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TASMANIA
__________
TASMANIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL AMENDMENT BILL 2021
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Long title amended
5. Section 3 amended (Interpretation)
6. Section 7A inserted
7A. Inconsistency with relevant Act
7. Section 10 amended (Main objectives of Tribunal)
8. Section 14 amended (Presidents functions generally)
9. Section 14A inserted
14A. Delegation
10. Section 44 amended (Appointment of senior members and
ordinary members)
11. Section 48 amended (Supplementary members)
12. Section 50 amended (When supplementary member ceases to
hold office)
13. Section 54 amended (Functions of registrars)
14. Section 55 amended (Delegation)
15. Part 4 repealed
16. Section 59 amended (Divisions of Tribunal)
[Bill 46]-XI
17. Section 61 amended (Functions and powers of Division Heads
and delegation)
18. Part 6 substituted
PART 6 - Constitution of Tribunal
64. Constitution of Tribunal
65. Alteration of constitution of Tribunal and provision
for separate dealing with aspects of matters
66. Proceedings in respect of same matter may be heard
together
67. Who presides at proceedings of Tribunal
68. Decision if 2 or more members constitute Tribunal
69. Validity of acts and proceedings of Tribunal
70. Disclosure of interest by members of Tribunal
PART 7 - Jurisdiction of Tribunal
Division 1 - Jurisdiction
71. Jurisdiction of Tribunal
Division 2 - Original jurisdiction
72. Original jurisdiction
73. Proceedings in original jurisdiction
Division 3 - Review jurisdiction
74. Review jurisdiction
75. Nature of proceedings in review jurisdiction
76. Decision-maker must assist Tribunal
77. Effect of review proceedings on decision being
reviewed
78. Decision on review
PART 8 - Principles, Powers and Procedures
Division 1 - Principles governing proceedings
79. Principles governing proceedings
Division 2 - Procedure generally
80. Sittings
81. Hearings in public
82. Electronic hearings and proceedings without
hearings
83. Practice and procedure generally
84. Directions for conduct of proceedings
85. Consolidating and splitting proceedings
86. Completion of part-heard matters
Division 3 - Dismissal of proceedings or part of proceedings
87. More appropriate forum
88. Dismissing proceedings on withdrawal or for want of
prosecution
89. Frivolous or vexatious proceedings
90. Proceedings being conducted to cause disadvantage
2
Division 4 - Tribunal rules, practice directions and codes of
conduct
91. Rules Committee
92. Rules
93. Practice directions
94. Code of conduct
Division 5 - Parties
95. Parties
96. Person may be joined as party
97. Intervention in proceedings
Division 6 - Representation
98. Representation
Division 7 - Compulsory conferences, alternative dispute
resolution processes and settlement
99. Compulsory conferences
100. Procedure for compulsory conferences
101. Settlement of matter during compulsory conference
102. Alternative dispute resolution
103. Settling of proceedings
Division 8 - Evidentiary powers
104. Power to require person to give evidence or to
produce evidentiary material
105. Claims of privilege
106. Privileges not affected
107. Entry and inspection of property
108. Expert reports
109. Tribunal may authorise person to take evidence
110. Accessibility to public of evidence
Division 9 - Orders and powers
111. Preserving subject matter of proceedings
112. Interlocutory orders
113. Conditional, alternative and ancillary orders and
directions
114. Alternative orders and relief
115. Relief from time limits
116. Tribunal may review its decision if party was absent
117. Determination of questions of law
118. Power to cure irregularities
119. Correcting mistakes
Division 10 - Costs
120. Costs of parties
121. Costs of parties - related matters
122. Costs incurred by Tribunal in relation to proceedings
Division 11 - Information
3
123. Reports of proceedings and giving of information in
relation to Guardianship stream proceedings
124. Provision of information in Guardianship stream
proceedings
Division 12 - Process and enforcement
125. Provision of documents, legal process and service
126. Enforcement of decisions and orders of Tribunal
127. Proof of decisions and orders of Tribunal
128. Disrupting proceedings of Tribunal
PART 9 - Federal Jurisdiction Proceedings
129. Interpretation
130. Relationship of this Part to this Act and other laws
131. Transfer to Magistrates Court of applications
involving federal jurisdiction
132. Magistrates Court proceedings, jurisdiction, powers
and functions, &c.
133. Modifications of certain functions, powers and
procedures, &c.
134. Compulsory conferences and alternative dispute
resolution
135. References to Tribunal in other Acts or regulations
PART 10 - Appeals to Supreme Court
136. Appeals to Supreme Court
137. Procedure on appeal
138. Determination of appeal
139. Effect of appeal on decision
PART 11 - Protection and Immunities
140. Protections and immunities
141. Protection from liability for torts
142. Protection for compliance with Act
PART 12 - Miscellaneous
143. Annual report
144. Seal of Tribunal
145. Regulations
146. Administration of Act
PART 13 - Savings and Transitional Provisions
Division 1 - Abolition of Boards and Tribunals and transition
of certain members
147. Interpretation of Part 13
148. Abolition of existing Boards and Tribunals
149. Current members of relevant Board or Tribunal
cease to hold office
150. Current members to hold office as members of
Tribunal
4
151. Remuneration of current member of relevant Board
or Tribunal
Division 2 - Proceedings of former relevant Board or
Tribunal
152. Proceedings that were on foot on commencement
day
153. Pending court proceedings in relation to relevant
Board or Tribunal may be completed
154. Certain unexercised rights continue
155. Allocation of transitional proceedings to Divisions of
Tribunal
156. Saving of orders of relevant Board or Tribunal
157. Expiration of time periods
158. Savings of code of conduct and Mental Health
guidelines
159. Appointments and other matters to facilitate
establishment of Tribunal
160. General savings
19. Schedule 1 amended (Relevant Acts)
20. Schedule 2 amended (General Division)
21. Schedule 3 amended (Protective Division)
22. Repeal of Act
5
6
TASMANIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL AMENDMENT BILL 2021
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
14 October 2021
(Brought in by the Minister for Justice, the Honourable Elise
Nicole Archer)
A BILL FOR
An Act to amend the Tasmanian Civil and Administrative
Tribunal Act 2020
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Tasmanian Civil
and Administrative Tribunal Amendment Act
2021.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 46] 7
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3. Principal Act
In this Act, the Tasmanian Civil and
Administrative Tribunal Act 2020* is referred to
as the Principal Act.
4. Long title amended
The long title of the Principal Act is amended by
inserting "to make provision for the functions,
powers and procedures of the Tribunal," after
"staff of the Tribunal,".
5. Section 3 amended (Interpretation)
Section 3 of the Principal Act is amended as
follows:
(a) by inserting the following definitions
after the definition of Acting President in
subsection (1):
Anti-Discrimination stream means the
Anti-Discrimination stream
established by clause 1 of Part 4
of Schedule 2;
applicant means -
(a) in the context of the
Tribunal's review
jurisdiction, the person
who -
_______________________________________________________________
*No. 24 of 2020
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(i) applies to the
Tribunal for a
review; or
(ii) otherwise brings a
matter before the
Tribunal; or
(iii) requests, requires,
or otherwise seeks
that a matter be
referred to, or
otherwise brought
before, the
Tribunal; and
(b) in any other context, the
person who -
(i) brings a matter
before the
Tribunal; or
(ii) requests, requires,
or otherwise seeks
that a matter be
referred to, or
otherwise brought
before, the
Tribunal -
but, unless and to the extent that
the Tribunal rules otherwise
provide, does not include a
person who is required by this
Act or a relevant Act to refer a
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matter to the Tribunal, or
otherwise bring a matter before
the Tribunal, as sought by another
person;
(b) by omitting the definition of code of
conduct from subsection (1) and
substituting the following definitions:
code of conduct means the code of
conduct issued under section 94;
commencement day means the day on
which the Tasmanian Civil and
Administrative Tribunal
Amendment Act 2021
commences;
compulsory conference means a
compulsory conference held
under Division 7 of Part 8;
decision of the Tribunal includes a
direction, determination or order
of the Tribunal;
decision-maker - see section 74(2);
(c) by inserting the following definitions
after the definition of establishment day
in subsection (1):
evidentiary material includes any
document, object, and substance,
of evidentiary value in
proceedings before the Tribunal
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and includes any other document,
object, and substance, that
should, in the opinion of the
Tribunal, be produced for the
purpose of enabling the Tribunal
to determine whether or not it has
evidentiary value;
Forestry Practices stream means the
Forestry Practices stream
established by clause 1 of Part 6
of Schedule 2;
General Division means the General
Division established by
section 59(1);
Guardianship stream means the
Guardianship stream established
by clause 2 of Part 4 of
Schedule 3;
Health Practitioners stream means
the Health Practitioners stream
established by clause 1 of Part 5
of Schedule 2;
legally qualified member means -
(a) the President; and
(b) a magistrate who is a
member; and
(c) a member who is an
Australian lawyer of at
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least 5 years' standing as
an Australian legal
practitioner;
(d) by inserting the following definitions
after the definition of members of the
staff of the Tribunal in subsection (1):
Mental Health stream means the
Mental Health stream established
by clause 1 of Part 5 of
Schedule 3;
monetary order means an order of the
Tribunal requiring the payment of
money and includes -
(a) an order made for the
payment of a fine or other
pecuniary penalty; and
(b) an order as to the payment
of any costs; and
(c) an order for the payment
of compensation for
breach of an Act;
(e) by inserting the following definition after
the definition of officers of the Tribunal
in subsection (1):
order of the Tribunal includes an
interim order, interlocutory order,
consequential order and ancillary
order;
12
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(f) by inserting the following definitions
after the definition of ordinary member
in subsection (1):
original jurisdiction of the Tribunal -
see section 72;
party, in relation to proceedings,
means a person who is, under this
Act or a relevant Act, a party to
the proceedings;
Personal Compensation stream
means the Personal
Compensation stream established
by clause 1 of Part 7 of
Schedule 2;
practice directions means practice
directions given under section 93;
prescribed means prescribed in the
regulations;
(g) by inserting the following definitions
after the definition of President in
subsection (1):
proceedings means proceedings of the
Tribunal and includes a hearing
of the Tribunal and proceedings
of the Tribunal that do not consist
of a hearing;
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Protective Division means the
Protective Division established
by section 59(1);
(h) by inserting the following definitions
after the definition of Registrar in
subsection (1):
registry means a registry of the
Tribunal;
regulations means regulations made
under this Act;
(i) by inserting the following definitions
after the definition of relevant Board or
Tribunal in subsection (1):
Resource and Planning stream means
the Resource and Planning stream
established by clause 2 of Part 8
of Schedule 2;
reviewable decision - see
section 74(1);
(j) by omitting "under section 66(5)" from
the definition of Rules Committee in
subsection (1) and substituting "under
section 91";
(k) by omitting the definition of rules of the
Tribunal from subsection (1);
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(l) by inserting the following definition after
the definition of sessional basis in
subsection (1):
stream - see section 63;
(m) by omitting "section 8." from the
definition of Tribunal in subsection (1)
and substituting "section 8;";
(n) by inserting the following definition after
the definition of Tribunal in subsection
(1):
Tribunal rules means the Tribunal
rules, made under section 92, that
are in force under this Act.
(o) by inserting the following subsection
after subsection (2):
(3) For the purposes of this Act, a
reference in a relevant Act to an
appeal to the Tribunal is to be
taken to be a reference, as the
case requires, to -
(a) an application for a
review by the Tribunal; or
(b) a review by the Tribunal.
6. Section 7A inserted
After section 7 of the Principal Act, the
following section is inserted in Part 1:
15
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7A. Inconsistency with relevant Act
If there is an inconsistency between a
provision of a relevant Act and a
provision of this Act, the regulations or
the Tribunal rules, the provision of the
relevant Act prevails to the extent of the
inconsistency.
7. Section 10 amended (Main objectives of Tribunal)
Section 10(1)(c) of the Principal Act is amended
as follows:
(a) by inserting ", reviews" after "referrals";
(b) by omitting "mediation, conciliation and
alternative dispute resolution procedures"
and substituting "alternative dispute
resolution processes, or compulsory
conferences,".
8. Section 14 amended (Presidents functions generally)
Section 14(3) of the Principal Act is amended by
omitting "establishment day" second occurring
and substituting "commencement day".
9. Section 14A inserted
After section 14 of the Principal Act, the
following section is inserted in Subdivision 1:
16
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14A. Delegation
(1) The President may delegate a function or
power of the President under this or any
other Act, other than this power of
delegation, to -
(a) another member of the Tribunal;
or
(b) a member of the staff of the
Tribunal; or
(c) the person (being either a
member of the Tribunal or a
member of the staff of the
Tribunal) for the time being
performing particular duties or
holding or acting in a particular
position.
(2) A delegation under subsection (1) -
(a) must be made by instrument in
writing; and
(b) may be conditional; and
(c) does not derogate from the ability
of the President to act in any
matter; and
(d) is revocable at will by the
President.
17
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10. Section 44 amended (Appointment of senior
members and ordinary members)
Section 44 of the Principal Act is amended as
follows:
(a) by omitting from subsection (8) "person"
second occurring and substituting
"President";
(b) by omitting from subsection (8) "the
person" second occurring and
substituting "a person";
(c) by omitting from subsection (9) "or a
proposed alteration under subsection (8)
of the basis of an appointment".
11. Section 48 amended (Supplementary members)
Section 48 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b)
"matter." and substituting "matter; or";
(b) by inserting the following paragraph after
paragraph (b) in subsection (2):
(c) is to be designated under the
Health Practitioners Tribunal Act
2010 as a professional member,
or a community member, for the
purposes of that Act.
18
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(c) by inserting in subsection (3) "(except in
relation to a person to whom
subsection (2)(c) applies)" after "must";
(d) by omitting from subsection (6) "person"
second occurring and substituting
"President";
(e) by omitting from subsection (6) "the
person" second occurring and
substituting "a person".
12. Section 50 amended (When supplementary member
ceases to hold office)
Section 50(1)(a) of the Principal Act is amended
by inserting after subparagraph (ii) the following
subparagraph:
(iii) on the basis that the person is to be
designated, under the Health
Practitioners Tribunal Act 2010, as a
professional member, or a community
member, for proceedings, if the person
ceases under that Act to be a professional
member, or community member,
respectively; or
13. Section 54 amended (Functions of registrars)
Section 54 of the Principal Act is amended as
follows:
(a) by inserting the following paragraph after
paragraph (a) in subsection (1):
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(ab) the functions conferred on the
Registrar under any other Act;
and
(b) by omitting from subsection (1)(b) "rules
of the Tribunal" and substituting
"Tribunal rules";
(c) by omitting from subsection (2)(b) "rules
of the Tribunal" and substituting
"Tribunal rules".
14. Section 55 amended (Delegation)
Section 55 of the Principal Act is amended by
inserting "(other than this power of delegation)
or another Act" after "Act".
15. Part 4 repealed
Part 4 of the Principal Act is repealed.
16. Section 59 amended (Divisions of Tribunal)
Section 59(3) of the Principal Act is amended by
omitting ", immediately before the establishment
day, functions or powers conferred on a relevant
Board or Tribunal" and substituting ", after the
commencement day, conferred on the Tribunal".
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17. Section 61 amended (Functions and powers of
Division Heads and delegation)
Section 61 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1)(a) "the
rules" and substituting "the Tribunal
rules";
(b) by omitting from subsection (2)(b) "the
rules" and substituting "the Tribunal
rules".
18. Part 6 substituted
Part 6 of the Principal Act is repealed and the
following Parts are substituted:
PART 6 - CONSTITUTION OF TRIBUNAL
64. Constitution of Tribunal
(1) The President may determine, in relation
to a particular matter or matters, or
particular classes of matters, which
member or members of the Tribunal will
constitute the Tribunal.
(2) The Tribunal is not to be constituted by
more than 5 members.
(3) A person is not to be a sitting member of
the Tribunal, or perform any function as
a member of the Tribunal, in relation to a
21
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matter in the review jurisdiction of the
Tribunal if the person was -
(a) the decision-maker in relation to
that matter; or
(b) a member of a body that was the
decision-maker in relation to that
matter.
(4) The Tribunal may be constituted by -
(a) a registrar for the purpose of
adjourning proceedings; or
(b) a registrar, or other member of
the staff of the Tribunal, for any
other purpose that is -
(i) specified by this Act or a
relevant Act; or
(ii) prescribed by the Tribunal
rules; or
(iii) determined by the
President -
to be a purpose for which the
Tribunal may be constituted by a
registrar, or such other member of
the staff of the Tribunal,
respectively.
