At some point, quietly, VCAT have slipped out their “three year strategic plan,” which appears to be the final output of the review started by former President Justice Kevin Bell. It’s not immediately clear when they did so: it’s not dated, and has simply been posted as a news update on the VCAT website. If there was wider coverage of this release, I missed it. As I write, the page for the review itself (www.transformingvcat.com.au) still hasn’t been updated with the final report; there’s also an older, lonelier page for the review as it was started by Justice Bell at www.vcatreview.com.au that also currently fails to reflect any of the final outcomes. The latter page doesn’t even refer to the re-branded discussion paper released by Justice Iain Ross.
(For those having trouble keeping up, Justice Bell released a “consultation paper” called The Role of VCAT in a Changing World in March 2009, followed by a “President’s review” called One VCAT in February 2010; and then Justice Ross released a “discussion paper” called Transforming VCAT in May 2010, followed by this undated three year strategic plan with the same name).
It’s a shame the release of the document has been so lackadaisical, because it is generally a positive document that I think Victorian planners, as regular users of the system, should welcome. I wrote two editorials for Planning News covering the review process (here and here) and it should be obvious from those that I have some issues with the way VCAT currently operate. This review won’t magically resolve those issues, and one of the biggest issues facing currently facing the Tribunal and its users – the long wait times for hearings – is a resourcing issue that can only be resolved by the new government allocating funding appropriately. Yet there are some really good things in here that if followed through should definitely improve the operation of the Tribunal.
The document itself is accessible here. Some of the key items of note:
More formalised recognition of a right to reply (page 13) – This is nice because it helps to ensure that what good Members already do becomes the norm. Currently it’s too easy for the permit applicant, going last, to slip in points that nobody else can respond to; I’ve seen quick-thinking applicants reshape their arguments on the spot, based on the other submissions, to milk a tactical advantage. That leaves everyone else wondering whether to antagonise an impatient Member by asking to speak again, and such requests are frequently denied. Enshrining a clear expectation that parties can respond will increase fairness and hopefully reduce the incidence of silly game-playing by those speaking last.
A less tolerant attitude to last minute substitution of plans (page 14) – The benefits of fairness on this should be obvious. I’m not kidding myself that this is a magic bullet, since there will always be ways to sneak in the crafty redesign at a hearing, but such a clear affirmation that the last minute switch is frowned upon should help to at least minimise the incidence of this.
Performance benchmarking, including standard timeframes, and reports to Members about their outstanding decisions (page 16) – There is clearly a resourcing problem at VCAT at the moment, so it would be a mistake to assume that providing some performance benchmarks will in itself solve the issues with decision-making delays. Yet it should be noted that as widely maligned as the local government sector is, it is the only one of the three statutory decision-makers (Councils, VCAT, and the Minister / DPCD) that is subject to meaningful and fully reported statutory timeframes. Having a benchmark isn’t the same as meeting it or honestly reporting it (as witnessed by the debacle of the Reducing Amendment Timeframes targets), but it’s a start. As to presenting Members reports about outstanding decisions, this kind of thing is standard practice for planners in local government. If this hasn’t occurred at VCAT before now, it should start.
Recordings of hearings to be made available in most cases, for a fee of $55 (page 33) – This has lots of training and professional development advantages, and should also act as a general incentive for better behaviour. I look forward to the first mix tape of legal bluster and bullying.
A general emphasis on better evaluation, professional development, and complaints procedures in regards to Members – More scrutiny and accountability has to be good for the system. I understand the theoretical argument about judicial independence, but as I have argued before, in practice we are a long way from the point where Members are too accountable. In particular, I hope that the professional development places a strong emphasis upon fairer handling of hearings to reduce the clubbiness and bullying that occurs, and that the improved scrutiny of Members helps to shape up (or move on) those Members who have become jaded or operate on auto-pilot. (When One VCAT was released it was interesting to note that some regular users of the system – notably the VCAT columnists in the May 2010 issue of Planning News – queried its focus on misconduct in hearings and expressed doubt about the extent of this problem. Needless to say I agree such a focus was warranted.)
The one puzzling omission I noted was that there is no talk in the section on “innovation” (code for “computers”) about the availability of decisions on the internet, save for a mention that decisions should go up on AustLII quicker. As any regular user of AustLII knows, speed of uploading decisions is the least of its problems: the search engine seems fundamentally incapable of delivering meaningful results, or even searching in the way it has been instructed to (core features such as screening the search by List, for example, simply don’t work). I realise it’s a third party site not under VCAT’s control, but if the Tribunal is to devolve responsibility for its decision database to AustLII, it should take responsibility for that site’s failures. Is the legal profession just so used to AustLII’s shortcomings that it doesn’t see them any more?
That last point aside this is, as I said, a positive review with encouraging recommendations. I hope its content is taken up with vigour and fully implemented.