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