hardship,[36] or by a tribunal member if ‘it is fair and appropriate’.[37]Without
such a determination otherwise by a Presidential member, a matter cannot proceed without the payment or waiver of the fee.[38]There
are provisions in the Rules concerning the necessary documentation and procedure for fee waiver applications and there is room for flexibility in these

From the outset the SACAT has adopted a number of practices to enable and support its aims of efficient operations. These include providing for online
applications, supported by an 1800 phone line, and free public computer access at the Registry assisted by community access officers.[39] The provision of tribunal documents and communication with parties are also done electronically and with reliance on case management software. A cause
list of hearings and conferences is published daily on the web site, other than in relation to guardianship, administration, mental health and consent
to medical treatment cases, where for privacy reasons parties are notified directly.

Oral hearings are conducted in public[40] and ADR processes, in particular mediation and conciliation, are to be widely used by the Tribunal in all of its jurisdictions with the expectation
that this will significantly reduce the number of matters proceeding to a hearing. SACAT has established its jurisdiction in broad groupings through
Streams. These are: Community (incorporating guardianship, administration and mental health); Housing and Civil (including residential tenancies matters)
and Administrative and Disciplinary (including review of government decisions, incorporating the review of public housing decisions formerly heard
by the HAP). The Streams enable the maximising of tribunal member competencies and experience. The Community Stream currently operates from a satellite
location and may conduct hearings as required at other locations, such as hospitals. Otherwise the SACAT is to be a ‘one stop shop’ in relation to
all the other jurisdictions subsumed by SACAT, and this expected to continue to be the case with additional accrued jurisdictions over time. There
may also, therefore, be the perception that, in terms of access to justice, it seems that ‘one size fits all’ across all applicants before the SACAT.

Questions arise concerning how jurisdictional specialities and differences in applicants are to be proactively managed in processes that are inclusive
of any previously existing excellence and management of particular needs.Where there has previously been a highly successful small specialist jurisdiction
tribunal, easy for vulnerable applicants to find and benefit from tailored registry support, the concern may be that the quality of the previous body
may be lost in the generality of the new CAT.

A former CAT President, Justice John Chaney of the WA Supreme Court and former President of SAT, recognises the concerns that arise with the establishment
of CATs, including the possible ‘loss of specialist expertise, and increased level of formality or legality, and the application of a ‘one size fits
all’ approach to procedures which is unsuited to the wide range of jurisdictions that super-tribunals exercise’.[41]It
is noted however, his view is that these concerns are not borne out in practice, and ‘the benefits which have been identified in the way of accessibility,
efficiency, flexibility, accountability, consistency and quality have all come to pass’.[42]

Access to justice and legal needs in Australia

The focus on a particular group of applicants is an approach that reflects the method of research into access to justice in Australia and internationally.
Access to justice research seeks to measure the legal needs within a community through empirical research and by identifying the groups which experience
significant unmet legal needs and barriers to legal services. Due to the persistent absence of comprehensive and reliable data research in Australia,
it is difficult to identify an evidenced based picture of the groups in the community experiencing the highest legal needs. There is, however, significant
evidence that public housing tenants are amongst the most socially excluded and high legal needs groups in the Australian community.[43]

Legal needs research has always benefited greatly from the perspectives of the community legal sector and the data produced relating to their work within
the community.Access to justice relating to users of public and community housing is no exception. Analysis of the information gathered by community
legal centres provides important insights into the legal needs of people experiencing housing stress and at risk of homelessness in Australia. The
community legal sector has been at the forefront of developing integrated legal service responses for the homeless in direct response to their clients’
legal needs.It has also contributed significantly to legal research through data collection and reporting on its complex casework. In addition to the
daily work done by most generalist centres, all Australian states and territories have specialist homelessness and housing legal services, which use
a multi-disciplinary approach to combining casework with outreach services, advocacy through in-house social workers and delivery of specialist community
legal education programs.[44]Some
of these specialist centres have also developed mutually beneficial partnerships with private pro bono law practitioners, key government agencies such
as public advocates, trustees and tribunals, and the peak tenancy and homelessness organisations. Many also partner directly with a non-government
seniors organisation which provide helplines, manage phone enquiries and facilitate legal, financial and other referrals.[45]

Although these specialist community services produce quality data concerning the access to justice issues faced by people at risk of homelessness, they
are generally unable to examine, analyse or investiga

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