Page 3285 - Week 09 - Tuesday, 19 August 2008
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comments. I will, however, briefly reiterate the substantive content of that response for the benefit of members.
The committee expressed a concern that inclusion of small claims could pose a rights issue, submitting that the tribunal does not have the degree of independence from the executive as possessed by the courts, that it does not comprise people with the same degree of legal experience as judges or magistrates and that the ability to dispense with the law of evidence and fashion its own procedure may offer less protection to litigants.
In response, as I have explained previously, I would say that allowing the ACAT to hear and determine small claims matters allows for increased access to justice, by providing a more appropriate and accessible forum for small claims hearings. Incorporation within a consolidated tribunal provides the possibility of an accessible jurisdiction for dealing with small civil matters. It would also provide a better fit, as a one-stop shop for arranged related claims presently associated with residential tenancies, building disputes and utility matters.
The bill requires that, before the general president allocates a case, he or she must consider the nature and complexity of the case and whether to allocate a member with special qualifications and expertise to handle the case. This is exactly the point Dr Foskey raises. The general president will have the ability to do that. It should be noted that, within the existing ACT tribunals, a number of tribunals handle a large number of what might be considered small civil disputes, such as the Residential Tenancies Tribunal.
With respect to procedure, although the certainty created by rules can be desirable, excessive and unnecessary rigidity in procedure may frustrate access to justice and lead to unjust outcomes, particularly in relation to the subject matter to be dealt with by the tribunal. The tribunal and its members must have an appropriate level of flexibility to deal with individual cases and not be unjustifiably bound by rules inappropriate in the circumstances which may create additional costs and unnecessary delays. The bill strikes a balance between certainty and flexibility by allowing the tribunal to determine procedural rules for general application whilst allowing for flexibility in the appropriate circumstances.
With respect to the committee’s concerns in relation to allowing a rule to prescribe a longer time for doing a thing than was initially prescribed in the act, I note that a rule may only extend, and may not shorten, the time for doing a thing under the act. Lengthening the time available to complete a process is more likely to result in greater fairness and improved access to justice.
I also thank the committee for its suggestion that notes to subclause 41 (1) and clause 33 should refer to sections 170 and 171 of the Legislation Act 2001 so that privilege against self-incrimination is explicitly preserved in the bill. This suggestion has been incorporated into the foreshadowed government amendments.
In response to the committee’s comments on the closed hearing provisions, it is a fundamental principle of our justice system that justice must not only be done but be
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