(5) If a registrar or other member of the staff
of the Tribunal exercises the jurisdiction
of the Tribunal, the registrar or other
22
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member of the staff may, and must if the
Tribunal or the President so directs, refer
the matter to the Tribunal for
determination by the Tribunal.
(6) Except as constituted by a registrar, or
other member of the staff of the Tribunal,
in accordance with subsection (4), the
Tribunal is to be constituted in relation to
proceedings in accordance with the
requirements of an applicable Division
Schedule in relation to such proceedings.
65. Alteration of constitution of Tribunal and
provision for separate dealing with aspects
of matters
(1) Subject to section 64(6), the President
may, as he or she considers fit, do either
or both of the following:
(a) alter who is to constitute the
Tribunal for the purpose of
dealing with a matter, or anything
relating to a matter, after the
Tribunal has begun to deal with
the matter;
(b) provide that different aspects of
the same matter may be dealt
with by different members of the
Tribunal.
(2) If the President alters the constitution of
the Tribunal under subsection (1)(a), the
23
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Tribunal as constituted after the
alteration may have regard to -
(a) any record of the proceedings in
relation to the matter before the
alteration; and
(b) any evidence taken in the
proceedings before the alteration.
(3) If the President provides under
subsection (1)(b) that different aspects of
the same matter may be dealt with by
different members of the Tribunal, the
members of the Tribunal may, during or
after dealing with the different aspects of
a matter, come together and have regard
to any evidence taken by the respective
members of the Tribunal for the purposes
of the proceedings.
(4) The Tribunal may, at any one time, be
separately constituted in accordance with
this section for the hearing and
determination of any number of separate
matters.
66. Proceedings in respect of same matter may
be heard together
The Tribunal may, if it considers it
appropriate to do so, organise its business
and regulate its proceedings in such a
way that 2 or more proceedings in
24
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respect of the same matter are heard
together.
67. Who presides at proceedings of Tribunal
(1) If, for dealing with a particular matter,
the Tribunal is constituted by 2 or more
members, the most senior of them is to
preside at the proceedings in relation to
the matter.
(2) The seniority of members of the Tribunal
depends on which of the offices held
takes precedence and, if that does not
determine a member's seniority, the
matter is to be resolved by the President.
(3) The order of precedence of offices is as
follows:
(a) President;
(b) Deputy President;
(c) senior member;
(d) ordinary member.
68. Decision if 2 or more members constitute
Tribunal
(1) Subject to the provisions of a relevant
Act, if the Tribunal is constituted by 2 or
more members, a question that they are
required to decide is resolved according
25
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to the opinion of the majority of them
but, if their opinions on the question are
equally divided, the question is to be
resolved according to the opinion of the
presiding member.
(2) Nothing in subsection (1) is to be taken
to prevent the application of section 117
in relation to a matter.
69. Validity of acts and proceedings of Tribunal
An act of the Tribunal, or any
proceedings, is not invalid by reason only
of -
(a) a vacancy in the membership of
the Tribunal; or
(b) a defect in the appointment of a
person to be a member of the
Tribunal or of a panel from which
members of the Tribunal are
drawn; or
(c) a defect in the appointment of any
other person to act on behalf of
the Tribunal.
70. Disclosure of interest by members of
Tribunal
If the Tribunal is constituted by, or
includes, a member who has a pecuniary
or other interest that could conflict with
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the proper performance of the member's
functions in proceedings, the member -
(a) must disclose the interest to the
parties to the proceedings; and
(b) must disclose the interest to the
President or, if the President is
the member with the interest,
make a record of the interest and
declare whether he or she will
withdraw from the proceedings;
and
(c) must not take part in the
proceedings or exercise powers
affecting the proceedings -
(i) if the President directs the
member to withdraw from
the proceedings or has
declared that he or she
will withdraw from the
proceedings; or
(ii) if a party to the
proceedings does not
consent to the member
hearing and determining,
or participating in the
hearing and determination
of, the proceedings.
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PART 7 - JURISDICTION OF TRIBUNAL
Division 1 - Jurisdiction
71. Jurisdiction of Tribunal
(1) The Tribunal has the jurisdiction
conferred on it by or under this or any
other Act.
(2) Without limiting subsection (1), if a
provision of an Act enables an
application, referral or appeal to be made
to the Tribunal, or a claim or matter to be
brought before the Tribunal, the Act is
taken to confer jurisdiction on the
Tribunal to deal with the matter
concerned.
(3) A matter in relation to which the
Tribunal has jurisdiction comes within -
(a) its original jurisdiction, as
determined under section 72; or
(b) its review jurisdiction, as
determined under section 74.
Division 2 - Original jurisdiction
72. Original jurisdiction
If a relevant Act confers on the Tribunal
jurisdiction to deal with a matter that
does not involve a reviewable decision,
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the matter is within the Tribunal's
original jurisdiction.
73. Proceedings in original jurisdiction
(1) Subject to subsections (2) and (3), the
Tribunal will, in exercising its original
jurisdiction, depending on the nature of
the matter -
(a) act as the original decision-maker
in the matter and accordingly
apply those principles which,
according to law, are to be
applied to persons or bodies that
make such decisions pursuant to
statute; or
(b) resolve a dispute between parties
to the relevant proceedings; or
(c) adopt any other course of action
that the Tribunal considers
appropriate to deal with the
matter.
(2) In exercising its original jurisdiction, the
Tribunal is to deal with a matter in
accordance with this Act and the relevant
Act and may, in addition to exercising its
powers under this Act, exercise all the
powers that are conferred by the relevant
Act on the Tribunal as the original
decision-maker.
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(3) The relevant Act may modify the
operation of this Act in relation to a
matter that is within the Tribunal's
original jurisdiction.
Division 3 - Review jurisdiction
74. Review jurisdiction
(1) If a relevant Act confers on the Tribunal
jurisdiction to deal with a matter and that
matter, expressly or necessarily, involves
a review of a decision (a reviewable
decision), the matter is within the
Tribunal's review jurisdiction.
(2) For the purposes of this Act -
(a) unless paragraph (b) applies, the
decision-maker for a reviewable
decision is the person or body
that made or is taken to have
made the reviewable decision;
and
(b) the Tribunal rules may provide -
(i) that the decision-maker
for a reviewable decision,
instead of being the
person or body under
paragraph (a), is to be a
person or body that is
designated by the
Tribunal rules to be a
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suitable entity to act as
the decision-maker for the
purposes of this Act or
specified provisions of
this Act; or
(ii) that a reference to the
decision-maker for a
reviewable decision in
this Act, or specified
provisions of this Act,
will be taken to include a
reference to a person or
body that is designated by
the Tribunal rules to be a
suitable entity to act
jointly with the person or
body under paragraph (a)
for the purposes of this
Act (or specified
provisions of this Act) -
and Tribunal rules made under
this paragraph are to then have
effect in accordance with their
terms.
(3) If, under a relevant Act, a person's
failure or omission to do something is
reviewable under this Act as a decision -
(a) this Act applies as if that person
had made that decision; and
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(b) any provision of the relevant Act
as to when the decision is taken
to have been made has effect.
(4) For the purposes of this Act, a matter in
relation to which jurisdiction is conferred
on the Tribunal under Division 2 of Part
3 of Chapter 3 of the Mental Health Act
2013 is not to be taken to be a matter that
involves a reviewable decision.
75. Nature of proceedings in review jurisdiction
(1) The purpose of a review of a reviewable
decision is to produce the correct or
preferable decision.
(2) Subject to subsection (6), if a reviewable
decision, to which an application for
review made to the Tribunal relates, is a
decision under an Act, or regulations or
an instrument made under an Act, that is
an Act in relation to which the functions
and power of the Tribunal are allocated
under clause 3 of Part 8 of Schedule 2 to
the Resource and Planning stream, the
review by the Tribunal of the reviewable
decision is to be by way of a hearing de
novo of the matter to which the
reviewable decision relates.
(3) Subject to subsections (4), (5), (6) and
(7) and the provisions of a relevant Act,
if a reviewable decision, to which an
application for review made to the
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Tribunal relates, is a decision in relation
to an Act, or regulations or an instrument
made under an Act, that is not an Act to
which subsection (2) applies, the review
by the Tribunal of the reviewable
decision is to be by way of a rehearing of
the matter to which the reviewable
decision relates.
(4) On a rehearing, the Tribunal may have
regard to, and give appropriate weight to,
the decision of the original decision-
maker.
(5) Proceedings on a rehearing may
include -
(a) an examination of the evidence or
material before the decision-
maker, unless any such evidence
or material is to be excluded
under another provision of this
Act or under any other law; and
(b) a consideration of any further
evidence or material that the
Tribunal decides, in the
circumstances of the particular
case, to admit for the purposes of
rehearing the matter.
(6) In exercising its review jurisdiction in
relation to a reviewable decision under a
relevant Act -
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(a) the Tribunal is to deal with a
matter in accordance with this
Act and the relevant Act; and
(b) has, in addition to the powers of
the Tribunal under this Act, all
the powers that are conferred by
the relevant Act on the original
decision-maker.
(7) The relevant Act may modify the
operation of this Act in relation to a
matter that comes within the Tribunal's
review jurisdiction under the relevant
Act.
76. Decision-maker must assist Tribunal
(1) In proceedings for the review by the
Tribunal of a reviewable decision, the
decision-maker for the reviewable
decision must use his or her best
endeavours to help the Tribunal so that it
can make its decision on the review.
(2) Without limiting subsection (1), the
decision-maker must, if directed to do so
by the Tribunal, provide the following to
the Tribunal within the period directed
by the Tribunal:
(a) a written statement of the reasons
for the decision;
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(b) any document or thing in the
decision-maker's possession or
control that may be relevant to
the Tribunal's review of the
decision.
(3) The decision-maker must, in providing
any document or thing under
subsection (2), take reasonable steps to
identify the documents or things that
were taken into account in making the
relevant decision.
(4) If the Tribunal considers that there are
additional documents or things in the
decision-maker's possession or control
that may be relevant to the Tribunal's
review of the reviewable decision, the
Tribunal may, by written notice, require
the decision-maker to provide the
documents or things.
(5) If the Tribunal considers that the
statement of reasons given under
subsection (2)(a) is not adequate, the
Tribunal may, by written notice, require
the decision-maker to give the Tribunal
an additional statement containing
further particulars specified in the notice.
(6) The decision-maker must comply with a
notice given under subsection (4) or (5)
within the period stated in the notice.
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(7) A requirement under this section that the
decision-maker give the Tribunal
information or a document or thing
applies despite any provision in another
Act prohibiting or restricting the
disclosure of the information or the
information contained in the document or
thing.
(8) The Tribunal may examine any
document or thing provided under this
section and draw any conclusions of fact
that it considers proper.
77. Effect of review proceedings on decision
being reviewed
(1) The commencement of proceedings for
the review by the Tribunal of a
reviewable decision does not affect the
operation of the decision or prevent the
taking of action to implement the
decision unless -
(a) the relevant Act states otherwise;
or
(b) an order is made under
subsection (2).
(2) On or after the commencement of
proceedings for the review by the
Tribunal of a reviewable decision, the
Tribunal or the decision-maker may, on
application or on the Tribunal's or the
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decision-maker's own initiative, make an
order staying or varying the operation or
the implementation of the whole or a part
of the reviewable decision -
(a) pending the determination of the
matter; or
(b) until such time (whether before or
after the determination of the
matter) as the Tribunal or the
decision-maker specifies, if at all,
in the order -
if the Tribunal, or the decision-maker,
respectively, is satisfied that it is just and
reasonable in the circumstances to make
the order.
(3) An order by the Tribunal, or the
decision-maker, under subsection (2) -
(a) is subject to the conditions, if
any, that are specified in the
order; and
(b) may be varied or revoked -
(i) in any case - by further
order of the Tribunal; or
(ii) if the order was made by
the decision-maker - by
further order by the
decision-maker or the
Tribunal.
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78. Decision on review
(1) Subject to the provisions of a relevant
Act, the Tribunal, on a review by the
Tribunal of a reviewable decision, may -
(a) affirm the decision that is being
reviewed; or
(b) vary the decision that is being
reviewed; or
(c) set aside the decision being
reviewed and -
(i) substitute its own
decision; or
(ii) send the matter back to
the decision-maker for
reconsideration in
accordance with any
directions or
recommendations that the
Tribunal considers
appropriate -
and, in any case, may make any order
that the Tribunal considers appropriate.
(2) The reference in subsection (1) to an
order includes a reference to -
(a) an interim order pending the
reconsideration and determination
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of the matter by the decision-
maker; and
(b) any ancillary or consequential
order -
that the Tribunal considers appropriate.
(3) The fact that a decision is made on
reconsideration under
subsection (1)(c)(ii) does not prevent the
decision from being open to review by
the Tribunal.
(4) The decision-maker's decision as
affirmed or varied by the Tribunal or a
decision that the Tribunal substitutes for
the decision-maker's decision -
(a) is to be regarded as, and given
effect as, a decision of the
decision-maker; and
(b) unless the relevant Act states
otherwise or the Tribunal orders
otherwise, is to be regarded as
having effect from the time when
the decision reviewed would
have, or would have had, effect.
(5) Without limiting subsection (4)(a), the
decision-maker has power to do anything
necessary to implement the Tribunal's
decision.
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(6) Despite subsection (4)(a), the decision as
affirmed, varied or substituted is not
again open to review before the Tribunal
as a decision of the decision-maker.
PART 8 - PRINCIPLES, POWERS AND
PROCEDURES
Division 1 - Principles governing proceedings
79. Principles governing proceedings
In any proceedings, but subject to the
provisions of a relevant Act -
(a) the procedure of the Tribunal is,
subject to this Act, to be
conducted with the minimum of
formality; and
(b) the Tribunal -
(i) is not bound by the rules
of evidence; and
(ii) may adopt, as in its
discretion it considers
appropriate, any findings,
decision or judgment of a
court or other tribunal,
insofar as may be relevant
to the proceedings; and
(iii) may otherwise inform
itself as it considers fit;
and
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(c) the Tribunal must act according
to equity, good conscience and
the substantial merits of the case
and without regard to legal
technicalities and forms.
Division 2 - Procedure generally
80. Sittings
The Tribunal will sit at the times and
places that the President directs, which
may include at different places at the
same time.
81. Hearings in public
(1) Subject to this or any other Act,
proceedings before the Tribunal, other
than alternative dispute resolution
processes or compulsory conferences,
must be heard in public.
(2) The Tribunal may give a direction under
subsection (3) if it is satisfied that it is
desirable to do so -
(a) in the interest of justice; or
(b) by reason of the confidential
nature of the evidence to be given
before the Tribunal; or
(c) in order to expedite proceedings;
or
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(d) for any other reason that the
Tribunal considers sufficient.
(3) The Tribunal may give directions -
(a) requiring that a hearing, or part of
a hearing, be held in private; or
(b) prohibiting or restricting the
publication of the name and
address of a witness appearing
before the Tribunal or of any
evidence that may enable the
identification of any person who
has appeared before the Tribunal,
who is a party in proceedings or
who is affected by a proceeding;
or
(c) prohibiting or restricting the
publication of evidence given
before the Tribunal or of the
contents of any document
produced to the Tribunal; or
(d) prohibiting or restricting the
disclosure, to some or all of the
parties to proceedings before the
Tribunal, of evidence given
before the Tribunal or of the
contents of any document
produced to the Tribunal; or
(e) excluding any person from the
hearing before the Tribunal of
any part of the proceedings.
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(4) A person must comply with a direction of
the Tribunal under subsection (3).
Penalty: Fine not exceeding 50 penalty
units.
82. Electronic hearings and proceedings without
hearings
(1) If the Tribunal considers it appropriate, it
may allow -
(a) the parties and their
representatives; and
(b) any witnesses, or one or more of
them -
to participate in any proceedings by
means of telephone, video link or any
other system or method of
communication.
(2) If the Tribunal considers it appropriate, it
may conduct all or part of any
proceedings entirely on the basis of
documents without the parties or their
representatives or any witnesses
attending or participating in a hearing or
any other part of the proceedings.
(3) Subsection (2) does not apply to
proceedings in relation to which a
hearing is required by a relevant Act to
be held.
