JUSTICE LEGISLATION AMENDMENT BILL 2015 Second Reading Speech

Northern Territory Second Reading Speeches

JUSTICE LEGISLATION AMENDMENT BILL 2015

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, move that the bill be now read a second time.

The purpose of this bill to amend several acts and regulations within the justice legislation portfolio including the Anti-discrimination Act, the Fences Act, the Information Act, the Residential Tenancies Act and the Northern Territory Civil and Administrative Tribunal Act.

Part 2 and 3 of the bill amends the Anti-Discrimination Act and Anti-Discrimination Regulations to reform the complaint process to provide a quicker process for parties to enable the process to operate more efficiently with reduced resources.

The Anti-Discrimination Act promotes equality of opportunity in the Northern Territory by protecting persons from unfair discrimination in certain areas of activity, and from sexual harassment and associated objectionable conduct and to provide remedies for persons who have been discriminated against.

One of the functions of the Anti-Discrimination Commissioner under the Anti-Discrimination Act is to carry out investigations and hearings into complaints made under the act and to endeavour to effect conciliation. Complaints are made to the Anti-Discrimination Commissioner regarding prohibited conduct which is defined as meaning:

(a) discrimination other than discrimination exempted from the application of the Anti-Discrimination Act, or

(b) sexual harassment, or
(c) victimisation, or
(d) discriminatory advertising, or
(e) seeking unnecessary information, or
(f) failure to accommodate a special need, or
(g) aiding a contravention of the Anti-Discrimination Act.

Part 6 of the Anti-Discrimination Act sets out the procedure for the resolution of complaints. In order for a complaint to be ultimately substantiated it must pass through three possibly four stages: acceptance, investigation, conciliation possibly, and hearing.

A long running review of the Anti-Discrimination Act identified a need to improve time lines for complaint handling. The amendments in this bill respond to that need and are intended to make the process of resolving anti-discrimination complaints quicker and fairer. The bill therefore amends the Anti-Discrimination Act to replace the investigation stage in Part 6 Division 2 with an evaluation for hearing stage by clause 24 of the bill.

Currently, on accepting a complaint under the Anti-Discrimination Act, the commissioner must carry out an investigation and, on completing an investigation, the commissioner must determine whether there is a prima facie case for proceeding to conciliation or a hearing. If it is determined that there is no prima facie case the complaint is dismissed, but if the commissioner is satisfied that there is prima facie evidence to substantiate the allegation of prohibited conduct in the complaint, the complaint proceeds to conciliation or, if the commissioner believes it cannot be resolved by conciliation, to a hearing.

The requirement for a prima facie test has proven to be too low a test and is not always an effective way of screening to determine whether matters have reasonable grounds to proceed. The test is also complex and is not always understood by the parties.

Clause 24 therefore replaces the investigation stage following acceptance of a complaint with a process of evaluation to establish if a complaint should proceed to a hearing. The new test during evaluation considers such things as whether the matter has a reasonable prospect of success. The new evaluation stage includes powers of inquiry to decide if a complaint should be referred to hearing in totality or on particular grounds. Such powers of inquiry are available where necessary (they will not be required in every case) and included power to issue a notice to produce documents to a person and to require witness statements or that a party provide a statement or information on oath. While the powers will assist the commission in better evaluating complaints, they will also reduce delay and assist in the quality of evidence in cases where there are self-represented parties.

Clause 11 extends the limitation period to making a complaint from six to 12 months. Section 65 of the Anti-Discrimination Act currently provides for a six-month time limit on which to make a complaint, although the commissioner has discretion to allow the extended period of time for received a complaint beyond the six-month time limit.

The commissioner receives a large number of complaints outside the six-month statutory limit and the number is increasing. The current process for determining whether to exercise the discretion to extend takes approximately six months. This compounds the delay for the party if the complaint is accepted. In a majority of cases matters outside the six months that fall within the 12 months are accepted, but only after considerable delay because of the processes of determining whether to extend the time limit.

