Transforming One VCAT

Originally published as an editorial under a joint by-line with Tim Westcott and Gilda Di Vincenzo in Planning News 36, No. 5 (June 2010).

The Victorian Civil and Administrative Tribunal is currently engaged in a process of introspection. The outgoing President, Justice Kevin Bell, released his review (titled One VCAT) back in February, and in May the incoming President, Justice Iain Ross, has released his own discussion paper, Transforming VCAT. The release of two documents covering such similar material so close together is at first a little disorienting, particularly for a planning profession accustomed to a more glacial approach to review and reform. Yet it was inevitable that the change of President would result in some reframing of the previous President’s findings: the new President is to be congratulated on moving forward so quickly rather than allowing the process to bog down. The term “discussion paper” might imply that the process has returned to square one, but a comparison of Transforming VCAT with the initial March 2009 “consultation paper” The Role of VCAT in a Changing World makes it clear that the slate hasn’t been wiped clean. While Transforming VCAT is also framed as a call for submissions, it builds upon the earlier work and includes responses to various of the Bell review’s recommendations.

You can find more detailed coverage of both documents in Planning News’ VCAT column: the Bell review was covered in last month’s issue, and the Ross paper is covered this month. A few points are worth noting here, however. One is a tip of the hat: the suggestion of making recordings of hearings available for an unspecified but “small” fee is a fantastic initiative. Another notable point is that the mooted “internal appeal” mechanism, first raised by Justice Bell in the context of the Ombudsman’s report into the Brookland Greens Estate, has been ditched. This makes sense: it is difficult to see how the process could have functioned as anything other than a potential double-dip review, lengthening delays and inviting abuse by those with pockets deep enough to simply outlast their opponents. The only answer to the dilemma that bothered the past President – those left with a dud decision but not the resources or desire to take it to the Supreme Court – can be to improve the quality of decisions in the first instance.

For this reason, the commitment in Transforming VCAT to making Members subject to a complaints mechanism, codes of conduct, performance indicators, ongoing appraisal, and obligations regarding continued professional development are welcome. We note the qualms felt by our VCAT columnists last month about the potential for a complaints mechanism, in particular, to undermine the independence of the Tribunal. There will always be a tension between ensuring accountability while maintaining fearless independence of Members. Yet our own view is that we are some considerable way from the point where scrutiny and review becomes undue interference. A properly managed complaints procedure should provide significant opportunities for improving outcomes without seriously threatening the independence of the Tribunal.

We also differ with our VCAT columnists on the related subjects of “creeping legalism” and the perceived “clubby” atmosphere at the Tribunal. We addressed the former issue in our June 2009 editorial, and believe it remains perhaps the most pressing challenge facing VCAT. We take their point (from last month’s column) about the lack of research underpinning such assertions, but this cuts both ways: we are not aware of data establishing that the use of legal representatives or expert witnesses in comparable cases is steady over time. Without “hard” data either way, we mustn’t forget that the views of users, expressed in consultation submissions, are themselves a legitimate data source and should be dismissed only with care.

Our own view remains that, whether steady over time or not, the use of lawyers and expert witnesses creates considerable imbalance in the VCAT process. To some extent, this is one of those things, like death or taxes, which we simply must live with. Yet as we said in June 2009 (here), some areas of practice should be subject to scrutiny. The use of planners – as distinct from narrow-focus specialists with specific expertise outside of the core subject of the list – as expert witnesses purely for tactical reasons is one approach we’d particularly like to see reduced. When a firm of consultants that has represented a proposal sends a planner as a supposedly impartial witness rather than as an advocate, little (if anything) is gained in their ability to honestly inform the Tribunal of the perspective; yet such a situation greatly multiplies the difficulties facing lay people who hope to effectively conduct their own cases. That is not in the interests of accessible justice that should underlie the Tribunal.

On the scepticism about the perception that VCAT can be “clubby,” we would note simply that this is one front on which regular users of the system such as professional planners, planning lawyers, and Members themselves, are actually the least qualified to comment. They will always be the last people to perceive such an atmosphere. This issue runs deeper than whether or not the Tribunal explains proceedings (of course it does), or whether regulars sometimes come off second best (of course sometimes they will). It is about an all-pervasive power imbalance, the intangible advantages of familiarity, and the extent of latitude given to experienced practitioners to throw their weight around. In this context, we hope that the expanded professional development program for Members includes a focus on managing hearings to ensure a minimisation of bluster and bullying by participants. Both could stand to be considerably reduced.

Those who heard Justice Bell speak about the charter of human rights (for example at the 2008 planning conference) will remember his keen empathy for those coming to the Tribunal from “outside the system;” this attitude is evident throughout One VCAT. We hope that perspective will continue to inform the recast review as it continues forward.