Long lost review sort of surfaces, four years late.

A little reflection over the weekend led to a few additions to this item first posted last Friday.

You have to hand it to the NSW Attorney General and his Department when it comes to leaving few footprints in the exercise of some statutory responsibilities. Alerted by a comment in the Administrative Decisions Tribunal Annual Report 2007-2008, that the Government was expected to finally publish and act in spring 2008 on a review of the Tribunal's Act, mandated for 2004, the following emerged after quite a bit of digging.

If you happened across the details of documents tabled in Parliament you find the parliamentary records state the statutory review was dated June 2007 and tabled in Parliament on 3 June 2008. ( For some reason can't get the link working but it says it was tabled in the Legislative Council by Mr Roozendaal on that date).This was news to me and clearly to President O'Connor of the Tribunal who had a major interest. On 19 October 2008 he had signed off on his annual report with this comment about the review:

"The second review (under s 147) was imposed on the Minister. The Act fixed the commencement date as 2002 and the report date as 2003. On behalf of the Minister, the Department commenced the review in 2003. The public submissions process ended in 2004. That report is now expected to be delivered in the Spring Session, 2008 ( emphasis added) in conjunction with a bill making a number of amendments to the ADT Act."

The 2007 date on the report provides no clue that it should have been completed and tabled in 2004. But we know it took three years to complete and a further year for the Attorney General to table it in Parliament.

Given his comment in the annual report it would have been news also for President O'Connor on 19 October that the Attorney General had introduced the Administrative Decisions Tribunal Amendment Bill 2008 on 24 September 2008. In his second reading speech the Attorney General said:

"Members will be aware of the recently tabled statutory review of the Administrative Decisions Tribunal Act. The review concluded that the policy objectives of the Act remain valid. The review also made recommendations for amendments to the Act with the intention of improving the tribunal's operational efficiency. This bill gives effect to the recommended legislative changes in the statutory review as well as making other amendments to enhance the operational efficiency of the tribunal."

In his speech the Attorney General made no mention of the fact that the review report was years late.

Parliamentary debate followed in October with seven speakers in total in the two houses of parliament but it was pretty clear that few had paid much attention to the issues. None including the shadow Attorney General DPP Greg Smith said a word about the timing of the report.(Legislative Council debate on 21 October( see time indicator 3.19 pm); Legislative Assembly debate on 22 October (time indicator 5.22 pm)). The Legislation Review Committee in its report on the Bill made no comment about the Attorney General's failure to comply with a statutory duty.

As to the review report itself, it's still not published on the web and the Attorney hasn't said anything about it in media releases on the Attorney General's website.There is no sign of the report where you might expect to find it, on the Legislation and Policy Division pages of the Department's website.It's all a like the review of privacy legislation which was years late and only published last year after some observers pressured the Department to do so.

How many other parliamentary mandated reviews like these just don't get done or acted upon by NSW ministers, as stipulated? If the ADT Act review is any guide no-one in Parliament pays any attention to such matters.

As to public availability of such reports, the Rees Government's commitment to pro-active publication doesn't appear to have quite got through to AGs.

New NSWADT cost powers get first workout.

In January in "Long lost review sort of surfaces, four years late" I commented on the statutory review report on the NSW Administrative Decisions Tribunal Act tabled with so little fanfare in Parliament years late by the Attorney General that the President of the Tribunal appeared to not notice; that the review was then (and still) yet to be published on the Attorney General's website, so few will have seen it; and that the report had been the basis for some changes to the Act that received scant attention during parliamentary debate.

The only reference in Parliament to one change-to the Tribunal's powers to order costs in proceedings-was this from the Attorney General in the Second Reading Speech in the Legislative Council on 27 October;

"(The Bill) amends section 88 to confirm that the parties in the tribunal are to bear their own costs unless the tribunal orders otherwise, and incorporates an expanded range of matters to be considered in the making of an award of costs. The provision is modelled on the provision contained in the Victorian Civil and Administrative Tribunal Act 1997."

I missed this at the time-hands up who didn't?- so was surprised when a new provision was used recently by the Tribunal, apparently for the first time in a privacy or Freedom of information matter, to impose a cost order on a complainant/applicant.

In BE v University of Technology Sydney(2009) NSWADTAP 22 the President sitting as the Appeal Panel decided that the lodgement of a late application for review of an earlier Tribunal decision concerning a privacy complaint was in this case a strong basis for a costs application [29]. And costs were awarded because the appeal in the context of this much litigated complaint, bordered on the vexatious [31-32].

The new powers are a far cry from the extremely limited "special circumstances" provision for costs prior to the amendment of the Act, and put FOI and privacy applicants, and yes, government agencies appearing before the Tribunal on notice that a wide range of matters-including "any other matter the Tribunal considers relevant"- can now be taken into account regarding cost orders. And will be, as BE has now found, with no doubt others to follow. Section 88 of the ADT Act now reads:

‘88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) …

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

As to the NSW Government making sure we all know about changes in the rules, that's another story.