ABN-24359567567
Home Owners Advisory and Advocacy Service
PO Box 467 Burpengary Queensland 4505 - Tel (07) 3888 7696 - email: chair@arpq.org.au
REVIEW OF THE QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
ACT 2009 (CONTINUED)
Overview
On re-reading our submissions delivered in respect to the original 2012
QCAT Act Review we feel that all that was written and opinioned, complete
with true examples of cases and names of rogue tribunal members is
relevant to the present, nothing has changed.
It is important for us to make mention of the Manufactured Homes Residential
Parks Act 2003 (MHRPA) in this our further submissions because the residential
parks industry is the only reason we have to deal with QCAT and the experience
is most unpleasant and morally destructive.
Since 2012 we have endeavoured to educate ourselves further. We have
researched and have had many of our members deliver to us their submissions
and tribunal rulings containing the same biased decision making process in
favour of park operators. We also now have an audio disc of a hearing where
the member deliberately misled the applicant home owners of a residential park
also covered up vital evidence where a park operator openly admitted under
cross examination that he was double dipping, (charging for the same service
twice, case QCAT OCL083-11 and APL054-13).
Our main submission, in addition to the original 2012 review will deal mainly with
the discretionary powers of QCAT and the cavalier (in the adjective) approach
QCAT takes within its discretionary powers.
The ARPQ Committee
Please note: any correspondence from the Attorney General’s regarding this
submission should be sent to Mr David Paton, ARPQ Advocacy Officer, PO
Box 467 Burpengary Qld 4505
1
Discretionary Powers
Discretionary powers are described as permissive, not mandatory. They are
powers granted either under statute or delegation which do not impose a duty on
the decision maker or exercise them in a particular way. Within certain
constraints, decision makers are able to choose whether and/or how to exercise
discretionary powers.
No public official has an unfettered discretionary power. Public officials must
exercise discretionary powers in accordance with applicable legal requirements,
reasonably, impartially and avoiding oppression or unnecessary injury.
Relative Administrative Principles
In exercising discretionary powers, various principles of administrative law
requires public officials to:
(a) use discretionary powers in good faith and for proper purpose;
(b) base their decisions on logically probative material;
(c) consider only relevant considerations and not irrelevant considerations;
(d) give adequate weight to a matter of great importance but not give
excessive weight to an irrelevant factor of no great importance;
(e) exercise their discretion independently and not act under the influence or
dictation at the behest of any third party or body;
(f) give proper, genuine and realistic consideration to the merits of a particular
case, and not apply policy inflexibly;
(g) observe the basic rules of procedural fairness (example, natural justice);
Other principles of administrative law preclude public officials from;
(h) exercising a discretion in a way that is so unreasonable that no reasonable
person would have exercised the power in that way;
(i) exercising a discretionary power in such a way that the result is uncertain;
(j) acting in a way that is biased or conveys a reasonable perception of bias;
(k) making decisions that are arbitrary, vague or fanciful;
(l) refusing to exercise a discretionary power in circumstances where the
decision maker is under a duty to do so;
2
It is a serious matter for public officials to ignore valid advice or valid
considerations, particularly for the purpose of avoiding discomfort or
embarrassment on the part of the government, agency or decision maker, (refer
case QCAT OCL083-11 and APL054-13).
Implementing policies and procedures consistently
Policies should not be applied rigidly without proper consideration of the particular
circumstances and merits of each individual case. There will be occasions where
there are justifiable grounds for not following policies, practices, codes or
guidelines. Where an agency, with good and preferably documented reason,
departs from a consistent application of a policy, this does not create a precedent
which binds the agency. Such decisions are relevant and important
considerations but are not binding. Conversely, where an agency frequently
departs from or ignores a policy, the policy would seem to have little weight or
relevance and would need review.
(Reference – New South Wales Ombudsman, November 2010, reprinted March 2012)
Possible dangers of discretionary power
There seems to be an inherent danger where an entity such as QCAT is given
discretionary powers that allows tribunal members to ignore or perhaps falsify the
policy regime laid down in the Act. It is easy to arrive at this conclusion when
experience and certain claims by public officials presents a less than cautionary
approach to carrying out policy and when challenged, public officials, supported
by ministers of the crown, use legal jargon to supress awkward questions by
members of the public with no legal knowledge.