Therefore, clause 11 amends section 65 and provides a 12-month limitation period, which will enable complaints which otherwise would have required consideration for extension to be handled as complaints immediately, and potentially resolve matters sooner. All other jurisdictions in Australia will provide at least a 12-month limitation period and the amendment will bring the NT in line with these jurisdictions.

Clause 13, through the new section 66B, allows the Anti-Discrimination Commissioner to require a respondent during the acceptance stage to provide a written response to issues raised in the complaint. When a complaint is made to the commissioner, it is currently only able to be assessed on the complainant’s version of events. The provision was intended to enable a complaint to be assessed without the respondent being informed and it is considered important protection for complainants.

However, the amendment in clause 13 enables the Anti-Discrimination Commissioner to seek a response from a respondent to assist in determining whether to accept a complaint. In many instances where a complaint is eventually sent to the respondent, their response makes it clear that the matter is not a complaint that the commissioner should continue with. For example, it may become apparent from the respondent that a complaint about being refused accommodation because of gender is in relation to the respondent renting out a room in their own home. This type of discrimination is exempted under section 40 of the Anti-Discrimination Act. This amendment is intended to provide more flexibility around the process so the commissioner is able to respond to the very different complaints received, and dismiss complaints which are baseless, exempt, or otherwise not able to be continued with under the Anti-Discrimination Act.

Clause 24 in the new section 84 enables the Anti-Discrimination Commissioner to issue a notice in writing to a party to compel the production of documents or information during an evaluation. Currently in accepting a complaint, the commissioner is limited the information and documents voluntarily provided by the complainant, and the freedom of information applications. Providing the commissioner with the power to compel the production of documents and information will assist the commissioner is assessing complaints, improving the quality of relevant material. It also brings the power of the commissioner in line with other discrimination jurisdictions.

Clause 13 in the new section 66E further provides that the Anti-Discrimination Commissioner with the power to take no further action on a complaint. The commissioner at times has complaints that need to be discontinued, but the commissioner has no power to end the matter. In these circumstances the commissioner may be reliant on a party to withdraw their complaint under section 71, or for the complaint to lapse under section 72 of lack of interest, neither of which may be possible or wanted by the parties. Often the matters need to be ended due to no fault of the complainant, for example, if the respondent is a body corporate which no longer exists. The result of this is that the complaint remains as an open-ended matter listed with the commissioner, though it cannot progress.

Clause 19 repeals and inserts new section 79 to allow the Anti-Discrimination Commissioner to direct a person to participate in conciliation. Conciliations conducted under the Anti-Discrimination Act are protected. That is, no evidence can be used in relation to a complaint outside of the conciliation. It is anticipated that early conciliations will assist with the resolution of complaints.

Clause 24, by new section 86, refers the jurisdiction to the hearings under the Anti-Discrimination Act to the Northern Territory Civil Administrative Tribunal, known as NTCAT. By providing that hearings will be referred from the Anti-Discrimination Commissioner to NTCAT following evaluation there is a reasonable prospect of success of the hearing.

Clause 40 provides for transitional amendments following the commencement of the amendments to the Anti-Discrimination Act. The bill also amends the Anti-Discrimination Act to apply to the principles of criminal responsibility set out in Part 2AA of the Criminal Code Act.

Part 5 of the bill amends the Information Act to include information created under the Anti-Discrimination Act as exempt under section 44 of the Information Act because it is not in the public interest to disclose the information. The exemption will apply generally to information collected or provided as part of the formal complaint process which includes conciliations, and to other information or advice provided to or by the Anti-Discrimination Commissioner that would reasonably be expected to be confidential, such as personal confidential inquiries from the public. It will not apply to other functions of the commissioner such as education or research functions or to operational matters of the commission.

Currently the commissioner relies on the tribunal exemption for bodies other than the court established by or under the act that has judicial or quasi-judicial functions. However, the exemption is no longer appropriate given that the hearing function is being transferred to NTCAT. This new section 49D is anticipated to assist in the resolution of complaints by conciliation as it prevents the release as a result of freedom of information application. It is of any material provided in confidence by a party.

