Last updated 20 May 2022
The Queensland Civil and Administrative Tribunal (QCAT) must deal with matters in a way that is accessible, fair, just, economical, informal and quick (s 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act)), and parties generally bear their own costs. Parties bearing their own costs means that, whether they win or lose, parties in QCAT usually pay for their own legal representation if they chose to and are permitted to have it. The tribunal must act with as little formality as permitted, and is designed to be accessible to self-represented applicants, with leave required for legal representation in most cases. The merits review, called ‘a review of an administrative decision in QCAT’, is designed to produce the correct and preferable decision. The QCAT website includes information on the application process and self-advocacy tools to navigate the tribunal process.
QCAT is not bound by the rules of evidence or to any rules, practices or procedures applying to courts, other than the extent to which QCAT wishes to adopt them. QCAT may inform itself in any way it considers appropriate, and must ensure that all relevant material is disclosed to enable it to make a decision with all relevant facts (s 28 QCAT Act). QCAT must allow a party reasonable opportunity to call or give evidence, examine witnesses and make submissions (s 95 QCAT Act). However, the requirement for evidence may dispensed with where QCAT considers there is sufficient evidence, and rules may be placed on examination of witnesses (s 95(2) QCAT Act). Evidence may be given in writing or orally. The QCAT website includes user-friendly guidance on procedures that apply.
Parties are required to represent themselves in QCAT unless the interests of justice require otherwise (s 43 QCAT Act). In deciding whether leave will be granted to have representation, QCAT will consider circumstances including where the proceeding is likely to involve complex questions of fact or law and all the parties agree to the applicant being represented (s 43(3) QCAT Act). In practice, QCAT will usually grant leave for legal representation in merit review matters because the other party is almost always the State of Queensland, which is well resourced and sophisticated. This is particularly the case if the applicant is vulnerable such as a child or a person with impaired capacity.
Where leave is granted, a person must generally be represented by an Australian legal practitioner or government legal officer. Another person can only be authorised if QCAT is satisfied the person is an appropriate representative (s 43(4) QCAT Act).
Because QCAT is designed for self-represented parties, the website contains user-friendly information on going to the tribunal including on attending by phone on the day of a hearing and preparing statements and witnesses to give evidence. The website also provides links to legal services, community legal centres and community organisations that may assist self-represented applicants.
Alternative dispute resolution
A QCAT decision maker may refer parties to an alternative dispute resolution process such as conferencing, conciliation and mediation.
The purpose of a dispute-resolution process is to try and settle the dispute before the matter is decided by a full rehearing (s 66C, 77 QCAT Act).
The Queensland Civil and Administrative Tribunal Rules (2009) (Qld) (QCAT Rules) contain Rules about the way the conciliation or mediation must be conducted.
The referral can be made with or without the parties’ consent (ss 66A, 75 QCAT Act) and, once referred, the parties must act reasonably and genuinely (rr 68B, 71 QCAT Rules).
The conciliator or mediator may be a member, adjudicator or principal registrar of QCAT, or another approved person (ss 66F, 79 QCAT Act). A mediator may also be an approved mediator under the Dispute Resolution Centers Act 1990 (Qld) or a person such as a registry staff member approved as a mediator (s 79 QCAT Act). Where a member or adjudicator conducts the alternative dispute process, they must not be the person who conducts the hearing unless all parties agree (ss 66H, 81 QCAT Act).
The conciliation or mediation process must normally be conducted in private unless the conciliator directs otherwise (s 66E, 78 QCAT Act). However, in either process the parties may agree for things said or done to be admitted as evidence including any terms of any settlement so that they can be confirmed in a QCAT order (rr 68D, 73 QCAT Rules).
The conciliator or mediator decides how to conduct the process, but it must comply with the QCAT Rules (ss 66E, 78 QCAT Act). They have general powers including to gather information about the nature and facts of the matter, and may see parties together, separately and with or without their representatives (rr 68C, 72 QCAT Rules).
If the parties come to an agreement in a mediation or conciliation, the agreement will be written and become enforceable. It also brings the proceedings to an end. Where the conciliator or mediator is a member, adjudicator or principal registrar of the tribunal, they may record the terms of the settlement in writing and make an order as if it were an order of QCAT (s 85 QCAT Act). For other conciliators and mediators, the settlement agreement must be filed in the registry for the tribunal to make the necessary orders (ss 85(4), 85(5) QCAT Act).
The QCAT website lists practice directions, which guide QCAT proceedings. The practice directions should be read alongside the QCAT Act and QCAT Rules. Practice directions cover matters including:
- filing and use of audio, video and photographs in tribunal proceedings
- completing and submitting QCAT forms online
- service of QCAT proceedings.
Powers of the Queensland Civil and Administrative Tribunal
In exercising review jurisdiction, QCAT has all the functions of the original decision maker and will usually decide a review by way of a fresh hearing on the merits. The tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the reviewable decision was made. The tribunal may perform any functions conferred by the QCAT Act or enabling Act (s 19 QCAT Act).
QCAT may also stay the operation of all or part of the original decision once the review application has started (s 22(4) QCAT Act). A ‘stay’ means that all or part of the original decision will not take effect while QCAT is reviewing the matter.
QCAT may confirm or amend the decision, set the decision aside and substitute its own decision or refer the matter back to the decision maker for reconsideration (s 24 QCAT Act).
Where the decision is referred for reconsideration by the decision maker, the decision maker may confirm the decision, amend it or set it aside and substitute a new decision.
If the decision is confirmed by the decision maker, review proceedings will continue in QCAT.
If the decision maker amends the decision or sets it aside and substitutes a decision, then the amended or substituted decision is taken to be the reviewable decision and proceedings will continue in QCAT unless the applicant withdraws (s 23 QCAT Act).
Decision of the Queensland Civil and Administrative Tribunal
A QCAT decision may be given orally or in writing (s 121 QCAT Act). In an administrative appeal, QCAT must decide the review in accordance with the QCAT Act, which requires that written reasons accompany a reviewable decision (s 157 QCAT Act). In any matters in which reasons are not automatically provided, an applicant may request written reasons of a QCAT decision within 14 days of the decision taking effect, and QCAT must provide the written reasons for most decisions within 45 days (s 122 QCAT Act).
QCAT may also give written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind to the chief executive of the entity and, if it is a different person, the decision maker (s 24 QCAT Act).