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Monday, January 19, 2009

NSW ADT to decide whether an agent helps or hinders a client

One unheralded change in the operation of the NSW Administrative Decisions Tribunal that came into force on 1 January as a result of the Administrative Decisions Tribunal Amendment Act 2008 No 77 is that the Tribunal now has powers (Schedule 1 Clause 20) to disallow an application by a a non-lawyer to represent a party in proceedings.The explanation given to the Parliament for the change was as follows:
"The Administrative Decisions Tribunal Act currently allows a party to be represented by an agent. The tribunal has advised that on occasions certain repeat applicants before the tribunal have sought to appear on behalf of other applicants. The tribunal has advised that these agents do not always have the same degree of professional detachment or restraint that may usually be expected of representatives appearing on behalf of others in the tribunal and, as such, the representation may not be in the best interests of the applicant. The bill therefore provides that representatives may appear only on behalf of parties in proceedings if the tribunal grants leave to do so. An application to act as a party's representative may be made for any part of the proceedings. Legal practitioners who are suitably qualified and have fiduciary obligations to their clients may continue to appear as of right. This amendment is not designed to deprive applicants of representation in circumstances where it is required; rather, the purpose is to ensure that applicants are not placed at a disadvantage. The bill provides for the making of rules to guide the tribunal and prospective representatives as to the criteria to be considered when the tribunal is deciding whether to grant leave. It is anticipated that the procedure set out in the Consumer, Trader and Tenancy Tribunal Regulation 2002 for the appointment of agents in the jurisdiction will be used by the tribunal as a reference point when drafting its rules on this issue.
Relevant criteria included in the Consumer, Trader and Tenancy Tribunal Regulation include the tribunal being satisfied that the representative is competent to represent the party. In particular, the tribunal will need to be satisfied that the representative has sufficient knowledge of the issues in dispute to enable the party's case to be effectively represented in the tribunal, and that they are vested with sufficient authority to bind the applicant. Other matters set out in the Consumer, Trader and Tenancy Tribunal Regulation may also inform the making of rules in the Administrative Decisions Tribunal concerning representation by agents, including the tribunal considering whether the party will be placed at a disadvantage if not represented by an agent, and the complexity of the issues. That is a relevant and appropriate amendment to make to the Act because there are times when people appearing as agents, although well intentioned, do not represent the best interests of the party. The tribunal then is forced to make a decision in the best interests of the party. These productive and appropriate amendments will ensure that there is full transparency when dealing with matters involving public administrators. For those reasons I commend the bill to the House."
I've no idea how big a problem the Tribunal has with agents who don't show proper professional detatchment and restraint, or who are said to have hindered rather than helped the applicant they represent.
(Disclosure- I have and continue to represent parties in the Tribunal).

But it's worth noting that the Amendment Act does little to address what some would consider higher priorities, for example to fix all sorts of problems and uncertainties that have cropped up in the Freedom of Information and privacy areas which have seen a decade of cases and large amounts of public money spent on jurisdictional issues and arguments.

Only one speaker raised any concerns about the new Tribunal powers: The Greens Lee Rhiannon on 21 October in the Legislative Council:
"The Greens are concerned about the proposed amendment that requires agents who are not legal practitioners to obtain leave from the Administrative Decisions Tribunal to represent a party. People should have the freedom to choose their own legal representation, even if the representative is not a lawyer. Indeed, many people cannot choose to be represented by a lawyer for the simple reason that they cannot afford one. What does the Government propose for people who do not have the money to engage a lawyer and do not have the confidence or the English skills to represent themselves? The Attorney General, in his second reading speech, stated that this amendment will redress concerns that some classes of agents who are appearing in the tribunal are not necessarily able to act in the professionally detached manner that is required in order to represent another's interests effectively. Is it not up to individuals to decide who should act for them, not for the tribunal to decide whether a representative is acting in an individual's best interests? The Greens strongly believe that the starting point should be that individuals have a right to choose their own legal representation. If a number of so-called vexatious agents are abusing the court process and not acting in a party's best interests, then a more reasonable amendment would be that the tribunal has the discretion to disallow an agent if that agent does not meet a set of prescribed standards. The express purpose of tribunals is to be an independent, accessible and cost-effective forum for individuals to seek justice. This amendment appears to take the Administrative Decisions Tribunal in the opposite direction. I want to put the Greens' concerns on the record and indicate that we will continue to monitor this area. Making the tribunal less accessible and potentially less cost-effective will not help the people who turn to this court. An amendment that takes away the presumption that people can choose their own legal representation will not approach being acceptable until the Government coughs up the funding for a community legal service that can meet demand and provide free advice and representation to clients when needed. Clearly, such a service is required in the wider community and would help to ensure the overall effectiveness of this legislation."
No sign to date on the ADT website of any rules or criteria but expect a few noses to be out of joint when the new powers are in play.

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