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(4) If the Tribunal acts under this section, the
Tribunal is to take reasonably practicable
steps to ensure that the public has access
to, or is precluded from access to, matters
disclosed in the proceedings to the same
extent as if the proceedings had been
heard before the Tribunal with the
attendance in person of all persons
involved in the proceedings.
83. Practice and procedure generally
(1) The provisions of a Division Schedule in
relation to a stream of a Division apply in
relation to proceedings in respect of the
stream of that Division.
(2) The Tribunal is to take measures that are
reasonably practicable -
(a) to ensure that the parties to any
proceedings have a reasonable
opportunity to understand the
nature of the matter under
consideration; and
(b) to ensure that the parties to any
proceedings understand the
nature of any assertions made in
the proceedings and the
implications of those assertions;
and
(c) to explain to the parties to any
proceedings, if requested to do
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so, any aspect of the procedure of
the Tribunal or any decision or
ruling made by the Tribunal; and
(d) to ensure that the parties to any
proceedings have the opportunity
in the proceedings to be heard or
otherwise have their submissions
received.
(3) The Tribunal -
(a) is to take all practicable steps to
ensure that all relevant material is
disclosed to the Tribunal so as to
enable it to determine all the
relevant facts in issue in any
proceedings; and
(b) may decide the matters on which
it will hear oral evidence or
argument; and
(c) may permit or require evidence or
argument to be presented in
writing and may require such
evidence to be verified by an oath
or affirmation; and
(d) may limit the time available for
presenting the respective cases of
parties to proceedings that are
before the Tribunal at a hearing to
an extent that it considers would
not impede the fair and adequate
presentation of the cases; and
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(e) may require a document to be
served outside the State; and
(f) may adjourn any proceedings at
any time and to any place,
including for the purpose of
enabling the parties to the
proceedings to negotiate a
settlement or for the purpose of
reconsideration of a decision by
the decision-maker; and
(g) may proceed to hear and
determine proceedings in the
absence of a party to the
proceedings.
(4) To the extent that the practice or
procedure of the Tribunal is not
prescribed by or under this Act, Tribunal
rules, practice directions or a relevant
Act, the practice or procedure is to be as
the Tribunal determines.
84. Directions for conduct of proceedings
(1) The Tribunal may give directions at any
time in any proceedings and do whatever
is necessary for the expeditious and fair
conduct of proceedings.
(2) The Tribunal may give directions on its
own initiative or at the request of a party
to proceedings.
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(3) A directions hearing may be held for the
purposes of this section before any other
hearing in any proceedings.
(4) The Tribunal may give a direction
requiring a party to proceedings to
produce a document or other material, or
to provide information, to the Tribunal or
another party to the proceedings.
85. Consolidating and splitting proceedings
(1) The Tribunal may direct that 2 or more
proceedings that concern the same or
related facts or circumstances -
(a) be consolidated into one
proceeding; or
(b) remain as separate proceedings
but be heard and determined
together.
(2) If proceedings are consolidated, evidence
given in the consolidated proceedings is
admissible in relation to matters involved
in either of the proceedings that were
consolidated.
(3) The Tribunal may direct -
(a) that any aspect of any
proceedings be heard and
determined separately; or
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(b) that proceedings commenced by 2
or more persons jointly be split
into separate proceedings.
86. Completion of part-heard matters
A person who ceases to hold office as a
member of the Tribunal, other than on
account of having his or her appointment
revoked or being removed from office,
may continue to act in the relevant office
for the purpose of completing the hearing
and determining proceedings part-heard
by the person at the time when he or she
ceased to hold that office.
Division 3 - Dismissal of proceedings or part of
proceedings
87. More appropriate forum
The Tribunal may, at any time, make an
order striking out all, or any part, of any
proceedings if it considers that the matter
involved in the proceedings, or any
aspect of it, would be more appropriately
dealt with by another tribunal, a court or
any other person.
88. Dismissing proceedings on withdrawal or for
want of prosecution
(1) The applicant in any proceedings may, at
any time, withdraw, or agree to the
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withdrawal of, the proceedings or a part
of the proceedings.
(2) Unless otherwise provided by the
Tribunal rules, an applicant may only act
under subsection (1) with the leave of the
Tribunal.
(3) The Tribunal may, at any time, make an
order dismissing or striking out all, or
any part, of any proceedings, if the
applicant withdraws or agrees to the
withdrawal of the proceedings or that
part of it.
(4) At any time, the Tribunal may make an
order dismissing or striking out all, or
any part, of any proceedings for want of
prosecution.
(5) The Tribunal's power to make an order
under subsection (4) is exercisable only
by -
(a) a legally qualified member of the
Tribunal; or
(b) a registrar who is authorised in
writing by the President to make
such an order, whether generally
or in relation to particular classes
of matters or otherwise.
(6) The Tribunal may make an order under
this section on the application of a party
to proceedings or on its own initiative.
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89. Frivolous or vexatious proceedings
(1) This section applies if the Tribunal
believes that a proceeding or a part of a
proceeding -
(a) is frivolous, vexatious,
misconceived or lacking in
substance; or
(b) is otherwise an abuse of process.
(2) If this section applies, the Tribunal may
order that the proceedings, or the part of
a proceeding, be dismissed or struck out
and may make any related or ancillary
order.
(3) The Tribunal's power to make an order
under subsection (2) is exercisable only
by -
(a) a legally qualified member of the
Tribunal; or
(b) a registrar who is authorised in
writing by the President to make
such an order, whether generally
or in relation to particular classes
of matters or otherwise.
(4) The Tribunal may act under
subsection (2) on the application of a
party to the proceedings or on its own
initiative.
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(5) If a proceeding, or a part of a proceeding,
is dismissed or struck out under this
section, another proceeding of the same
kind in relation to the same matter cannot
be commenced before the Tribunal
without the leave of the President or a
Deputy President.
90. Proceedings being conducted to cause
disadvantage
(1) This section applies if the Tribunal
believes on reasonable grounds that a
party to any proceedings is conducting
the proceedings in a way that
unnecessarily disadvantages another
party to the proceedings by conduct such
as -
(a) failing to comply with an order or
direction of the Tribunal without
reasonable cause; or
(b) failing to comply with this Act or
a relevant Act; or
(c) asking for an adjournment, the
need for which is attributable to a
failure described in paragraph (a)
or (b); or
(d) attempting to deceive another
party to the proceedings or the
Tribunal; or
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(e) vexatiously conducting the
proceedings; or
(f) failing to attend any hearing in
the proceedings.
(2) If this section applies, the Tribunal may -
(a) if the party to the proceedings
who is causing the disadvantage
is the applicant, order that the
proceedings be dismissed or
struck out; or
(b) if the party to the proceedings
who is causing the disadvantage
is not the applicant -
(i) determine the proceedings
in favour of the applicant
and make any appropriate
orders; or
(ii) order that the party
causing the disadvantage
be struck out of the
proceedings.
(3) The Tribunal may act under
subsection (2) on the application of a
party to the proceedings or on its own
initiative.
(4) The Tribunal's power to make an order
under subsection (2) is exercisable only
by -
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(a) a legally qualified member of the
Tribunal; or
(b) a registrar who is authorised in
writing by the President to make
such an order, whether generally
or in relation to particular classes
of matters or otherwise.
(5) If any proceedings are dismissed or
struck out under this section, another
proceeding of the same kind in relation to
the same matter cannot be commenced
before the Tribunal without the leave of
the President or a Deputy President.
Division 4 - Tribunal rules, practice directions and codes of
conduct
91. Rules Committee
(1) There is to be a Rules Committee.
(2) The Rules Committee is to be constituted
by the following:
(a) the President;
(b) each Division Head or a member
nominated by the Division Head;
(c) the other members, if any,
appointed by the President from
time to time.
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(3) The quorum for a meeting of the Rules
Committee is a majority of the members
of the Committee from time to time.
(4) The procedures of the Rules Committee
are to be as determined by the President
from time to time.
(5) The Rules Committee may only make
under section 92 a rule for a particular
Division of the Tribunal that is not a rule
applying to Divisions generally, if the
Division Head in relation to the Division,
or a member nominated by the Division
Head, is present at the meeting at which
the rule is made.
92. Rules
(1) Tribunal rules may be made under this
section -
(a) by the President, within 30 days
after the commencement day; or
(b) by the Rules Committee.
(2) The Tribunal rules may -
(a) regulate the business of the
Tribunal and the duties of the
various members and staff of the
Tribunal; and
(b) authorise the registrars and other
members of the staff of the
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Tribunal to exercise powers with
respect to proceedings; and
(c) regulate the practice and
procedure of the Tribunal; and
(d) impose obligations, on persons
seeking to commence
proceedings, to take any step,
including -
(i) specifying forms in which
applications to the
Tribunal may or must be
made or allowing for the
Tribunal or a member of
the Tribunal to specify the
forms in which
applications to the
Tribunal may or must be
made; and
(ii) requiring persons to give
a notification (orally or in
writing) to other persons;
and
(iii) requiring persons to
provide any specified
information; and
(e) impose obligations to provide an
address for service; and
(f) impose obligations on parties to
proceedings to disclose to each
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other, before or in connection
with the hearing of the
proceedings, the contents of
expert reports or other material of
relevance to the proceedings; and
(g) regulate the referral of questions
for investigation and report by an
expert or referee; and
(h) regulate the form in which
evidence may be taken; and
(i) restrict or prohibit certain classes
of persons from appearing as
representatives in proceedings;
and
(j) provide for the Tribunal, a
member of the Tribunal or a
registrar to waive any procedural
requirement; and
(k) regulate costs and provide for the
assessment and settling of costs;
and
(l) provide for witness allowances
and expenses; and
(m) provide for other matters relating
to the management, conduct or
settlement of proceedings before
the Tribunal; and
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(n) provide for any matter indicated
in this Act to be a matter that may
be provided for in the Tribunal
Rules; and
(o) deal with any other matters
necessary or expedient for the
effective and efficient operation
of the Tribunal.
(3) The Tribunal rules may include rules in
respect of any jurisdiction conferred on
the Tribunal by a relevant Act.
(4) The Tribunal rules may not include a
requirement to pay a fee or prescribe an
amount of a fee.
(5) The Tribunal rules may allow for a
matter, in relation to which Tribunal
rules may, under this Act, be made, to be
determined by the President, another
member of the Tribunal or a registrar.
(6) The Tribunal rules may prescribe
different rules for -
(a) each of the Divisions of the
Tribunal; and
(b) different streams in the same
Division of the Tribunal; and
(c) different classes of matters.
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(7) The Tribunal rules must be consistent
with this Act, any relevant Act and the
regulations.
(8) The Tribunal rules take effect from the
date of publication in the Gazette or a
later date specified in the Tribunal rules.
93. Practice directions
(1) The President may give directions
(practice directions) relating to the
practice and procedures to be followed
in, and to the conduct of, proceedings in
the Tribunal.
(2) The practice directions must be
consistent with this Act, any relevant
Act, the regulations and the Tribunal
rules.
(3) The President must ensure that practice
directions are publicly available.
(4) Without limiting subsection (3), that
subsection is taken to be complied with if
a copy of the practice directions is
published on a website of the Tribunal.
(5) Each member of the Tribunal, and the
parties to proceedings and their
representatives, must comply with any
applicable practice directions.
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94. Code of conduct
The President may prepare and issue a
code of conduct that is to apply to
members of the Tribunal.
Division 5 - Parties
95. Parties
(1) A person is a party to proceedings if the
person is -
(a) the applicant; or
(b) in the case of any disciplinary
proceedings or any proceedings
constituted by any inquiry into a
person - the person who is the
subject of the proceedings; or
(c) in the case of proceedings
involving the review of a
decision - the decision-maker; or
(d) without limiting paragraph (a),
(b) or (c) -
(i) a respondent to an
application before the
Tribunal; or
(ii) a person against whom a
claim is made by the
proceedings; or
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(iii) a party to a dispute before
the Tribunal; or
(e) a person joined in the
proceedings by order of the
Tribunal under section 96; or
(f) a person lawfully intervening in
the proceedings; or
(g) a person specified by another
provision of this Act or a relevant
Act to be a party to the
proceedings.
(2) Subsection (1) applies subject to any
provision of a relevant Act or provision
of a Division Schedule.
(3) In any proceedings in relation to which a
decision-maker is a party, the official
description, rather than the personal
name, of the decision-maker is to be used
so far as is practicable.
96. Person may be joined as party
(1) The Tribunal may order that a person be
joined as a party to proceedings if the
Tribunal considers that -
(a) the person should be bound by, or
have the benefit of, a decision of
the Tribunal in the proceedings;
or
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(b) the person's interests are affected
by the proceedings; or
(c) for any other reason it is desirable
that the person be joined as a
party.
(2) The Tribunal may make an order under
this section -
(a) on the application of any person
or on its own initiative; and
(b) without notice to the person to
whom the order relates.
97. Intervention in proceedings
The following persons may intervene and
be heard in proceedings to which they are
not already parties:
(a) the Attorney-General;
(b) a Minister who administers the
relevant Act under which is
conferred or imposed a function
or power, the performance or
exercise of which, or purported
performance or purported
exercise of which, is in issue in
the proceedings;
(c) any other person who is
authorised by a relevant Act, or
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the Tribunal rules, to intervene in
proceedings.
Division 6 - Representation
98. Representation
(1) A party to proceedings is, subject to the
provisions of a relevant Act, entitled to -
(a) appear personally; or
(b) be represented by an Australian
legal practitioner; or
(c) with the leave of the Tribunal and
subject to the Tribunal rules - be
represented by another
representative.
(2) Unless otherwise determined by the
Tribunal, a person appearing before the
Tribunal may be assisted by another
person as a friend.
(3) A person may not act as a representative
referred to in subsection (1)(b) or (c) in
proceedings if -
(a) the person is an Australian legal
practitioner whose practising
certificate is suspended; or
(b) the person's name has been
removed from the local roll,
within the meaning of the Legal
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Profession Act 2007, or on an
equivalent roll under a law, of
another State or a Territory, that
corresponds to that Act; or
(c) the person is subject to
disciplinary proceedings under
the Legal Profession Act 2007 or
a law, of another State or a
Territory, that corresponds to that
Act.
(4) The Tribunal may -
(a) appoint a person to act as
guardian ad litem for a party; or
(b) appoint a person to represent a
party; or
(c) order that a party be separately
represented.
(5) In proceedings that directly, or
significantly, affect a person who has not
attained the age of 18 years and who is
not a party to the proceedings, the
Tribunal may -
(a) appoint a person to act as
guardian ad litem for the person;
or
(b) order that the person be
separately represented.
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Division 7 - Compulsory conferences, alternative dispute
resolution processes and settlement
99. Compulsory conferences
(1) The Tribunal may, at an initial directions
hearing or at any other time, require
parties to any proceedings to attend a
compulsory conference.
(2) The Tribunal must, if so required by the
Tribunal rules or a relevant Act, require
parties to proceedings to attend a
compulsory conference.
(3) Despite subsection (2) and any provision
of a relevant Act that requires or permits
a conference to be held, the Tribunal may
dispense with a compulsory conference if
it is of the opinion that -
(a) no useful purpose would be
served by a conference between
the parties; or
(b) there is another reason that
justifies dispensing with the
conference.
(4) The purpose of a compulsory conference
is to identify and clarify the issues in the
proceedings and to promote the
resolution of the matters by a settlement
between the parties.
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100. Procedure for compulsory conferences
(1) A compulsory conference may, at the
discretion of the member of the Tribunal
presiding at the conference, be adjourned
or reconvened from time to time.
(2) Unless the member of the Tribunal
presiding at the conference directs
otherwise, a compulsory conference is to
be held in private.
(3) Subject to this section and except to the
extent to which the Tribunal rules may
specify the procedure for a compulsory
conference, the member of the Tribunal
presiding at a compulsory conference
may determine the procedure for the
conference.
(4) The member of the Tribunal presiding at
a compulsory conference may do any one
or more of the following:
(a) if that member is not the
President or a Deputy President -
refer any question of law to the
President or a Deputy President
for determination;
(b) require a party to the proceedings
to provide particulars of the
party's case;
(c) determine who, apart from the
parties to the proceedings and
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their representatives, may be
present at the conference;
(d) adjourn the conference if the
member considers it may assist in
enabling the parties to attempt to
reach a settlement;
(e) on his or her own initiative, close
the conference at any time if, in
his or her opinion, settlement
cannot be reached;
(f) permit a party to the proceedings
to withdraw from the
proceedings, and make any
consequential order that is
appropriate in the circumstances;
(g) determine a matter against any
party to the proceedings who
obstructs or delays the
conference, fails to attend the
conference or fails to comply
with a Tribunal rule or an order
of the Tribunal and, in so doing,
make any order as the member of
the Tribunal considers fit,
including an order as to costs;
(h) do other things for which the
Tribunal rules provide.