In dealing with a more suggested cautionary approach by public officials, we
make reference to a speech given by the past president of QCAT, the Honourable
Justice Alan Wilson to the Bar Association of Queensland on the 6 March 2010
and published in the “Hearsay”, the journal of the Bar Association.
At the start of the honourable gentleman’s speech, he emphasised that the
“Tribunal is not a court”. He later goes onto say that “QCAT is a court of record. In
exercising its jurisdiction, it must act independently and is not subject to the
direction or control of any entity, including any minister”. To the lay observer, this
commentary by the honourable gentleman appears to be rather a grandiose and
challenging statement. Are we, the general public, to believe that this tribunal
which is not a court, does not seem to be affected by the separation of powers, is
a government department under the Attorney General and Justice Minister can
ignore policies laid down in the QCAT Act. This is what Justice Wilson was
implying.
Further to this concern, every Attorney General from both sides of government
have continuously claimed that they have no jurisdiction over the Tribunal and yet
section 41 of the Act titled “Intervention” states very clearly that “the Attorney
General may, for the State, intervene in a proceeding at any time”. When this is
put to any sitting Member of Parliament with the portfolio of Attorney General, all
3
will say that they cannot intervene. No real reason has ever been given to support
the assertion that the Attorney General cannot intervene. Should pensioner home
owners living in residential parks accept that they are not part of the State of
Queensland?
Further, it is important to highlight one of the great anomalies of the QCAT Act
which seems to be a contradiction in terms:
Section 28 (3) – In conducting a proceeding, the tribunal--(a) must observe the rules of natural justice; and
(b) is not bound by the rules of evidence, or any practice or procedures
applying to courts of record, other than to the extent the tribunal adopts the
rules, practices or procedures; and
(c) may inform itself in any way it considers appropriate; and
(d) Must act with as little formality and technicality and with as much speed as
the requirements of this Act, an enabling Act or the rules and proper
consideration of the matters before the tribunal permit; and
(e) must ensure , so far as is possible that all relevant material is disclosed to
the tribunal to enable it to decide the proceeding with all the relevant facts.
With respect, what we are to discern from the forgoing is that all material
(evidence) may be before the Tribunal, however, the Tribunal is not bound by the
rules of evidence and can inform itself in any way it chooses with great speed, no
time to deliberate and or consider the evidence which it is not bound to consider
anyway, but the Tribunal must observe the rules of natural justice.
Add this to the comment by Justice Wilson that he is not subject to direction or
control of any entity including the Minister, obviously meaning the Attorney
General and Justice Minister, so where are the controls, it would seem that the
position of president of QCAT enjoys more dominance than the Premier of the
State or the Government.
Summary of this final submission and the review of the QCAT Act
It is very difficult not to sound critical of this whole sorry piece of legislation,
especially when decisions are handed down without any depth of explanation that
virtually destroy lives of elderly pensioners, and they are just one section of the
Queensland population we know of, which gives us reason to speculate on the
true depth of Tribunal practices.
Certainly there is no more a glowing example than case OCL083-11 which
showed without doubt the depth to which the Tribunal and government will go to
cover the tracks of misuse of power. We caught them out, we pursued them and
confronted them and all we got was a wall of silence followed by meaningless
excuses, we have a right to be very angry and to seek change through this
review. We know we are right because of what we have experienced plus the
Brisbane Court of Appeal comments about tribunal practices under Justice
4
Wilson, which is attached to this submission. Queenslander’s deserve better and
there is no reason why the ALP Government should not show the other States
what fairness and natural justice really is. At this point, knowing that Justice
Wilson has left QCAT, we have evidence that the Wilson legacy continues under
the Honourable Justice David Thomas.
The ARPQ Committee
7 May 2015
Author- David Paton by authority of the ARPQ Committee
5