The Queensland Civil and Administrative Tribunal (QCAT) only has jurisdiction to hear a matter if it is authorised to do so by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or another piece of legislation. These other pieces of legislation are often referred to as "enabling Acts".
When legislation gives authority to QCAT to hear a matter it will specify the "jurisdiction" QCAT must exercise in relation to the matter. QCAT has 3 types of jurisdiction:
1. Original jurisdiction; 2. Review jurisdiction; and 3. Appeal jurisdiction.
Each jurisdiction has its own purpose, rules and procedures and powers.
This fact sheet summarises the three types of jurisdictions conferred on QCAT.
What does "original jurisdiction" mean?
Original jurisdiction means that QCAT is making a decision on the matter for the first time. In other words, where an application is made to the Tribunal under its original jurisdiction, no other body or person will have previously decided this matter.
When does the Tribunal exercise its original jurisdiction?
QCAT has original jurisdiction for:
1. Minor civil disputes; and2. Matters conferred upon it by an enabling Act to decide a matter in the first instance. (s 10 QCAT Act).
Minor civil disputes are defined in s 12 of the QCAT Act. The Tribunal only has power to make orders to the value of $25,000 (or other amount as prescribed by regulation). (s 13(3) QCAT Act).
Examples of original jurisdiction conferred on QCAT by an enabling Act are:
- The Guardianship and Administration Act 2000 (Qld) which gives QCAT a number of functions including the consideration of applications for appointment of guardians and administrators (s 81 Guardianship and Administration Act 2000 (Qld)).
- The Anti-Discrimination Act 1991 (Qld) which entitles a complainant to require the Anti-Discrimination Commissioner to refer a complaint to QCAT if conciliation has failed (s 166 Anti-Discrimination Act 1991 (Qld)).
QCAT also exercises original jurisdiction where it is empowered by an enabling Act to review its own decisions. For example:
- The Guardianship and Administration Act 2000 (Qld) enables parties to apply for review of the appointment of a guardian, the appointment having been made by QCAT in the first instance;
- The Health Practitioners (Professional Standards) Act 1999 (Qld) empowers QCAT to review decisions where QCAT has decided that grounds for disciplinary action exist.
What are the powers of the Tribunal in exercising original jurisdiction?
The enabling Act conferring original jurisdiction will generally state the Tribunal's functions in the jurisdiction, which may add to, vary or exclude the functions stated in the QCAT Act (ss 6(3) and 16 QCAT Act).
Who are the parties to a proceeding in the tribunal's original jurisdiction?
- the applicant;
- the person the subject of the proceedings, if any;
- an intervener; and
- any other person specified as a party under an enabling Act (s 39 QCAT Act).
What does "review jurisdiction" mean?
If QCAT has been conferred review jurisdiction, a decision has already been made, generally by a government or statutory agency. The Tribunal steps into the shoes of the original decision-maker and reconsiders the decision again. This sort of decision making may have previously referred to as an "appeal".
The purpose of the review is to ensure that the correct decision was made based on the facts of a case. This is to enhance the quality and consistency of decisions by decision makers and to enhance openness and accountability of public administration (s 3(d) and (e) QCAT Act).
When does the Tribunal exercise its review jurisdiction?
QCAT has review jurisdiction when it is conferred with power to review decisions originally made by another entity (s 17 QCAT Act).
The decision being reviewed is known as the reviewable decision and the entity which originally made the decision is known as the decision maker.
What are the powers of the Tribunal in exercising review jurisdiction?
In exercising review jurisdiction, the Tribunal has the power to:
- confirm or amend the original decision
- substitute its own decision; or
- set aside the decision and return the matter for reconsideration by the original decision-maker with any directions it considers appropriate (s 24 QCAT Act).
The Tribunal may also:
- invite the decision maker to reconsider the decision at any time (s 23 QCAT Act);
- exercise all the functions of the original decision-maker in relation to the reviewable decision (s 19(c) QCAT Act); and
- exercise the functions conferred upon it by the QCAT Act or the enabling Act (s 19(b) QCAT Act).
How does the Tribunal approach its task of reviewing a decision?
The purpose of the review is to produce the correct or preferable decision. This is done by way of a fresh hearing on the case's merits (s 20 QCAT Act). A decision must be made in accordance with the QCAT Act and the enabling Act (s 19(1) QCAT Act).
To this end, the original decision-maker is required to assist the Tribunal to the best of their ability, including, for example, providing the Tribunal with a copy of the reasons for decision within 28 days of being given a copy of the application (s 21 QCAT Act).
A detailed consideration of the Tribunal's approach to reviewing a decision is provided in Queensland Racing Ltd v McMahon  QCATA 73.
How does a review affect the original decision?
The start of proceedings to review a decision does not affect the original decision unless otherwise stated in an enabling Act or unless QCAT specifically makes an order to stay the original decision.
An order to stay the original decision stops it from being implemented. A stay may be ordered upon application by a party or on the Tribunal's own initiative.
In making a stay order, the Tribunal must have regard to:
a) The interests of any person who will be affected by the making of the order or the order not being made (but who may not be given an opportunity to make submissions if that is not practicable).b) Any submission made to the Tribunal by the original decision-maker; andc) The public interest.
The Tribunal may also require an undertaking as to costs or damages or for certain conditions to be met for the stay to continue (s 22 QCAT Act).
Inviting the original decision maker to reconsider the decision
The Tribunal may invite the original decision-maker to reconsider their decision before the review proceedings have been completed. The decision-maker then has 28 days to reconsider their decision and either confirm, amend or substitute their original decision.
The review proceedings will then continue, based on the affirmed, amended or substituted decision, unless the applicant withdraws their application (s 23 QCAT Act).
Who are the parties to a proceeding in the Tribunal's original jurisdiction?
- The applicant;
- The decision-maker for the reviewable decision (named using their official description, rather than their personal name);
- An intervener;
- A person joined as a party to the proceedings; and
- Any other person specified as a party under an enabling Act (s 40 QCAT Act).
What does "appeal jurisdiction" mean?
The appeal jurisdiction refers to a situation where another entity or QCAT itself has made a decision and there are provisions that allow an appeal to be lodged with the Tribunal.
If the Tribunal is to sit in its appeal jurisdiction, it will usually be constituted by 1, 2 or 3 judicial members (s 166 QCAT Act). This is often referred to as the Appeal Tribunal.
When does the Tribunal exercise its appeal jurisdiction?
The Tribunal has jurisdiction to hear:
- appeals against its own decisions under s 142 of the QCAT Act; and
- appeals against the decisions of other entities under an enabling Act (s 25 QCAT Act).
Generally speaking, a decision of QCAT may be appealed to the Appeal Tribunal under s 142 where:
- A judicial member did not constitute the Tribunal in the proceeding;
- The decision does not relate to a cost-amount decision (an amount ordered to be paid under a costs order); and
- The decision does not relate to the decision of a registrar to accept or reject an application or referral made to the Tribunal.
In certain circumstances it is necessary to get the Appeal Tribunal's permission to appeal, which is called "getting leave". The Appeal Tribunal's leave is required to appeal:
- A minor civil dispute decision;
- An interim or preliminary decision;
- A costs order; and
- An appeal involving a question of fact.
Please see the QCAT - Appeals factsheet for more information.
What are the powers of the Tribunal in exercising appeal jurisdiction?
Please see the QCAT - Appeals factsheet under Powers and procedure - Appeals to the Appeal Tribunal for more information.
Who are the parties to a proceeding in the tribunal's appeal jurisdiction?
The parties to an appeal will be the same as the parties to the original decision.