(5) If a question of law is referred to the
President or a Deputy President under
subsection (4)(a), the President or
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Deputy President may reserve the
question in the form of a special case
stated for the opinion of the Supreme
Court under section 117.
(6) Evidence of anything said or done in the
course of a compulsory conference is
inadmissible in proceedings, except by
consent of all parties to the proceedings.
(7) If the member of the Tribunal presiding
at a conference is unable to continue with
the conference, another member of the
Tribunal may be appointed to continue
and complete the conference.
(8) The member of the Tribunal who
presided at the conference is disqualified
from sitting as a member of the Tribunal
for the purpose of hearing and
determining the matter, unless all parties
to the proceedings agree to the member's
continued participation.
(9) The regulations may set out
circumstances where the outcome of any
compulsory conference, including a
settlement, is to be available to members
of the public.
101. Settlement of matter during compulsory
conference
(1) If the parties to proceedings, during a
compulsory conference in relation to
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proceedings (other than a compulsory
conference that the parties have been
required to attend in accordance with
section 134), reach a settlement in
relation to the proceedings or part of the
proceedings, the member of the Tribunal
presiding at the compulsory conference
may -
(a) if the member is a legally
qualified member and the terms
of the settlement are in a written
agreement signed by or on behalf
of the parties -
(i) accept the terms of the
settlement and make any
determination or order,
including an order under,
or for the purposes of, a
relevant Act, necessary to
give effect to the
settlement; or
(ii) decline to accept the
terms of the settlement; or
(b) if the member is not a legally
qualified member and the terms
of the settlement are in a written
agreement signed by or on behalf
of the parties - provide the
written agreement to the
Tribunal.
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(2) The member of the Tribunal presiding at
a compulsory conference -
(a) must decline to accept under
subsection (1)(a) the terms of a
settlement reached by the parties
if the settlement appears to the
member to be inconsistent with
this Act or a relevant Act; and
(b) may decline to accept under
subsection (1)(a) the terms of a
settlement reached by the
parties -
(i) on the basis that the
settlement may materially
prejudice any person who
was not represented at the
conference but who has a
direct or material interest
in the matter; or
(ii) if the member considers
that the terms of the
settlement are
inappropriate.
(3) If the member of the Tribunal presiding
at a compulsory conference declines to
accept under subsection (1)(a) the terms
of a settlement, the member may adjourn
the proceedings to enable the parties to
explore the possibility of varying the
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settlement to comply with this Act or a
relevant Act.
(4) If the parties to proceedings, during a
compulsory conference in relation to
proceedings (other than a compulsory
conference that the parties have been
required to attend in accordance with
section 134), have not reached a
settlement in relation to the proceedings
or part of the proceedings, the member of
the Tribunal presiding at the compulsory
conference must advise the Tribunal that
the parties have not reached a settlement
in relation to the proceedings or part of
the proceedings.
(5) The member of the Tribunal presiding at
a compulsory conference that the parties
have been required to attend in
accordance with section 134 must advise
the Magistrates Court as to whether the
parties to proceedings have reached, or
have not reached, a settlement in relation
to the proceedings or part of the
proceedings.
102. Alternative dispute resolution
(1) The Tribunal may, at an initial directions
hearing in relation to proceedings or at
any other time, require the parties to
proceedings to participate in an
alternative dispute resolution process to
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be presided over by a person specified by
the Tribunal.
(2) The person specified by the Tribunal as
the person to preside over an alternative
dispute resolution process must be a
person who has been approved by the
President to act as such a person.
(3) The requirement may be made with or
without the consent of the parties.
(4) The purpose of an alternative dispute
resolution process is to resolve or narrow
the issues between the parties.
(5) The Tribunal rules may prescribe any of
the following:
(a) how notice of the alternative
dispute resolution process is to be
given;
(b) how the alternative dispute
resolution process is to be
conducted.
(6) Unless the person conducting the
alternative dispute resolution process
directs otherwise, the alternative dispute
resolution process is to be held in private.
(7) Subject to this section and except to the
extent to which the regulations may
prescribe the procedure for an alternative
dispute resolution process, the person
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conducting the process may determine
the procedure for the alternative dispute
resolution process.
(8) Evidence of anything said or done in the
course of an alternative dispute
resolution process under this section is
inadmissible in proceedings before the
Tribunal, except by consent of all parties
to the proceedings.
(9) If the person conducting the alternative
dispute resolution process is a member of
the Tribunal, the member cannot take any
further part in dealing with the
proceedings after the alternative dispute
resolution process has taken place, unless
all parties to the proceedings agree to the
member's continued participation.
(10) The person conducting the alternative
dispute resolution process in relation to a
matter may adjourn the process if the
person considers it may assist in enabling
the parties to attempt to reach a
settlement.
(11) The person conducting the alternative
dispute resolution process in relation to a
matter must notify the Tribunal as to
whether the parties have, during the
process, agreed to settle, or not to settle,
the matter.
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(12) The regulations may set out
circumstances where the outcome of any
alternative dispute resolution process
under this Act, including details of a
settlement, is to be available to members
of the public.
103. Settling of proceedings
(1) If the parties to proceedings agree in
writing to settle a matter before the
Tribunal, the Tribunal may make any
determination or order, including an
order under, or for the purposes of, a
relevant Act, necessary to give effect to
the settlement.
(2) A settlement given effect under this
section must not be inconsistent with this
Act or a relevant Act.
(3) The Tribunal may reject a settlement on
the basis that -
(a) the settlement is inconsistent with
this Act or a relevant Act; or
(b) the settlement may materially
prejudice any person who is not a
party to the settlement but who
has a direct or material interest in
the matter; or
(c) the terms of the settlement are
inappropriate.
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Division 8 - Evidentiary powers
104. Power to require person to give evidence or
to produce evidentiary material
(1) The Tribunal may, on the application of a
party to proceedings or on its own
initiative, issue a summons requiring a
person to appear before the Tribunal at a
specified time and place to give
evidence, or to produce evidentiary
material, or both.
(2) A summons to produce evidentiary
material may, instead of providing for
production of the material before the
Tribunal, provide for production of the
material to an officer of the Tribunal or
to any person nominated in the summons.
(3) The Tribunal may -
(a) retain any document, object or
substance produced before it
(whether in response to a
summons or otherwise) for the
reasonable period that it considers
fit and make copies of any
document; and
(b) require a person called to give
evidence, whether in response to
a summons or otherwise to make
an oath or affirmation (which
may be administered by any
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member or officer of the
Tribunal) to answer truthfully
questions put by any member of
the Tribunal or any person
appearing before the Tribunal;
and
(c) require any person called to give
evidence, whether in response to
a summons or otherwise, to
answer any questions, put by any
member of the Tribunal or any
person appearing before the
Tribunal, that are determined by
the Tribunal to be relevant to the
proceedings before the Tribunal.
(4) A person must not -
(a) refuse or fail to make an oath or
affirmation when required to do
so under this section; or
(b) refuse or fail without reasonable
excuse to produce evidentiary
material that the person is
required by the Tribunal to
produce; or
(c) refuse or fail without reasonable
excuse to appear before the
Tribunal in response to a
summons; or
(d) refuse or fail without reasonable
excuse to give evidence before
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the Tribunal or otherwise refuse
or fail, without reasonable
excuse, to answer any question
put in proceedings before the
Tribunal or otherwise required
under this Act; or
(e) give false or misleading evidence
to the Tribunal.
Penalty: Fine not exceeding 30 penalty
units or imprisonment for a term
not exceeding one year.
(5) A summons under this section may be
issued on behalf of the Tribunal by -
(a) any member of the Tribunal; or
(b) a registrar; or
(c) any other officer authorised,
under the Tribunal rules or by the
President, to issue such
summonses.
(6) A person required to appear before the
Tribunal in proceedings is entitled to be
paid the expenses and allowances, if any,
that are specified in the Tribunal rules.
105. Claims of privilege
(1) Subject to clause 13 of Part 8 of
Schedule 2, a person is excused from
answering a question or producing a
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document or other material in any
proceedings if the person could not be
compelled to answer the question or
produce the document or material in
proceedings in the Supreme Court.
(2) The Tribunal may require a person to
produce a document or other material to
it for the purpose of determining whether
or not it is a document or material that
the Tribunal has power to compel the
person to produce.
106. Privileges not affected
(1) Nothing in this Act affects any rule or
principle of law relating to -
(a) legal professional privilege; or
(b) "without prejudice" privilege; or
(c) public interest immunity.
(2) This section does not limit the operation
of section 105.
107. Entry and inspection of property
(1) A member of the Tribunal may enter any
land or building and carry out on or in
the land or building any inspection of the
land or building that the Tribunal
considers relevant to any proceedings.
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(2) A member of the Tribunal may authorise
an officer of the Tribunal to enter any
land or building and carry out on or in
the land or building an inspection that the
member of the Tribunal considers
relevant to any proceedings, including
for the purposes of preparing expert
evidence for the purposes of proceedings.
(3) The President, a Deputy President or a
legally qualified member may authorise a
person who is not an officer of the
Tribunal to enter any land or building
and carry out on or in the land or
building an inspection that the President,
Deputy President or legally qualified
member, respectively, considers relevant
to any proceedings, including for the
purposes of preparing expert evidence for
the purposes of proceedings.
(4) A member of the Tribunal, and a person
authorised under subsection (2) or (3),
may only enter any land or building, or
carry out on or in the land or building
any inspection, if the member or person,
respectively, has, before entering the land
or building, notified the owner or
occupier of the land, or building, of the
intention to enter the land or building.
(5) Subsection (4) does not apply in relation
to the entry of land or a building if -
(a) an emergency exists; or
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(b) the giving of notice would defeat
the purpose of entering the land
or building.
(6) A person must not obstruct a member of
the Tribunal, or a person authorised
under subsection (2) or (3), in the
exercise of a power of entry or inspection
under this section.
Penalty: Fine not exceeding 15 penalty
units or imprisonment for a term
not exceeding 6 months.
108. Expert reports
(1) The Tribunal may, with the approval of
the President, appoint an Australian legal
practitioner or medical practitioner, or
any other person with appropriate
expertise, to assist the Tribunal in any
proceedings.
(2) The Tribunal may, with the approval of
the President, refer, for investigation and
report by an expert in the relevant field,
any question arising in any proceedings.
(3) The Tribunal must seek submissions
from the parties to the proceedings
before making a referral under this
section.
(4) A person to whom a question is referred
under this section becomes an officer of
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the Tribunal and may exercise the
powers of the Tribunal that the Tribunal
delegates to the person.
(5) The Tribunal may adopt, in whole or in
part, a report obtained under this section
or may reject the report.
(6) Any action taken under subsection (5)
does not prevent the Tribunal from
making a further referral to an expert.
(7) The Tribunal may order a party to
proceedings to pay or contribute to the
costs of an expert's investigation and
report under this section in relation to the
proceedings.
109. Tribunal may authorise person to take
evidence
(1) The Tribunal may authorise, in writing, a
person, whether or not the person is a
member of the Tribunal, to take evidence
on behalf of the Tribunal for the purposes
of any proceedings.
(2) The Tribunal's power under
subsection (1) to authorise the taking of
evidence is exercisable only by the
President or a Deputy President.
(3) The Tribunal may authorise evidence to
be taken under this section outside
Tasmania.
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(4) The Tribunal may give directions as to
the taking of evidence under this section.
(5) If a person other than a member of the
Tribunal is authorised under this section
to take evidence, the person has all the
powers of a member of the Tribunal in
relation to the taking of evidence.
(6) Evidence take under this section -
(a) is to be regarded as having been
given to the Tribunal; and
(b) if taken outside Tasmania, is to
be regarded as having been given
in Tasmania.
110. Accessibility to public of evidence
(1) Subject to this Act and any relevant Act,
the Tribunal may, on application by any
member of the public, allow the applicant
to inspect or obtain a copy of -
(a) any process relating to
proceedings and forming part of
the Tribunal's records; or
(b) a transcript of evidence taken by
the Tribunal in any proceedings;
or
(c) any documentary or other
material received as evidence by
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the Tribunal in any proceedings;
or
(d) any decision or order given or
made by the Tribunal; or
(e) any other material of a prescribed
kind.
(2) Despite subsection (1), a member of the
public may inspect or obtain a copy of
the following material only with the
permission of the Tribunal:
(a) material that was produced or
provided to the Tribunal in a
hearing (or part of a hearing) held
in private;
(b) material the disclosure of which
would be contrary to a direction
or order of the Tribunal given
under another provision of this or
any other Act;
(c) material of a class prescribed by
the regulations.
(3) The Tribunal may permit inspection or
copying of material referred to in
subsection (1) or (2) subject to any
condition that it considers appropriate,
including a condition limiting the
publication or use of the material.
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(4) A decision by the Tribunal on an
application under this section is
administrative and is final and not
subject to any form of review.
(5) The Tribunal may charge a fee, fixed by
the regulations, for inspection or copying
of material under this section.
Division 9 - Orders and powers
111. Preserving subject matter of proceedings
(1) The Tribunal may, on the terms that
appear to it to be just, make an order that
may be necessary -
(a) to preserve the subject matter of
proceedings; or
(b) to otherwise protect the interests
of a party to proceedings -
until questions arising in the proceedings
have been finally determined.
(2) The Tribunal's power to make an order
under subsection (1) is exercisable by -
(a) the President or a Deputy
President; or
(b) any other member of the Tribunal
who -
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(i) is a legally qualified
member; and
(ii) is authorised by the
President to make orders
under this section.
(3) The Tribunal may make an order under
subsection (1) on the application of a
party to proceedings or on its own
initiative.
(4) An order may be made under
subsection (1) in proceedings whether or
not a person whose interests may be
affected -
(a) is a party to the proceedings; or
(b) has been given an opportunity to
be heard.
(5) An order may be made under
subsection (1) -
(a) for a specified period; or
(b) until a specified event or stage in
the proceedings.
(6) In making an order under subsection (1),
the Tribunal may provide for the
revocation of the order if specified
conditions are met.
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(7) The Tribunal rules may place conditions
on the Tribunal's power to make an order
under subsection (1).
(8) The Tribunal's power under
subsection (1) is in addition to, and does
not limit, any power of the Tribunal
under a relevant Act to make an order in
the nature of an injunction or interim
injunction.
112. Interlocutory orders
The Tribunal has power, in relation to
matters within its jurisdiction, to make
interlocutory orders.
113. Conditional, alternative and ancillary orders
and directions
(1) The Tribunal may make orders, and give
directions on conditions, that the
Tribunal considers appropriate.
(2) The Tribunal may make orders in the
alternative so that a particular order takes
effect, or does not take effect, according
to whether specified conditions are
complied with.
(3) The Tribunal may, when making an
ancillary order in relation to proceedings,
provide that a decision of the Tribunal is
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to be implemented by a person who is
not a party to the proceedings.
114. Alternative orders and relief
Although a particular form of order or
relief is sought by an applicant in
proceedings before the Tribunal, the
Tribunal may make any other form of
order or grant any other form of relief
that it considers more appropriate in the
circumstances of the case.
115. Relief from time limits
(1) The Tribunal rules may provide for the
Tribunal to extend or abridge a time limit
for doing anything in connection with
any proceedings, or the commencement
of any proceedings, even though the limit
is imposed under this Act or a relevant
Act.
(2) The extension -
(a) may be authorised even though
the time for complying has
passed; and
(b) may be given on conditions
specified by the Tribunal.
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116. Tribunal may review its decision if party
was absent
(1) In this section -
relevant hearing, in relation to a
decision of the Tribunal, means a
hearing at which the decision was
made or which preceded the
making of the decision (including
a compulsory conference) but
does not include an alternative
dispute resolution process.
(2) A party to proceedings in respect of
whom the Tribunal makes a decision
may apply to the Tribunal for a review of
the decision, if the party did not appear
and was not represented at a relevant
hearing.
(3) An application under subsection (2) must
be made within the time limits specified
by, and otherwise in accordance with, the
Tribunal rules.
