SACAT’s New Public Health Jurisdiction

28 November 2019

As our readers are aware from our Alert of 9 August 2019 (read it here), the Statutes Amendment (SACAT) Act 2019 (“the Act”), containing amendments to the South Australian Public Health Act 2011 (“the SAPH Act”), was assented to earlier this year.

We now advise that the commencement of Part 27 of the Act was proclaimed on 21 November 2019 and will come into operation on 2 December 2019. Part 27 amends the SAPH Act to remove the right of appeal to the District Court under the SAPHA Act and to replace it with a right of review to SACAT.

Relevantly, this means that a person aggrieved with a compliance notice issued to them under section 92 of the SAPH Act by a council on or after 2 December 2019, is able to apply to the SACAT for a review of the notice within 14 days of the notice being served.

Upon receiving notification from the SACAT that an application for review has been made, the council, as the decision maker, is required within 21 days (unless otherwise directed by the SACAT) to prepare a book of documents setting out the information that was relied upon to inform the decision to issue the notice. The council must also prepare a ‘statement of reasons’ that complies with requirements under section 35 of the SACAT Act, outlining why the notice was issued.

The SACAT jurisdiction is intended to provide a more flexible and cost-effective dispute resolution process between parties. For this purpose, conferences are held in the first instance to provide the parties with the opportunity to reach a resolution. If the matter does not resolve at the conference stage it will then progress to a hearing.

A new legislative ‘test’ for overturning a council decision that is the subject of an application for review will apply with the transfer of the public health jurisdiction to the SACAT. Presently, where an appeal is commenced in the District Court against a section 92 notice, the Court can only overturn the decision where it is satisfied that there are cogent reasons to depart from it. However, in review proceedings before the SACAT, the powers on a rehearing to overturn or vary the council’s decision are broader and exercisable where it is considered necessary to reach ‘the correct and preferable’ decision. There is, therefore, greater scope for council decisions to be overturned or varied in review proceedings when compared to the appeal processes in the District Court. This change reinforces the need to ensure that decisions to issue a notice are sufficiently robust and justified (including by the recording of reasons) in the first instance.

Importantly, the practical implications arising from this change in jurisdiction to the SACAT include that from Monday 2 December 2019, councils must ensure that notices issued under the SAPH Act properly refer to the recipient’s rights of review to the SACAT. Template notices must, therefore, be amended. In addition, council delegations under the SAPH Act must be updated to reflect this change.

For further information or assistance in any review proceedings, please contact Cimon Burke on 08 8113 7105 or email  cburke@kelledyjones.com.au.