I will now turn to other aspects of the bill. As you will be aware NTCAT commenced operating on 6 October 2014. NTCAT is designed to be a one-stop shop for reviewing a wide range of administrative decisions and resolving certain civil disputes. The NTCAT can be given both original – that is administrative decisions that can be made in the first instance - and review jurisdiction. Where NTCAT is given original jurisdiction decisions will usually be made by one general member of NTCAT. Review decisions will be generally considered by a legal member or panel of members.

The jurisdiction of NTCAT will expand over time with new jurisdictions gradually being conferred by legislation and phased into its business. Currently NTCAT has a limited jurisdiction, including lands and planning matters, mining tribunal matters and licensing matters. Relevant residential tenancy matters are currently being heard by NTCAT members as delegates of the Commissioner of Tenancies. The full transition of residential tenancy matters to NTCAT is anticipated to occur in the first half of 2015.

The NTCAT represents a major step in improving access to justice for all Territorians. However, as with all major reforms it is necessary to continually evaluate and monitor the implementation of the reforms to ensure, particularly in the early stages, that they are operating as effectively as possible. Accordingly, Part 6 of the bill makes a number of amendments to the Northern Territory Civil and Administrative Tribunal Act to improve the operation of the act - amendments that have been identified during NTCAT’s first six months of operation.

Clause 53 omits section 84 which currently provides the enforcement of NTCAT orders, and replaces it with a more comprehensive enforcement regime.

Section 84 of the Northern Territory Civil and Administrative Tribunal Act currently reflects a policy position that prosecution is the main tool for encouraging compliance with NTCAT orders. Section 84 therefore creates an offence for failing to comply with an order of NTCAT, punishable by up to 100 penalty units or imprisonment for six months.

Although the threat of arrest and possible imprisonment under section 84 is anticipated to be an effective enforcement tool for most people, concern has been raised as to whether it will adequately address all situations. For example, imprisonment will not necessarily assist a person to receive money owed to them under a compensation order or to give effect to the termination of a lease. In those cases, for example, a warrant of seizure and sale or a warrant of possession that can be enforced by a court bailiff may be more appropriate. While section 84(1) allows for costs orders to be enforceable in an appropriate court as a debt, the definition of ‘costs orders’ applies only to orders relating to the costs of proceedings, not to monetary orders for compensation or non-monetary orders requiring a person to do or refrain from doing an action. It is therefore proposed to enhance the current enforcement powers to create a full suite of appropriate enforcement tools.

Section 84 is being added to allow for monetary orders to be registrable and enforceable as an order of the court of competent jurisdiction. Monetary orders under the new section 84 include all compensation orders and costs orders as well. The current jurisdictional limit of the Local Court is $100 000. This means that any monetary order below that amount is registrable and enforceable as an order of the Local Court. Any order of the NTCAT relating to an amount in excess of $100 000 is registrable and enforceable as an order of the Supreme Court.

New section 84A creates a separate provision relating to the enforcement of non-monetary orders. This section clarifies that generally non-monetary orders of the NTCAT are all to be enforceable as orders of the Local Court. However, it is likely that there may be circumstances where a non-monetary order of the NTCAT would be appropriately enforced by the Supreme Court, for example, where the order is likely to involve complex matters or relate to a large asset.

In those cases the relevant act conferring jurisdiction on the NTCAT could specifically override the new section 84A so that such orders are enforced as Supreme Court orders. This is possible due to section 5 of the Northern Territory Civil and Administrative Tribunal Act which specifically provides that if there is an inconsistency between the Northern Territory Civil and Administrative Tribunal Act and the relevant act then the relevant act prevails. Section 5 also provides that a relevant act may modify the Northern Territory Civil and Administrative Tribunal Act in relation to an exercise of jurisdiction conferred by that relevant act.

To ensure that the full suite of enforcement tools is available in relation to all other orders of the NTCAT, it is proposed to make these amendments retrospective so that any other order made by NTCAT since its inception on 6 October 2014 is enforceable under the new enforcement provisions.