(4) The Tribunal rules may limit the number
of applications that may be made under
this section in respect of the same matter
without leave of the Tribunal.
(5) If, on hearing the application, the
Tribunal is satisfied that the applicant
had a reasonable excuse for not attending
or being represented at the relevant
hearing, the Tribunal is to review the
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decision and may revoke or vary it, if the
Tribunal considers it appropriate to do
so.
(6) For the hearing of the application, the
Tribunal is to be constituted, if
practicable, by the members by whom it
was constituted when it made the
decision.
(7) A review under this section -
(a) is part of the original
proceedings; and
(b) is not a review of a decision for
the purposes of section 74.
117. Determination of questions of law
(1) If a question of law arises in a hearing
before the Tribunal, the member of the
Tribunal constituting the Tribunal or, if
the Tribunal is constituted by 2 or more
members, the presiding member, may,
with the consent of the President, reserve
the question in the form of a special case
stated for the opinion of the Supreme
Court.
(2) If a question of law has been reserved for
the opinion of the Supreme Court, the
Tribunal must not -
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(a) determine the matter until the
opinion of the Supreme Court has
been given; or
(b) proceed in a manner, or make a
determination, that is inconsistent
with the Supreme Court on the
question of law.
118. Power to cure irregularities
(1) If, in proceedings before the Tribunal or
on appeal from the Tribunal to the
Supreme Court, it appears to the
Tribunal, or the Court, respectively,
that -
(a) an irregularity has occurred
affecting the proceedings or any
matter to which the proceedings
relate; and
(b) it would be conducive to the
expeditious resolution of the
questions of substance at issue
between the parties if the powers
conferred by this section were
exercised -
the Tribunal or the Court may cure the
irregularity by ordering that, subject to
the fulfilment of the conditions, if any,
that are specified by the Tribunal, or the
Court, respectively, a requirement of this
Act, or of any other Act or law, be
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dispensed with to the extent necessary
for the purpose.
(2) An order under this section does not
affect the rights or liabilities of persons
who are not parties to the proceedings.
119. Correcting mistakes
(1) The Tribunal may correct a decision
given by the Tribunal, or a statement of
the reasons it has given for its decision,
to the extent necessary to rectify -
(a) a clerical mistake; or
(b) an error arising from an
accidental slip or omission; or
(c) a material miscalculation of
figures or a material mistake in
the description of any person,
thing or matter referred to in the
decision; or
(d) a defect of form.
(2) The correction may be made -
(a) on an application made, in
accordance with the Tribunal
rules, by a party to the
proceedings to which the relevant
decision relates; or
(b) on the Tribunal's own initiative.
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Division 10 - Costs
120. Costs of parties
(1) Unless otherwise specified in this Act, a
relevant Act, regulations under a relevant
Act or an order of the Tribunal under this
section, parties bear their own costs in
any proceedings before the Tribunal.
(2) Unless otherwise specified in a relevant
Act or regulations under a relevant Act,
the Tribunal may make an order for the
payment by a party to proceedings of all
or any of the costs of another party to the
proceedings, or of a person required to
appear before the Tribunal or to produce
evidentiary material, if the Tribunal
considers that it is appropriate to do so
after taking into account -
(a) the main objectives of the
Tribunal that are relevant to
simplifying proceedings and
issues before the Tribunal and to
keeping costs to parties in
proceedings to a minimum
insofar as is just and appropriate;
and
(b) the need to ensure that
proceedings are fair and that
parties are not disadvantaged by
proceedings that have little or no
merit; and
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(c) any provision made by the
Tribunal rules or the regulations
under a relevant Act; and
(d) any other matter considered
relevant by the Tribunal.
(3) Subsections (2) and (4) do not apply in
relation to proceedings in the Mental
Health stream or in the Guardianship
stream.
(4) Without limiting subsection (2), if the
Tribunal dismisses or strikes out any
proceedings in any prescribed
circumstances, the Tribunal should also
make an order for costs against the party
against whom the action is directed,
unless the Tribunal is of the opinion that
there is a good reason for not making an
order in the circumstances of the
particular case.
(5) If the Tribunal makes an order for the
payment of costs and does not fix the
amount of costs, that amount is to be
assessed and settled in accordance with
the Tribunal rules, or regulations under a
relevant Act, that make provision in
relation to such costs.
121. Costs of parties - related matters
(1) The power of the Tribunal under
section 120(2) and (4) to make an order
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for the payment by a party to proceedings
of the costs of another party to the
proceedings includes the power to make
an order for the payment of an amount to
compensate the other party for any
expenses or loss resulting from any
proceedings or matter.
(2) The power of the Tribunal under
section 120(2) and (4) to make an order
for the payment of an amount to
compensate the other party for any
expenses or loss resulting from any
proceedings or matter may only be
exercised by the President, a Deputy
President or a legally qualified member.
(3) The Tribunal cannot make an order
against a party to proceedings for any
expenses or loss resulting from any
proceedings or matter unless -
(a) the party brought or conducted
the proceedings frivolously or
vexatiously; or
(b) any prescribed circumstances
exist.
(4) Without limiting anything else that may
be considered in making an order for the
payment by a party to proceedings of the
costs of another party to the proceedings,
if the matter that is the subject of any
proceedings comes within the Tribunal's
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review jurisdiction, the Tribunal is to
have regard to -
(a) whether the party genuinely
attempted to enable and assist the
decision-maker to make a
decision on its merits; or
(b) if the party was the decision-
maker - whether the party
genuinely attempted to make a
decision on its merits.
(5) The Tribunal rules may deal with the
effect of certain offers to settle, and the
response, if any, to the offer, on the
making of an order for the payment by a
party to proceedings of the costs of
another party to the proceedings.
(6) The Tribunal may order that, rather than
a party to proceedings, the representative
of a party to the proceedings, in the
representative's own capacity,
compensate that or any other party to the
proceedings for costs incurred because
the representative acted in, or delayed,
the proceedings in a way that resulted in
unnecessary costs.
122. Costs incurred by Tribunal in relation to
proceedings
(1) In this section -
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costs of proceedings means the costs,
within a prescribed class of
matters, that are determined by
the Tribunal to have been
incurred by the Tribunal in
relation to any proceedings, other
than the costs as a party.
(2) The Tribunal may order that all or any of
the costs of proceedings be paid by a
party to the proceedings.
(3) Subsection (2) does not apply in relation
to proceedings in the Mental Health
stream or the Guardianship stream.
(4) The Tribunal cannot make an order under
this section against a party to the
proceedings unless -
(a) the party brought or conducted
the proceedings frivolously or
vexatiously; or
(b) the prescribed circumstances
exist.
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Division 11 - Information
123. Reports of proceedings and giving of
information in relation to Guardianship
stream proceedings
(1) Except as provided by clause 10 of Part 4
of Schedule 3, a person must not
publish -
(a) any particulars calculated to lead
to the identification of any person
in respect of whom any
Guardianship stream proceedings
have been brought or any other
person concerned in the
proceedings; and
(b) pictures of any person in respect
of whom Guardianship stream
proceedings have been brought or
any other person concerned in the
proceedings.
Penalty: Fine not exceeding 100 penalty
units or imprisonment for a
period not exceeding 6 months, or
both.
(2) If the Tribunal considers that it is in the
public interest to do so, the Tribunal may
determine that a person may publish, or
cause to be published in accordance with
its determination, a report of any
Guardianship stream proceedings.
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(3) A person who makes a report or gives
information to the Tribunal -
(a) for the purpose of an application
to the Tribunal under an Act, in
relation to which the performance
or exercise of functions or powers
has been allocated under a
Division Schedule to the
Guardianship stream, to assist in
deciding whether an application
should be made under this Act; or
(b) when requested so to do by the
Public Guardian, the Tribunal or
an officer of the Tribunal -
is not subject to any liability for making
the report or giving the information, if he
or she acts in good faith and has
reasonable and probable grounds for
believing the report or information to be
true.
(4) A person must not, for the purposes of
proceedings in the Guardianship stream,
make a report that is malicious or false in
any material particular, or give
information, referred to in subsection (3),
that is malicious or false in any material
particular.
Penalty: Fine not exceeding 50 penalty
units.
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124. Provision of information in Guardianship
stream proceedings
(1) Evidence given at a hearing of the
Tribunal in proceedings in the
Guardianship stream is not to be used in
any civil or criminal proceedings other
than proceedings -
(a) for an offence against this Act, or
an Act in relation to which the
performance or exercise of
functions or powers has been
allocated under a Division
Schedule to the Guardianship
stream, to which the proceedings
relates; or
(b) for an offence committed at, or
arising out of, a hearing of the
Tribunal in relation to any Act in
relation to which the performance
or exercise of functions or powers
has been allocated under a
Division Schedule to the
Guardianship stream.
(2) The Tribunal may, for the purposes of
any proceedings in the Guardianship
stream, require any government
department or State authority, the Public
Guardian or a service provider, guardian
or administrator, to provide a report or
information on any matter relating to the
proceedings.
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(3) Despite section 127A of the Evidence Act
2001, a medical practitioner may, when
reporting to the Tribunal in proceedings
in the Guardianship stream, divulge
information without the consent of the
person to whom the information relates.
Division 12 - Process and enforcement
125. Provision of documents, legal process and
service
(1) A notice, order or other document for the
purposes of proceedings may be served
on or given to a person or body -
(a) by means of personal service; or
(b) by posting a copy of the notice or
document, addressed to the
person or body -
(i) to the address for service
of the person or body; or
(ii) if there is no address for
service in relation to the
person or body - to the
business address, or
residential address, of the
person or body, or the
business address, or
residential address of the
person or body that is
last-known to the person
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or body serving the notice
or document; or
(c) by leaving a copy of the notice or
document, addressed to the
person or body -
(i) at the address for service
of the person or body; or
(ii) if there is no address for
service in relation to the
person or body - to the
business address, or
residential address, of the
person or body, or the
business address, or
residential address, of the
person or body that is
last-known to the person
or body serving the notice
or document; or
(d) if the person or body has
consented to electronic service by
means of a facsimile address, an
email address or a mobile phone
number specified by the person or
body - by transmitting the notice
or document, in an electronic
format, addressed to the person or
body, to that address or number;
or
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(e) if the person or body is a
corporation - by serving a copy
of the notice or document on the
corporation in any manner by
which service of such a notice or
document may, by law, be served
on the corporation; or
(f) in the manner that the Tribunal,
or a registrar, determines in a
particular case.
(2) For the purposes of this Act, a notice,
order or other document may be issued,
served or executed on a Sunday as well
as any other day.
(3) If a person has provided to the Tribunal,
in relation to proceedings or proposed
proceedings, a document that contains an
email address of the person or is sent to
the Tribunal from an email address, the
person is taken to have consented to the
issue to, or service on, the person of a
notice, order or other document relating
to the proceedings, by means of it being
sent to the email address.
(4) Subject to the Tribunal rules, and any
direction or order of the Tribunal, an
application or other document may be
given to the Tribunal -
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(a) by submitting it to the Tribunal in
an electronic form approved by
the President; or
(b) by sending it by email to the
registry of the Tribunal; or
(c) by sending it by facsimile to the
registry of the Tribunal; or
(d) by giving it, at the registry of the
Tribunal, to a member of staff of
the Tribunal; or
(e) by sending it by post to the
registry of the Tribunal; or
(f) by sending it in a manner
approved by a registrar.
(5) A registrar may refuse to receive a
document presented to the Tribunal by
lodgement in paper or other physical
form and direct that the document be
lodged with the Tribunal in an electronic
form, as directed by the registrar, by
which a document may be lodged with
the Tribunal.
126. Enforcement of decisions and orders of
Tribunal
(1) In this section -
appropriate court means -
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(a) in relation to an order of the
Tribunal that is a monetary order
for an amount that does not
exceed the amount that represents
the jurisdiction limit of the
Magistrates Court for a monetary
claim founded on contract - the
Magistrates Court; and
(b) in any other case - the Supreme
Court.
(2) If the Tribunal makes a monetary order,
the amount specified in the order may be
recovered in the appropriate court, by a
person recognised by the regulations for
the purposes of this subsection, as if it
were a debt due and payable to the
person.
(3) A person must not contravene or fail to
comply with an order of the Tribunal,
other than a monetary order.
Penalty: Fine not exceeding 60 penalty
units or imprisonment for a term
not exceeding one year.
127. Proof of decisions and orders of Tribunal
(1) Every document requiring
authentification by the Tribunal is
sufficiently authenticated without the
seal of the Tribunal if it is -
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(a) signed by a member of the
Tribunal or a registrar; or
(b) authenticated in a manner
prescribed by the Tribunal rules.
(2) All courts and persons acting judicially
must take judicial notice of the signature
of any person who is or has been the
President, Registrar, Deputy Registrar or
a member of the Tribunal and of the fact
that that person is or was the President,
Registrar, Deputy Registrar or a member,
as the case may be.
(3) An apparently genuine document
purporting -
(a) to be a copy of a decision or order
of the Tribunal; and
(b) to be certified as such by a
registrar -
is to be accepted in any legal
proceedings, in the absence of proof to
the contrary, as a true copy of a decision
or order of the Tribunal.
128. Disrupting proceedings of Tribunal
(1) A person must not -
(a) wilfully interrupt any proceedings
of the Tribunal; or
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(b) use offensive, threatening,
abusive or insulting language, or
behave in a disorderly, offensive,
threatening, abusing or insulting
manner, towards the Tribunal,
members of the Tribunal or
officers of the Tribunal or at a
place where proceedings of the
Tribunal are being conducted; or
(c) obstruct, or improperly influence,
the conduct of proceedings of the
Tribunal; or
(d) do anything that would, if the
Tribunal were a court of record,
constitute a contempt of that
court.
Penalty: Fine not exceeding 50 penalty
units or imprisonment for a term
not exceeding 3 months.
(2) Nothing in this section derogates from
the operation of another provision of this
Act.
PART 9 - FEDERAL JURISDICTION PROCEEDINGS
129. Interpretation
(1) In this Part -
federal jurisdiction means jurisdiction
of the kind referred to in section
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75 or 76 of the Constitution of the
Commonwealth;
rules of the Court means the rules of
the Court made under the
Magistrates Court (Civil
Division) Act 1992;
transferred proceedings - see
section 131.
(2) For the purposes of this Part, a reference
to the making of an application, or an
application made, to the Tribunal is taken
to include the referral of a matter to, or
otherwise bringing of a matter before, the
Tribunal.
130. Relationship of this Part to this Act and
other laws
The provisions of this Part prevail to the
extent of any inconsistency between
those provisions and any other provisions
of the relevant Act.
131. Transfer to Magistrates Court of
applications involving federal jurisdiction
(1) If a person has standing to make an
application to the Tribunal in the exercise
of its original jurisdiction under
section 72 or its review jurisdiction under
section 74, the application may, if the
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Tribunal orders under subsection (2) that
proceedings on the application are to be
transferred to the Magistrates Court, be
determined by the Magistrates Court in
accordance with this Part instead of the
Tribunal.
(2) If, following an application made to the
Tribunal in the manner and form required
under this Act for the kind of application
concerned, the Tribunal considers that -
(a) it does not have, or there is some
doubt as to whether it has,
jurisdiction to determine the
application because its
determination may involve the
exercise of federal jurisdiction;
and
(b) the Tribunal would otherwise
have had jurisdiction enabling it
to determine the application -
the Tribunal may order that proceedings
on the application be transferred to the
Magistrates Court.
(3) Proceedings transferred to the
Magistrates Court under subsection (2)
are transferred proceedings.
(4) If proceedings are transferred to the
Magistrates Court under this Part -
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(a) the application made to the
Tribunal will be taken to be duly
made as an application to the
Court; and
(b) the proceedings may be continued
and completed as if steps taken in
the proceedings prior to the
transfer had been taken in the
Court.
(5) The fee payable in respect of the
application is the prescribed fee (if any)
payable to the Tribunal under this Act.
(6) A party to the transferred proceedings is
not required to pay any fees in relation to
the transfer of the proceedings to the
Magistrates Court unless the Court
determines that additional fees are
payable under the Magistrates Court
(Civil Division) Act 1992 because of a
substantial alteration in the nature of the
claims in the proceedings.
(7) An order made by the Tribunal under
subsection (2) may not be the subject of
review or appeal under Part 10 of this
Act.
(8) The Magistrates Court may remit
transferred proceedings to the Tribunal
for determination if the Court is satisfied
that the Tribunal has jurisdiction to
determine the matter.
