Page 2553 - Week 07 - Thursday, 18 June 2009
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makes those necessary amendments, which will see the ACAT being given jurisdiction in relation to occupational disciplinary orders pursued under part 5.4 of the CTP legislation.
Mr Speaker, given its relevance to this subject, I take the opportunity here to address the comments made by the Standing Committee on Justice and Community Safety in their scrutiny of bills report No 6, which was released on 4 May 2009. As I have indicated to the committee, there were no recommendations made in relation to their comments; additionally, the comments that were made are largely directed at ACAT rather than at the provisions of the bill per se.
In particular, the committee drew attention to the powers vested in ACAT by this bill—specifically, the conferring of a power to levy a financial penalty on a licensed CTP insurer where an occupational discipline order is made. I note that the committee describes this financial penalty as akin to the imposition of a fine by way of a penalty for a criminal offence. However, I would emphasise that this is essentially a civil penalty, and as such is significantly different from a criminal penalty, which carries with it an array of associated and potentially quite damaging costs by implication.
ACAT is an entity that in many respects exercises a range of powers, some similar to powers of a judicial nature and some more closely aligned with the traditional functions of a tribunal, being administrative in nature. While it is acknowledged that the power conferred by this law on the ACAT is close to being judicial in nature, any attempts to classify such an entity as a court or something like a court would be a barren exercise. The central question here is whether this is an appropriate power to be vested in ACAT.
In terms of efficiency, the public interest is likely to be best served by a single body with the power to conclude the matter in its entirety rather than several different bodies having to determine different parts of the same matter.
In terms of rights, noting the committee’s comments with regard to the nature of the doctrine of separation of powers as it applies in the territory, it can ordinarily be expected that matters of this nature would be dealt with by a senior or presidential member of the tribunal. Additionally, there is judicial oversight within the ACAT process under division 8.2 of the ACAT Act, where the power to refer certain matters and appeals to the Supreme Court is conferred.
The ability to make a civil penalty order with respect to an amount to be paid to the territory or someone else is already envisaged within the existing ACAT legislation under section 66(2)(h). Additionally, since the Consumer and Trader Tribunal was established in 2003, its power also extended to the making of civil penalty orders. Hence, the provisions proposed in this bill are not unique and should be considered in this context.
Moreover, as I explained earlier, the role to be assumed by ACAT was previously conferred on the Consumer and Trader Tribunal under the CTP act, which came into effect on 1 October 2008. The previous jurisdiction of the Consumer and Trader Tribunal extended the civil penalties applicable so as to already apply a penalty limit
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