Page 1726 - Week 06 - Tuesday, 7 June 2016
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litigant and the potential for exposure to further legal costs, the client chose to pursue the matter in the ACAT and, in doing so, to undervalue her property. I can see how this situation could occur quite frequently as it does not take much for a claim’s value to reach $10,000 or more. This access-to-justice consideration is one of the reasons I support neither the suggestion of the Bar Association to increase the jurisdiction only to $12,000 nor the suggestion of the Law Society to not increase it at all.
I also note the government’s argument that the civil jurisdiction of ACAT—and the Small Claims Court before it—has been $10,000 for almost 20 years. Merely applying CPI to this figure would increase the figure to $20,000 in 2016. The jurisdiction really should increase just to ensure it is still generally accessible to the community. Finally, I note that a jurisdiction of $25,000 accords with ACAT’s current dispute limit for residential tenancies, which will increase consistency.
It is likely that the change in jurisdiction will increase the demand on ACAT. This raises a question of resourcing. The court needs to remain efficient to remain accessible and fulfil its purpose. JACS officials provided a helpful briefing in which they estimated the number of additional cases coming to ACAT would be relatively low. It will be important to monitor just how great any increase is and whether this causes strain that requires additional funding for resources. This would, of course, be a budget matter but one that needs to be monitored.
It is not only ACAT though; the change in jurisdiction may also result in additional strain on our community legal centres which, it must be said, are already strained. Community legal centres provide a very valuable resource, and their services undoubtedly save on legal costs that would otherwise be incurred further down the track.
The second change is the requirement that the president be a magistrate or eligible to be a magistrate. This appears to be a change widely agreed upon by legal stakeholders, except that the Bar Association submits that the president should be a judge of the Supreme Court. Other stakeholders worried, though, that the culture of ACAT could be affected by having a judicial head.
The requirement that the president be a magistrate or eligible to be a magistrate will bring ACAT in line with other tribunals in Australia which also employ a judicial head. It appears that the judicial head requirement has been beneficial in these tribunals, improving their operation, their intellectual rigor and the acceptance of their decisions in the community. I think it will be a positive development. Practically, it is not really very different to the current requirements that a person must meet to be president, and I do not believe the culture will be negatively impacted.
I understand the Bar Council’s arguments for the president to be a Supreme Court judge. They point out that serious and complex taxation, planning and building dispute matters are heard by ACAT and that these can involve many millions of dollars. Other jurisdictions, except for the Northern Territory, employ judges as the heads of tribunals.
I suppose the arguments about a magistrate bringing status and rigor to the tribunal are even stronger in relation to a judge. On balance, though, I think it is still
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