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(9) If the Magistrates Court remits
transferred proceedings to the Tribunal,
the Court may make the orders, if any,
that it considers appropriate to facilitate
the determination of the proceedings by
the Tribunal.
(10) The Tribunal must determine transferred
proceedings that are remitted to it in
accordance with any orders made by the
Magistrates Court and must determine
such proceedings in accordance with any
such order.
132. Magistrates Court proceedings, jurisdiction,
powers and functions, &c.
(1) Transferred proceedings are taken to
have been commenced in the Magistrates
Court on the day on which the
application to which the proceedings
relate was first made to the Tribunal.
(2) Subsection (1) applies despite any
limitation period under the Limitation Act
1974 or any relevant Act that applies to
the application concerned, if the
application was made to the Tribunal
before the expiry of the period.
(3) The Magistrates Court has, and may
exercise, all of the jurisdiction, powers
and functions in relation to the
transferred proceedings that the Tribunal
would have if it could exercise federal
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jurisdiction, including jurisdiction,
powers and functions conferred or
imposed on the Tribunal by or under this
Act or a relevant Act.
(4) The practices and procedures that apply
to the Tribunal under this Act (including
the Tribunal rules) or a relevant Act will
apply to the Magistrates Court in respect
of the transferred proceedings unless, and
to such extent as, the Court determines
otherwise.
(5) The Magistrates Court may make the
orders, including in relation to the
Tribunal, that it considers appropriate to
facilitate its determination of the
transferred proceedings.
133. Modifications of certain functions, powers
and procedures, &c.
(1) Despite section 132, the following
provisions apply in relation to transferred
proceedings:
(a) the Magistrates Court is to be
constituted as provided by or
under the Magistrates Court
(Civil Division) Act 1992 instead
of as provided by or under
another Act;
(b) subject to the provisions of a
relevant Act and the rules of the
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Court, a party to the proceedings
is entitled to be represented by a
legal practitioner or, with leave of
the Magistrates Court, by another
person, but only in the
circumstances that the Tribunal
would be permitted to allow if the
proceedings were before the
Tribunal;
(c) the law applicable to reviews of,
or appeals against, decisions of
the Magistrates Court applies to
decisions of the Court in the
transferred proceedings instead of
Part 10, but the Court may make
an order staying the operation of
the relevant decision, including
the decision of a relevant
decision-maker, until the
proceedings are finally decided,
on the conditions, if any,
specified in the order;
(d) the Magistrates Court may make
orders giving effect to any
settlement reached by the parties
even if that settlement was
reached before the
commencement day or before
proceedings were transferred to
the Court under this Part.
(2) Despite section 132 -
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(a) the Magistrates Court may award
costs in transferred proceedings
only in the circumstances that the
Tribunal would be permitted to
award them; and
(b) costs in transferred proceedings
are to be assessed in the same
way as they would be if the
proceedings were before the
Tribunal; and
(c) the Magistrates Court may direct
the Tribunal to determine the
costs to be awarded by the
Magistrates Court in transferred
proceedings and, if so directed,
the Tribunal is to determine the
costs accordingly and advise the
Court of the costs.
(3) The Magistrates Court -
(a) must not make orders giving
effect to any settlement if the
settlement appears to the
Magistrates Court to be
inconsistent with this Act or a
relevant Act; and
(b) may decline to make orders
giving effect to any settlement -
(i) on the basis that the
settlement may materially
prejudice any person who
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was not represented at a
part of proceedings at
which the settlement was
reached but who has a
direct or material interest
in the matter; or
(ii) if the Magistrates Court
considers that the terms of
the settlement are
inappropriate.
134. Compulsory conferences and alternative
dispute resolution
(1) Subject to the provisions of a relevant
Act, the Magistrates Court may, if the
Court considers it is appropriate to do so,
require the parties to transferred
proceedings to -
(a) participate in an alternative
dispute resolution process under
section 102; or
(b) attend a compulsory conference
conducted under sections 99 and
100.
(2) The Magistrates Court may give to the
Tribunal the directions that the Court
considers appropriate in relation to the
procedures and conduct of the alternative
dispute resolution process or compulsory
conference.
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135. References to Tribunal in other Acts or
regulations
To avoid doubt, but subject to the
regulations -
(a) a reference to the Tribunal in a
provision, of an Act or
regulations under an Act, that
confers or imposes a function on
the Tribunal is to be read as
including a reference to the
Magistrates Court, if the function
is conferred or imposed on the
Court because of the operation of
this Part; and
(b) a reference to proceedings in the
Tribunal in a provision referred to
in paragraph (a) is to be read as
including a reference to
proceedings in the Magistrates
Court.
PART 10 - APPEALS TO SUPREME COURT
136. Appeals to Supreme Court
(1) A party to proceedings, in the General
Division, in relation to an Act, other than
the Anti-Discrimination Act 1998, may
appeal to the Supreme Court, on a
question of law, against any decision of
the Tribunal in the proceedings.
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(2) Any person may appeal to the Supreme
Court, on a question of law or fact,
against -
(a) an order of the Tribunal made in
the exercise of its jurisdiction
under section 64 of the Land Use
Planning and Approvals Act 1993
or section 48 of the
Environmental Management and
Pollution Control Act 1994; or
(b) a decision by the Tribunal not to
make an order in the exercise of
its jurisdiction under section 64
of the Land Use Planning and
Approvals Act 1993 or section 48
of the Environmental
Management and Pollution
Control Act 1994.
(3) Any person may appeal to the Supreme
Court, on a question of law or fact,
against a decision of the Tribunal to
grant, or to refuse to grant, an application
for an enforcement order under the
Historic Cultural Heritage Act 1995.
(4) Any person may -
(a) appeal to the Supreme Court, on a
question of law or fact, against -
(i) an order of the Tribunal
under section 89(1) or (2)
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of the Anti-Discrimination
Act 1998; or
(ii) an order of the Tribunal
under section 95 of the
Anti-Discrimination Act
1998; or
(iii) a decision made under
section 99 of the Anti-
Discrimination Act 1998
to dismiss a complaint; or
(b) appeal to the Supreme Court, on a
question of law, against a
decision made under section
86(4) of the Anti-Discrimination
Act 1998.
(5) A person aggrieved by a determination
made under section 28(4) of the Motor
Accidents (Liabilities and Compensation)
Act 1973 may appeal to the Supreme
Court, on a question of law or fact,
against the determination and the
Supreme Court may on appeal, confirm,
vary or rescind the determination.
(6) If the Tribunal makes a decision under
the Guardianship and Administration Act
1995 or the Disability Services Act 2011,
a person -
(a) who -
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(i) appeared, or was entitled
to appear, before the
Tribunal at a hearing for
the purposes of that Act at
which the decision was
made; or
(ii) with the leave of the
Tribunal, would have
been entitled to appear
before the Tribunal at a
hearing for the purposes
of that Act at which the
decision was made; or
(b) in respect of whom the decision
was made -
may appeal, against the decision, to the
Supreme Court, on a question of law, as
of right, or with the leave of the Supreme
Court, on a question of fact.
(7) A party to proceedings of the Tribunal in
relation to the Mental Health Act 2013 or
the Corrections Act 1997 may appeal to
the Supreme Court -
(a) on a question of law, as of right;
or
(b) with the leave of the Supreme
Court, on a question of fact -
against a decision made in those
proceedings.
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(8) Any person who is aggrieved by a
decision, in relation to the Mental Health
Act 2013, of the Tribunal, made
otherwise than in proceedings, may
appeal, against the decision, to the
Supreme Court -
(a) on a question of law, as of right;
or
(b) with the leave of the Supreme
Court, on a question of fact.
(9) If the Tribunal makes a decision for the
purposes of the Powers of Attorney Act
2000 in relation to a power of attorney -
(a) a donor of the power of attorney;
or
(b) an attorney in relation to the
power of attorney; or
(c) a person who -
(i) appeared, or was entitled
to appear, before the
Tribunal at a hearing for
the purposes of that Act in
relation to the power of
attorney; or
(ii) with the leave of the
Tribunal, would have
been entitled to appear
before the Tribunal at a
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hearing for the purposes
of that Act in relation to
the power of attorney -
may appeal, against the decision, to the
Supreme Court, on a question of law, as
of right, or, with the leave of the
Supreme Court, on a question of fact.
(10) Despite any other provision of this
section, a person may not appeal to the
Supreme Court against a decision that is
within a prescribed class of decisions of
an interlocutory nature.
137. Procedure on appeal
(1) An appeal under section 136 in relation
to a decision is to be instituted, heard and
determined in accordance with the rules
in force under the Supreme Court Civil
Procedure Act 1932.
(2) An appeal under section 136 in relation
to a decision is to be instituted -
(a) within 30 days after the day on
which the decision is made; or
(b) if, within the period referred to in
paragraph (a), the person
instituting the appeal gives to the
Tribunal a written request for a
statement of reasons for the
decision - within 30 days after
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the day on which the person is
given that statement of reasons.
(3) Despite subsection (1), an appeal in
relation to a decision, under the
Guardianship and Administration Act
1995, of the Tribunal that is made in
respect of an application for consent to
the carrying out of a termination of
pregnancy is to be instituted within 2
days after the making of the decision.
(4) Despite subsection (1), the Supreme
Court may, if it is satisfied that it is just
and reasonable in the circumstances to do
so, dispense with the requirement that the
appeal should be instituted within the
period referred to in that subsection, even
if the time for instituting the appeal has
expired.
138. Determination of appeal
(1) The Supreme Court may, on an appeal
under this Part against a decision -
(a) affirm the decision appealed
against; or
(b) vary the decision appealed
against; or
(c) set aside the decision appealed
against and, if it considers fit,
return the matter to the Tribunal
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for reconsideration in accordance
with any directions that the Court
considers appropriate.
(2) The Supreme Court may, on an appeal
under this Part, make any interim,
ancillary or consequential order that the
Court considers appropriate.
139. Effect of appeal on decision
(1) The commencement of proceedings
under this Part does not affect the
operation of a decision to which the
proceedings relate or prevent the taking
of action to implement such a decision.
(2) However, the Supreme Court may, on the
conditions, if any, that are specified in
the order, make an order staying the
operation of a relevant decision until the
proceedings are finally decided.
(3) The Supreme Court may act under
subsection (2) on application or on its
own initiative.
PART 11 - PROTECTION AND IMMUNITIES
140. Protections and immunities
(1) A member of the Tribunal has, in the
performance and exercise of the
functions and powers of a member of the
Tribunal, the same protection and
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immunities as a judge of the Supreme
Court.
(2) A member of the staff of the Tribunal
and any person acting under the direction
of the Tribunal, a member of the
Tribunal or a member of the staff of the
Tribunal incurs no civil or criminal
liability for an act, or omission, done, or
omitted to be done, in good faith in
performing or exercising, or purportedly
performing or exercising, any function or
power under this Act or a relevant Act or
in the administration or execution, or
purported administration or execution, of
this Act or a relevant Act.
(3) This section does not affect the operation
of section 72 of the Public Trustee Act
1930.
(4) A person representing a party to
proceedings before the Tribunal has the
same protection and immunity as a legal
practitioner has in representing a party in
proceedings in the Supreme Court.
(5) A party to proceedings before the
Tribunal has the same protection and
immunity as a party to proceedings in the
Supreme Court.
(6) A person who appears as a witness
before the Tribunal or produces books,
papers or documents to the Tribunal has
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the same protection as a witness in
proceedings before the Supreme Court.
(7) A person who -
(a) is taking evidence on behalf of
the Tribunal; or
(b) is specified by the Tribunal under
section 102 as the person
presiding over an alternative
dispute resolution process and
who is presiding over that process
under this Act; or
(c) is an expert acting for, or
providing advice to, the
Tribunal -
has, in doing so, the same protections,
privileges and immunities as a member
of the Tribunal.
141. Protection from liability for torts
(1) An action in tort does not lie against a
person for anything that the person has
done in good faith, in the performance or
purported performance of a function
under this Act or a relevant Act as a
member of the Tribunal, a member of the
staff of the Tribunal or an officer of the
Tribunal.
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(2) The Crown is also relieved of any
liability that it might otherwise have had
for a person having done anything as
described in subsection (1).
(3) The protection given by this section
applies even though the thing done as
described in subsection (1) may have
been capable of being done whether or
not this Act or a relevant Act had been
enacted.
(4) In this section, a reference to the doing of
anything includes a reference to an
omission to do anything.
142. Protection for compliance with Act
(1) No civil or criminal liability attaches to a
person for compliance, or purported
compliance, in good faith, with a
requirement of this Act.
(2) In particular, if a person produces a
document or other material as required
under this Act, no civil liability attaches
to the person for producing the document
or material, whether the liability would
arise under a contract or otherwise.
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PART 12 - MISCELLANEOUS
143. Annual report
(1) The President of the Tribunal must, on or
before 31 October in each year, make a
report to the Attorney-General on the
administration and operation of the
Tribunal during the previous financial
year.
(2) The Attorney-General must, within 12
sitting-days after receiving a report under
this section, cause copies of the report to
be laid before both Houses of Parliament.
144. Seal of Tribunal
(1) The Tribunal may have a seal.
(2) If the Tribunal has a seal -
(a) it is to be kept and used as
authorised by the Tribunal; and
(b) all courts and persons acting
judicially must take judicial
notice of the imprint of the seal
on a document and presume that
it was duly sealed by the
Tribunal.
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145. Regulations
(1) The Governor may make regulations for
the purposes of this Act.
(2) Without limiting the generality of
subsection (1), the regulations may -
(a) provide for information to be
included in registers to be kept
for the purposes of this Act and
for persons to be able to view or
obtain information to be kept in
such registers; and
(b) prescribe matters relevant to the
practice or procedures of the
Tribunal; and
(c) prescribe, and provide for the
requirement to pay, fees in
relation to proceedings before the
Tribunal, other than fees in
relation to an alternative dispute
resolution process or compulsory
conferences; and
(d) provide for the reduction, refund,
or waiver, by a person of fees
paid in relation to proceedings
before the Tribunal; and
(e) prescribe penalties not exceeding
50 penalty units for contravention
of, or non-compliance with, any
regulation; and
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(f) make provisions of a savings or
transitional nature consequent on
the vesting of jurisdiction on the
Tribunal under another Act.
(3) The regulations may be made so as to
apply differently according to matters,
limitations or restrictions, whether as to
time, circumstance or otherwise,
specified in the regulations.
(4) The regulations may authorise any matter
to be from time to time determined,
applied or regulated by a person or body
specified in the regulations.
(5) Without limiting the generality of
subsection (2), a regulation under
subsection (2)(f) may -
(a) operate in addition to any savings
or transitional provision enacted
under another Act in connection
with the vesting of jurisdiction in
the Tribunal; and
(b) operate so as to modify the
operation or effect of another Act
insofar as may be expedient in
connection with the transfer of
jurisdiction to the Tribunal from
another person or body; and
(c) take effect from the day on which
jurisdiction is vested in the
Tribunal under another Act
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(including so as to provide for the
retrospective operation of the
regulation).
146. Administration of Act
Until provision is made in relation to this
Act by order under section 4 of the
Administrative Arrangements Act 1990 -
(a) the administration of this Act is
assigned to the Minister for
Justice; and
(b) the department responsible to that
Minister in relation to the
administration of this Act is the
Department of Justice.
PART 13 - SAVINGS AND TRANSITIONAL
PROVISIONS
Division 1 - Abolition of Boards and Tribunals and
transition of certain members
147. Interpretation of Part 13
In this Part -
current member of a relevant Board
or Tribunal means a person who,
immediately before the
commencement day, held office
as -
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(a) the head of the relevant Board or
Tribunal (however described); or
(b) a deputy head of the relevant
Board or Tribunal (however
described); or
(c) a member of the relevant Board
or Tribunal (however described).
148. Abolition of existing Boards and Tribunals
Each relevant Board or Tribunal is
abolished on the commencement day.
149. Current members of relevant Board or
Tribunal cease to hold office
(1) A current member of a relevant Board or
Tribunal ceases to hold office as such on
the commencement day.
(2) If a person ceases to hold an office by
virtue of subsection (1), the person is not
entitled to any remuneration or
compensation because of the loss of that
office.
(3) Subsection (2) applies despite anything
in a relevant Act concerning the
circumstances or processes for the
removal of the person from, or the
vacation of the office of, a person from
an office under the relevant Act.