It should be noted that the current offence provision in section 84 is preserved at the new section 84B. This will allow for the prosecution of a person if they do not comply with an order of the NTCAT. It is also proposed to amend section 140 and insert a new section 140A of the Northern Territory Civil and Administrative Tribunal Act.

Firstly, it is proposed to insert the new section 140A to clarify the parties to a review of original decisions made by the NTCAT. The new section 140A provides that NTCAT is not a party to a proceeding for a review of the decision of the NTCAT in the exercise of its original jurisdiction.

Section 140 of the Northern Territory Civil and Administrative Tribunal Act allows for a person to appeal against a decision made by the NTCAT in its original jurisdiction. Section 127(1)(c) provides that the decision-maker is a party to the proceeding. While it makes sense that the decision0maker is a party in matters where NTCAT is reviewing the original decision of another decision-maker, it is not appropriate for the NTCAT to be a party in matters where it would be reviewing its own decision.

Section 140 is also amended to insert new subsection 1A to allow the regulations to exclude specific decisions of the NTCAT from becoming reviewed by the NTCAT. This regulation-making power is intended to be used only in limited and appropriate circumstances. For example, regulations could exclude original decisions of the NTCAT where it is anticipated that original decisions may involve complex matters and be likely to require an original hearing by more than one member, including a legal member. Importantly, it should be noted that any regulation excluding a decision from the appeal right under section 140 does not affect the ultimate existing right to appeal a decision of NTCAT to the Supreme Court under section 140 on the question of law.

Accordingly, Part 7 of the bill proposes to make amendments to the Northern Territory Civil and Administrative Regulations to prescribe under new section 140(1A) certain suitable original decisions of the NTCAT under the health practitioner regulation national law.

The Health Practitioners Act is being amended by the Northern Territory Civil and Administrative Tribunal (Conferral of Jurisdiction Amendments) Act 2014, the relevant aspect of which is anticipated to commence in mid-2015.

These amendments replace the Health Professional Review Tribunal with the NTCAT for the purposes of the Health Practitioner Regulation National Law. The new Part 3 of the Health Practitioners Act sets out processes and procedures of the NTCAT consistent with the national law, including requiring constitution by a panel of three when determining matters under the Health Practitioner Regulation National Law. However, section 22 of the Northern Territory Civil and Administrative Tribunal Act limits the NTCAT in the sense, that for any matter, the maximum number of members that can constitute the NTCAT is three.

Therefore, in the case of reviews under the Health Practitioner Regulation National Law where the NTCAT has an original decision referred to it under section 196 or 197 of the Health Practitioner Regulation National Law, this would result in the situation where there would be a duplication, such as two full hearings before a panel of three. This introduces a new appeal right which does not currently exist and is not what was intended by the Australian Health Practitioner Regulation Agency. This is the type of unintended and inefficient circumstances where it would be appropriate to exclude the original jurisdiction of NTCAT from an internal review by the NTCAT under section 140.

Part 4 of the bill makes minor technical amendments to the Fences Act. The Fences Act was recently amended by the Northern Territory Civil and Administrative Tribunal (Conferral of Jurisdiction Amendments) Act to confer the current jurisdiction of the Local Court under the Fences Act to NTCAT. However, a small number of references to court in section 5(2), 8(2) and 15(6) of the Fences Act were inadvertently missed during the drafting process and were not converted to references to the NTCAT. Part 4 of the bill corrects these references.

Finally, Part 8 of the bill amends sections 122 and 170 of the Residential Tenancies Act in minor respects and are similar to the amendments in the Fences Act. The Northern Territory Civil and Administrative Tribunal (Conferral of Jurisdiction Amendments)(No 2) Act of 2014 will amend the Residential Tenancies Act to confer the current jurisdiction of the Commissioner of Tenancies on NTCAT. However, a small number of references to the commissioner in section 122 were inadvertently missed during the drafting. These references are being corrected and replaced with references to NTCAT.

The amendments proposed in this bill will significantly improve the complaint process under the Anti-Discrimination Act and the effectiveness of NTCAT. I gratefully commend the bill to honourable members and table a copy of the explanatory statement.

Debate adjourned.

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