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150. Current members to hold office as members
of Tribunal
(1) A current member of a relevant Board or
Tribunal referred to in column 1 of the
following table becomes, on the
commencement day, a member of the
Tribunal of the type specified opposite in
column 2 of the table.
Column 1 - Member of Board Column 2 - Tribunal member
or Tribunal
1. President of Mental Health Deputy President
Tribunal
2. Deputy President of Mental Senior member
Health Tribunal
3. Member of Mental Health Ordinary member
Tribunal
4. President of Guardianship and Deputy President
Administration Board
5. Deputy President of Senior member
Guardianship and
Administration Board
6. Member of Guardianship and Ordinary member
Administration Board
7. Chairperson of Resource Deputy President
Management and
Planning Appeal Tribunal
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Column 1 - Member of Board Column 2 - Tribunal member
or Tribunal
8. Deputy Chairperson of Senior member
Resource Management
and Planning Appeal
Tribunal
9. Member of Resource Ordinary member
Management and
Planning Appeal Tribunal
10. Chief Commissioner of Deputy President
Asbestos Compensation
Tribunal
11. Commissioner of Asbestos Senior Member
Compensation Tribunal
12. Part-time member of Ordinary member
Asbestos Compensation
Tribunal
13. Chief Commissioner of Deputy President
Workers Rehabilitation and
Compensation Tribunal
14. Commissioner of Workers Senior member
Rehabilitation and
Compensation Tribunal
15. Part-time Commissioner of Ordinary member
Workers Rehabilitation and
Compensation Tribunal
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Column 1 - Member of Board Column 2 - Tribunal member
or Tribunal
16. Chairperson of Anti- Deputy President
Discrimination Tribunal
17. Member of Anti- Ordinary member
Discrimination Tribunal
18. Chairperson of Health Deputy President
Practitioners Tribunal
19. Deputy Chairperson of Senior member
Health Practitioners Tribunal
20. Professional member, or Ordinary member
community member, of Health
Practitioners Tribunal
21. Chairman of Motor Deputy President
Accidents Compensation
Tribunal
22. Member of Motor Accidents Ordinary member
Compensation Tribunal
23. Chief Chairperson of Forest Senior member
Practices Tribunal
24. Deputy Chief Chairperson of Ordinary member
Forest Practices Tribunal
25. Member of Forest Practices Ordinary member
Tribunal
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(2) If a person is a current member of a
relevant Board or Tribunal who would, in
accordance with the table in
subsection (1), become -
(a) both a Deputy President and
another member - the person
becomes, on the commencement
day, a Deputy President; or
(b) both a senior member and an
ordinary member and
paragraph (a) does not apply - the
person becomes, on the
commencement day, a senior
member only.
(3) If a current member of a relevant Board
or Tribunal was, immediately before the
commencement day, a person who is
appointed as a current member on the
basis that he or she was to perform and
exercise the functions and powers of a
current member only during the periods,
within the person's term of appointment
to that office, determined from time to
time by another person, the person is
taken to be appointed as a member of the
Tribunal on a sessional basis.
(4) A current member of a relevant Board or
Tribunal who, in accordance with
subsection (1), becomes a member of the
Tribunal and who was appointed under
the relevant Act for a period is taken to
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have been appointed to the office until
the day on which his or her appointment
as a current member of a relevant Board
or Tribunal would have, but for the
abolition of the Board or Tribunal by this
Act, expired.
(5) A current member of a relevant Board or
Tribunal who, in accordance with
subsection (1), becomes a member of the
Tribunal and who was appointed under
the relevant Act only in relation to
particular proceedings, is taken to have
been appointed as a member of the
Tribunal only in relation to such
proceedings.
(6) Nothing in this section is to be taken to
prevent a person from ceasing to hold
office under this Act in the circumstances
in which a member of the Tribunal
ceases to hold office under this Act.
151. Remuneration of current member of
relevant Board or Tribunal
(1) The remuneration, as a member of the
Tribunal, of a current member of a
relevant Board or Tribunal is to be, for
the period for which the person holds
office as a member of the Tribunal before
the person is reappointed, if at all, as a
member of the Tribunal -
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(a) the same as the remuneration to
which the person was entitled,
immediately before the
commencement day, as a current
member of the Board or Tribunal
of which the person was a
member; or
(b) if the person was, immediately
before the commencement day, a
member of more than one Board
or Tribunal under a relevant Act -
the same as the highest
remuneration, for any one of
those offices, to which the person
was entitled immediately before
the commencement day.
(2) Nothing in this section is to be taken to
prevent section 5 applying in relation to a
person.
(3) Nothing in this section is to be taken to
prevent the application to a person of a
determination of the Governor as to the
salary, remuneration or allowances of the
person, under a provision of this Act that
applies to the person, if the determination
does not reduce the salary, remuneration
or allowances of the person during the
term of office as a member of the
Tribunal that the person began under this
Part.
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Division 2 - Proceedings of former relevant Board or
Tribunal
152. Proceedings that were on foot on
commencement day
(1) This section applies in relation to
proceedings before a relevant Board or
Tribunal that -
(a) were instituted or commenced
before the commencement day;
and
(b) have not been, before that day,
finally determined by the relevant
Board or Tribunal.
(2) If proceedings, before a relevant Board
or Tribunal, to which this section applies,
had not been heard before the
commencement day by the relevant
Board or Tribunal, the proceedings are to
be taken, on and from the
commencement day, to have been
instituted or commenced before the
Tribunal established under this Act and
may be heard and determined instead by
that Tribunal.
(3) If a relevant Board or Tribunal had,
before the commencement day, begun to
hear, but had not determined,
proceedings, before the relevant Board or
Tribunal, to which this section applies -
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(a) the person or persons constituting
the Board or Tribunal for those
proceedings are to continue, on
and from the commencement day,
to hear and determine the matter
to which the proceedings relate,
sitting as the Tribunal established
under this Act; and
(b) the Tribunal may have regard to
any record of the proceedings
before the relevant Board or
Tribunal, including a record of
any evidence taken in the
proceedings before the relevant
Board or Tribunal.
(4) For the purposes of subsections (2) and
(3), in relation to proceedings to which
those subsections relate -
(a) the Tribunal established by this
Act has and may perform and
exercise all the functions and
powers that the relevant Board or
Tribunal, to which the
proceedings related before the
commencement day, had
immediately before that day; and
(b) the provisions of any Act or
instrument of a legislative
character that would have applied
to or in respect of the
proceedings, had this Act not
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commenced on the
commencement day, continue to
apply.
153. Pending court proceedings in relation to
relevant Board or Tribunal may be
completed
(1) This section applies in relation to
proceedings, in a court, on an appeal
against, or for the review of, a decision
of a relevant Board or Tribunal, if the
proceedings -
(a) were instituted or commenced
before the commencement day;
and
(b) have not been finally determined
before that day by the court.
(2) A court, in proceedings to which this
section applies, may, on and from the
commencement day, continue to deal
with the proceedings until they are
concluded.
(3) For the purposes of proceedings, in a
court, referred to in subsection (2) -
(a) the court continues to have, and
may perform and exercise, all the
functions and powers that the
court had in relation to the
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proceedings immediately before
the commencement day; and
(b) the provisions of any Act or
instrument of a legislative
character that would have applied
to or in respect of the
proceedings, had this Act not
commenced on the
commencement day, continue to
apply.
(4) Without limiting subsection (3), if the
powers of the court immediately before
the commencement day included the
power to remit the proceedings to be
heard and determined again by a Board
or Tribunal in existence immediately
before the commencement day, the court
may, in determining the proceeding -
(a) remit the proceedings to the
Tribunal established by this Act;
and
(b) make the other orders that it
considers appropriate to facilitate
the remitting of the proceedings
to the Tribunal established by this
Act.
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154. Certain unexercised rights continue
(1) If a person had, immediately before the
commencement day, a right (including a
right exercisable only with leave) -
(a) to apply to a relevant Board or
Tribunal to make a decision at
first instance concerning a matter;
or
(b) to apply to a relevant Board or
Tribunal for a review of a
decision of another person or
body; or
(c) to appeal to a relevant Board or
Tribunal against a decision of
another person or body -
but had not, before that day, exercised
that right, the person may apply or appeal
to the Tribunal established under this Act
for the performance and exercise of the
same functions and powers that could
have been performed or exercised by the
relevant Board or Tribunal if that Board
or Tribunal had not been abolished.
(2) For the purposes of subsection (1) -
(a) the Tribunal established by this
Act has and may perform and
exercise all the functions and
powers that the relevant Board or
Tribunal would have had in
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relation to the application or
appeal if the application or appeal
had been made before the
commencement day, including
any functions or powers relating
to the granting of leave to apply
or appeal; and
(b) the provisions of any Act or
instrument of a legislative
character, including provisions
concerning the time within which
to apply or appeal, that would
have applied to or in respect of
the proceedings, had this Act not
commenced on the
commencement day, continue to
apply.
155. Allocation of transitional proceedings to
Divisions of Tribunal
Unless the regulations provide otherwise,
the function of determining proceedings,
in relation to a relevant Act, that -
(a) are permitted or required to be
determined by the Tribunal under
this Part instead of a relevant
Board or Tribunal that has been
abolished under section 148; or
(b) are remitted by a court under this
Part to the Tribunal for
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reconsideration or
redetermination -
is allocated to the Division specified in
relation to the relevant Act under
Schedule 2 or Schedule 3.
156. Saving of orders of relevant Board or
Tribunal
An order made by a relevant Board or
Tribunal before the commencement day,
including an order that would have come
into effect on or after the commencement
day, is, subject to this Part, taken on and
from that day to be an order made, by the
Tribunal established by this Act, under
the provision, of the relevant Act, under
which the order was made, or the
provision of this Act that corresponds to
that provision, as the case may be.
157. Expiration of time periods
If, for any purpose, time had commenced
to run under a provision of a relevant Act
in relation to a relevant Board or
Tribunal before the commencement day,
the time expires for the corresponding
purpose under that Act (as amended by
this Act), or this Act, as the case may be,
at the time at which it would have
expired if the Board or Tribunal had not
been abolished under section 148.
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158. Savings of code of conduct and Mental
Health guidelines
(1) A code of conduct made under section 68
of this Act, as in force immediately
before the commencement day, is to be
taken, on and from the commencement
day, to have been made under section 94
on the commencement day.
(2) Any guidelines made and in effect under
section 169 of the Mental Health Act
2013 immediately before the
commencement day are to be taken, on
and from the commencement day, to be
Tribunal guidelines made under that
section on the commencement day.
159. Appointments and other matters to facilitate
establishment of Tribunal
(1) If a person was appointed, under
section 69(1) of this Act as in force
immediately before the commencement
day, to an office or other position under
this Act before that day -
(a) the appointment continues to
have effect according to its terms
after that day; and
(b) if the person was appointed as the
Registrar or a Deputy Registrar,
the requirements of section 53(4)
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continue not to apply in relation
to the appointment.
(2) A person who, under section 69(1) of this
Act as in force immediately before the
commencement day, was appointed as
the President is to be taken to be assigned
to be the Division Head of a Division of
the Tribunal under this Act until another
person is assigned to be the Division
Head of the Division of the Tribunal.
(3) The requirements of clause 2 of Part 2 of
Schedule 2, and of clause 2 of Part 2 of
Schedule 3, do not apply in relation to a
person who is a Division Head in
accordance with subsection (2).
160. General savings
(1) If anything done, initiated or commenced
under a relevant Act in relation to a
relevant Board or Tribunal before the
commencement day still has effect, or is
not completed, before that day, and the
thing could have been done, initiated or
commenced under the relevant Act (as
amended by this Act) or this Act, if this
Act had been in force when the thing was
done, initiated or commenced -
(a) the thing done continues to have
effect; or
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(b) the thing initiated or commenced
may be completed as if it had
been done, initiated or
commenced under the relevant
Act, as amended by this Act, or
this Act.
(2) Without limiting the generality of
subsection (1), information that was
obtained or provided under section 64 of
this Act as in force immediately before
the commencement day is taken to have
been lawfully obtained or provided, as
the case may be.
(3) This section applies subject to any
express provision of this Act in relation
to the matter to which this section
applies.
19. Schedule 1 amended (Relevant Acts)
Schedule 1 to the Principal Act is amended as
follows:
(a) by omitting item 11;
(b) by omitting item 13 and substituting the
following item:
13. The Gas Safety Act 2019.
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20. Schedule 2 amended (General Division)
Schedule 2 to the Principal Act is amended as
follows:
(a) by omitting the definition of Forestry
stream function or power from clause 1
of Part 1;
(b) by omitting the definition of Health
Practitioners stream function or power
from clause 1 of Part 1;
(c) by omitting paragraph (i) from clause
1(1) of Part 3;
(d) by omitting paragraph (k) from clause
1(1) of Part 3 and substituting the
following paragraph:
(k) the Gas Safety Act 2019;
(e) by omitting paragraph (za) from clause
1(1) of Part 3;
(f) by omitting Part 4 and substituting the
following Parts:
PART 4 - ANTI-DISCRIMINATION STREAM
1. Anti-Discrimination stream
There is a stream of the Division
to be known as the Anti-
Discrimination stream.
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2. Functions and powers allocated to
Anti-Discrimination stream
The functions and powers of the
Tribunal in relation to the Anti-
Discrimination Act 1998,
including functions and powers
conferred or imposed on the
Tribunal by regulations or
instruments made under that Act,
are allocated to the Anti-
Discrimination stream.
3. Composition of Tribunal in relation
to Anti-Discrimination stream
If proceedings relate to the
functions or powers of the
Tribunal allocated to the Anti-
Discrimination stream, the
Tribunal is not to be constituted,
in whole or in part, in relation to
the proceedings other than -
(a) by the President; or
(b) by one or more Deputy
Presidents assigned to the
Division; or
(c) by a legally qualified
member who is assigned
to the stream; or
(d) by -
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(i) the President, one
or more Deputy
Presidents
assigned to the
Division, or a
senior member, or
a legally qualified
member, who is
assigned to the
stream; and
(ii) one or more other
members, each of
whom is assigned
to the stream and
has experience
and expertise
relevant to the
matter to which
the proceedings
relate.
PART 5 - HEALTH PRACTITIONERS STREAM
1. Health Practitioners stream
There is a stream of the Division
to be known as the Health
Practitioners stream.
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2. Functions and powers allocated to
Health Practitioners stream
The functions and powers of the
Tribunal in relation to the
following Acts, including
functions and powers conferred
or imposed on the Tribunal by
regulations or instruments made
under those Acts, are allocated to
the Health Practitioners stream:
(a) the Health Practitioner
Regulation National Law
(Tasmania);
(b) the Health Practitioners
Tribunal Act 2010;
(c) the Pharmacy Control Act
2001.
3. Composition of Tribunal for health
practitioner matters
If proceedings relate to the
functions or powers of the
Tribunal allocated to the Health
Practitioners stream (other than in
relation to the Pharmacy Control
Act 2001), the Tribunal is not to
be constituted, in whole or in
part, in relation to the
proceedings, other than in
accordance with the requirements
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of the Health Practitioners
Tribunal Act 2010.
PART 6 - FORESTRY PRACTICES STREAM
1. Forestry Practices stream
There is a stream of the Division
to be known as the Forestry
Practices stream.
2. Functions and powers allocated to
Forestry Practices stream
The functions and powers of the
Tribunal in relation to the Forest
Practices Act 1985, including
functions and powers conferred
or imposed on the Tribunal by
regulations or instruments made
under that Act, are allocated to
the Forestry Practices stream.
3. Composition of Tribunal in relation
to Forestry Practices stream
(1) If proceedings relate to the
functions or powers of the
Tribunal allocated to the Forestry
Practices stream, the Tribunal is
not, unless subclause (2) applies,
to be constituted, in whole or in
part, in relation to the
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proceedings, other than by 3
members, of whom -
(a) one is the President, a
Deputy President assigned
to the Division or a
legally qualified member
who is assigned to the
stream; and
(b) one is a member who is
assigned to the stream and
who possesses a sound
and practical knowledge
of forestry, road
construction in forests and
harvesting of timber; and
(c) one is a member who -
(i) is assigned to the
stream; and
(ii) possesses tertiary
qualifications in
the sciences
appropriate to land
and forest
management and
has had substantial
practical
experience in
those sciences.
(2) If proceedings relate to an appeal
under section 25 of the Forest
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Practices Act 1985 and involve
any question relating to the
protection of threatened species
of flora or fauna or the protection
of threatened native vegetation
communities from clearance and
conversion, the Tribunal is not to
be constituted, in whole or in
part, in relation to the
proceedings unless it is
constituted by 3 members, of
whom -
(a) one is the President, a
Deputy President assigned
to the Division or a
legally qualified member
who is assigned to the
Forestry Practices stream;
and
(b) one is a member who -
(i) is assigned to the
Forestry Practices
stream; and
(ii) possesses a sound
knowledge of, and
has at least 5 years
practical
experience in,
agriculture and
forestry; and
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(iii) has nominated to
be a member in
response to a
notice by the
Minister,
circulating in 2
newspapers
published in, and
circulating
generally in the
State, calling for
expressions of
interest from
persons who seek
to be appointed as
a member of the
Tribunal; and
(iv) is approved by the
Minister; and
(c) one is a member who -
(i) is assigned to the
Forestry Practices
stream; and
(ii) possesses a sound
knowledge of, and
has at least 5 years
practical
experience in,
conservation
science; and
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(iii) is nominated for
membership by
the Minister
administering the
Nature
Conservation Act
2002.
PART 7 - PERSONAL COMPENSATION STREAM
1. Personal Compensation stream
There is a stream of the Division
to be known as the Personal
Compensation stream.
2. Functions and powers allocated to
Personal Compensation stream
The functions and powers of the
Tribunal in relation to the
following Acts, including
functions and powers conferred
or imposed on the Tribunal by
regulations or instruments made
under those Acts, are allocated to
the Personal Compensation
stream:
(a) the Asbestos-Related
Diseases (Occupational
Exposure) Compensation
Act 2011;
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(b) the Motor Accidents
(Liabilities and
Compensation) Act 1973;
(c) the Workers'
(Occupational Diseases)
Relief Fund Act 1954;
(d) the Workers
Rehabilitation and
Compensation Act 1988.
3. Composition of Tribunal in relation
to Personal Compensation stream
If proceedings relate to the
functions or powers of the
Tribunal allocated to the Personal
Compensation stream, the
Tribunal is not to be constituted,
in whole or in part, in relation to
the proceedings other than -
(a) by the President; or
(b) by one or more Deputy
Presidents assigned to the
Division; or
(c) by a legally qualified
member who is assigned
to the stream; or
(d) by -
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(i) the President, one
or more persons
who are Deputy
Presidents
assigned to the
Division or a
legally qualified
member who is
assigned to the
stream; and
(ii) one or more
members who are
assigned to the
stream.
4. Withdrawal of proceedings
(1) A party to proceedings in the
Personal Compensation stream
may withdraw the proceedings by
giving notice in writing to -
(a) the Tribunal; and
(b) each other party to the
proceedings.
(2) Section 88(2) does not apply in
relation to the withdrawal of
proceedings in the Personal
Compensation stream.
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PART 8 - RESOURCE AND PLANNING STREAM
1. Interpretation of Part 8
In this Part -
appeal means -
(a) an appeal to the
Tribunal under a
Resource and
Planning stream
Act; and
(b) an application,
under a Resource
and Planning
stream Act, for
review by the
Tribunal of a
reviewable
decision;
application means an
application to the
Tribunal, under a
Resource and Planning
stream Act, for the
Tribunal to exercise its
original jurisdiction and
includes any other means
by which a matter, under
a Resource and Planning
stream Act, is brought
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before the Tribunal in its
original jurisdiction;
Resource and Planning
stream Act means a
relevant Act in relation to
which powers or
functions are allocated to
the Resource and
Planning stream under
clause 3;
Resource and Planning
stream proceedings
means proceedings of the
Tribunal for the purposes
of a Resource and
Planning stream Act.
2. Resource and Planning stream
There is a stream of the Division
to be known as the Resource and
Planning stream.
3. Functions and powers allocated to
Resource and Planning stream
The functions and powers of the
Tribunal in relation to the
following Acts, including
functions and powers conferred
or imposed on the Tribunal by
regulations or instruments made
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under those Acts, are allocated to
the Resource and Planning
stream:
(a) the Agricultural and
Veterinary Chemicals
(Control of Use) Act
1995;
(b) the Biosecurity Act 2019;
(c) the Building Act 2016;
(d) the Environmental
Management and
Pollution Control Act
1994;
(e) the Fire Service Act 1979;
(g) the Gas Industry Act
2019;
(h) the Gas Safety Act 2019;
(i) the Historic Cultural
Heritage Act 1995;
(j) the Inland Fisheries Act
1995;
(k) the Land Use Planning
and Approvals Act 1993;
(l) the Launceston Flood
Risk Management Act
2015;
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(m) the Living Marine
Resources Management
Act 1995;
(n) the Local Government Act
1993;
(o) the Local Government
(Highways) Act 1982;
(p) the Marine Farming
Planning Act 1995;
(q) the National Parks and
Reserves Management Act
2002;
(r) the Neighbourhood
Disputes About Plants Act
2017;
(s) the Public Health Act
1997;
(u) the Strata Titles Act 1998;
(v) the Theatre Royal
Precinct Redevelopment
Act 2016;
(w) the Threatened Species
Protection Act 1995;
(x) the Urban Drainage Act
2013;
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(y) the Water and Sewerage
Industry Act 2008;
(z) the Water Management
Act 1999.
4. Composition of Tribunal in relation
to Resource and Planning stream
(1) If proceedings relate to the
functions or powers of the
Tribunal allocated to the
Resource and Planning stream,
the Tribunal is not to be
constituted, in whole or in part, in
relation to the proceedings by a
person or persons other than -
(a) a legally qualified
member who is assigned
to the stream; or
(b) a legally qualified
member who is assigned
to the stream and not
more than 4 other
members, each of whom
is assigned to the stream
and is either a legally
qualified member or has
expertise in the subject
matter to which the
proceedings relate, which
may include any of the
following matters:
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(i) planning resource
economics;
(ii) science;
(iii) engineering;
(iv) medicine;
(v) environmental
management;
(vi) industry process
operations;
(vii) building;
(viii) architecture;
(ix) building
surveying;
(x) plumbing;
(xi) local government;
(xii) disability access to
buildings;
(xiii) environmental and
public health.
(2) In determining for the purposes
of this clause the members who
are to constitute the Tribunal in
relation to proceedings in the
Resource and Planning stream,
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the President is to have regard
to -
(a) the nature of the issues
likely to be involved in
the proceedings; and
(b) the particular expertise of
each proposed member;
and
(c) the degree of public
importance or complexity
of the matters to which
the proceedings relate;
and
(d) the need for the
Tribunal's affairs to be
conducted expeditiously
and efficiently.
5. Tribunal to be part of State's
resource management and planning
system in relation to Resource and
Planning stream proceedings
The Tribunal is, in relation to
Resource and Planning stream
proceedings, part of the State's
resource management and
planning system, the objectives of
which are set out in Schedule 1 to
the Land Use Planning and
Approvals Act 1993.
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6. Institution of Resource and Planning
stream proceedings
(1) Unless otherwise required under a
Resource and Planning stream
Act, an appeal must be
instituted -
(a) in writing; and
(b) within 14 days after the
making of the decision
which is appealed against.
(2) The Tribunal may, on written
application by a person, extend
the time for the institution by the
person of an appeal.
(3) The Tribunal, when considering
whether to extend the time for
instituting an appeal under
section 61 of the Land Use
Planning and Approvals Act
1993, must take into account -
(a) the reason why the appeal
was not lodged within the
period specified in
subclause (1); and
(b) the time which has
elapsed since the end of
the period specified in
subclause (1) and whether
it would be reasonable to
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expect that the application
to extend the appeal could
have been lodged before
the date on which it was
lodged; and
(c) the extent and cost of any
work which has been
undertaken in accordance
with a permit, referred to
in the Land Use Planning
and Approvals Act 1993,
after the expiry of the
period specified in
subclause (1); and
(d) any other matter that it
considers appropriate.
(4) The time for instituting an appeal
may be extended even though the
time has ended.
(5) The Tribunal must cause written
notice of an appeal to be given to
the person who made the decision
which is appealed against.
(6) Section 88(2) does not apply in
relation to Resource and Planning
stream proceedings.
(7) If a party to an appeal withdraws
under section 88 the proceedings
in relation to the appeal, the
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Tribunal is to notify each other
party to the proceedings.
7. Parties to Resource and Planning
stream proceedings
(1) Subject to clause 9(5)(b), the
parties to proceedings in relation
to an appeal are -
(a) the appellant; and
(b) the person who made the
decision which is
appealed against; and
(c) the person, to whose
application the appeal
relates, or a person whose
initial action gave rise to
the decision which is
appealed against; and
(d) any other person who has
been made, by the Appeal
Tribunal on application
by the person under
subclause (3), a party to
the appeal; and
(e) any other person who is,
under a relevant Act, a
party to the appeal.
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(2) For the purposes of
subclause (1)(b), the Board of the
Environment Protection
Authority and a planning
authority are taken to be persons
who made the decision which is
appealed against, in the case of an
appeal against -
(a) a condition or restriction
required by the Board,
under section 25(5)(a) of
the Environmental
Management and
Pollution Control Act
1994, to be contained in a
permit granted by the
planning authority; or
(b) a direction by the Board,
under section 25(5)(b) or
27AC(2)(a) of that Act, to
the planning authority to
refuse to grant a permit.
(3) If an appeal has been instituted by
a person, any other person whose
interests are affected by the
decision which is appealed
against may, subject to
subclauses (4) and (5), apply in
writing to the Tribunal to be
made a party to the appeal and
the Tribunal may, by order, make
the person a party to the appeal.
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(4) The Tribunal may not, under
subclause (3), make a person a
party to an appeal against a
decision -
(a) in respect of the granting
of a permit under section
57 of the Land Use
Planning and Approvals
Act 1993 unless -
(i) the person made a
representation
under section
57(5) of that Act
in respect of the
application for the
permit; or
(ii) the Tribunal
considers that the
person has a
proper interest in
the subject matter
of the appeal and
that it is not
reasonable to
expect the person
to have made a
representation in
respect of the
application for the
permit; or
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(b) in respect of the granting
of a permit under section
58 of the Land Use
Planning and Approvals
Act 1993, unless the
Tribunal considers that
the person has a proper
interest in the subject
matter of the appeal.
(5) The Tribunal may not, under
subclause (3), make a person a
party to an appeal against a
decision to issue an environment
protection notice under section
27(6) of the Environmental
Management and Pollution
Control Act 1994 in respect of an
activity unless -
(a) the person made a
representation in respect
of the activity during the
assessment by the Board
of the Environment
Protection Authority of
the activity; or
(b) the Tribunal considers
that the person has a
proper interest in the
subject matter of the
appeal and that it is not
reasonable to expect the
person to have made a
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representation in respect
of the activity.
(6) If a person referred to in
subclause (4) or (5) has been
made a party to an appeal, the
person is not entitled to present
arguments at the hearing of the
appeal in respect of any matters
that are not related to the
conditions or restrictions -
(a) which are specified in a
permit or an environment
protection notice referred
to in subclause (4) or (5);
and
(b) which have been appealed
against by a person who
lodged an appeal under
section 61 of the Land
Use Planning and
Approvals Act 1993.
(7) Sections 95 and 96 and section 98
do not apply in relation to
Resource and Planning stream
proceedings in relation to an
appeal.
8. Representation
(1) Despite section 98(1)(c), a party
to Resource and Planning stream
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proceedings in relation to an
appeal or an application is
entitled, without the leave of the
Tribunal and despite the Tribunal
rules, to be represented by
another representative.
(2) Despite section 98, the Tribunal
may, in exceptional
circumstances, refuse to allow a
party to the appeal or an
application to be represented if
the Tribunal is satisfied that
another party to the appeal or the
application would be significantly
disadvantaged by that
representation.
9. Procedure in Resource and Planning
stream proceedings
(1) Subject to a relevant Act that
applies in relation to the appeal or
application, the Tribunal must
hear and determine the appeal or
application within 90 days after it
is instituted or within a further
period extended under
subclause (2).
(2) The Minister may, by notice in
writing given to the President,
extend the period of 90 days
referred to in subclause (1), if the
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Minister is of the opinion that the
interests of justice so require.
(3) The extension by the Minister
under subclause (2) of the period
of 90 days referred to in
subclause (1) is not necessary if
all parties agree in writing to the
extension of that period.
(4) Subject to any determination by
the Tribunal that evidence may be
given in private, the Appeal
Tribunal must ensure that every
party to an appeal, or an
application, before the Tribunal is
given a reasonable opportunity to
present the party's case and, in
particular, to -
(a) inspect any documents to
which the Tribunal
proposes to have regard in
reaching a decision in the
appeal or the application
and
(b) make submissions in
relation to the documents.
(5) If a party to proceedings in
relation to an appeal or an
application who has had
reasonable notice of the appeal or
the application fails either to
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appear at a compulsory
conference or an alternative
dispute resolution process in
relation to the appeal or at the
hearing of the appeal or the
application, the Tribunal may -
(a) if the only other party to
the appeal is the person
who made the decision -
dismiss the appeal or the
application; or
(b) direct that the person who
failed to appear is to cease
to be a party to the appeal
or the application; or
(c) make any other order as it
considers necessary.
(6) If a person appeals or makes an
application, or purports to appeal
or to make an application, to the
Tribunal and it appears to the
Tribunal that -
(a) a failure to comply with a
requirement of this Act or
of another Act or law
affects the appeal or
application or purported
appeal or application, or
decision or purported
decision, against which
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the appeal or application
or purported appeal or
application has been
brought; and
(b) it would not be unjust or
inequitable to exercise the
powers conferred by this
subsection -
the Tribunal may excuse the
failure by ordering that, subject to
the conditions determined by the
Tribunal, the requirement be
dispensed with to the necessary
extent.
(7) If a person appeals, or makes an
application, to the Tribunal and it
appears to the Tribunal that -
(a) the appeal or application
relates to an application
(the relevant application)
made, by one party to the
proceedings in relation to
the appeal or application,
to another party to the
proceedings; and
(b) the appeal or application
could be resolved in a
manner that is fair to all
parties if certain
modifications to the
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relevant application were
made; and
(c) it would be conducive to
the expeditious
administration of justice if
the powers conferred by
this subsection were
exercised -
the Tribunal may, by order,
amend the relevant application
accordingly.
(8) In addition to its other powers
under this Act to dismiss an
appeal or application, the
Tribunal may dismiss an appeal
or application if the appellant or
applicant fails to comply with its
directions.
10. Determination of appeal and
application
(1) The Tribunal must notify -
(a) each party to an appeal of
the Tribunal's decision
under section 78 in
relation to the appeal, as
soon as practicable after
making the decision; and
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(b) each party to an
application of the
Tribunal's decision under
section 73 in relation to
the application, as soon as
practicable after making
the decision.
(2) A decision of the Tribunal in
relation to an appeal or
application comes into effect at
the expiration of the period of 10
days after the day on which the
decision is made or, if a later day
is specified in the decision, that
day.
(3) The Tribunal may amend its
decision on an appeal or
application if it is satisfied that
the amendment -
(a) does not change the effect
of any condition required
by the Tribunal; and
(b) will not cause an increase
in detriment to any
person.
(4) The Tribunal's decision in
relation to an appeal must be
given effect to by the person who
is responsible for giving effect to
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the decision that gave rise to the
appeal.
11. Reasons to be given
(1) The Tribunal must give written
reasons for its decision in relation
to an appeal or application.
(2) The reasons must include its
findings on material questions of
fact and a reference to the
evidence or other material on
which those findings were based.
(3) The Tribunal must cause a
written copy of its reasons to be
given to each party to the appeal
or application.
12. Costs
(1) Subject to this clause, each party
to proceedings in relation to an
appeal or application is to pay its
own costs.
(2) The Tribunal may, under this
clause, order a party to
proceedings in relation to an
appeal or application to pay all or
part of the costs of another party
to the proceedings if the Tribunal
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is satisfied that it is fair and
reasonable to do so.
(3) For the purposes of subclause (2),
the Tribunal may take into
account any of the following
matters:
(a) whether the proceedings
appear to the Tribunal to
have been instituted
merely to delay or
obstruct;
(b) whether in the Tribunal's
opinion a party has raised
frivolous or vexatious
issues;
(c) the relative merits of the
claims made by each of
the parties;
(d) whether in the Tribunal's
opinion a party has
unnecessarily or
unreasonably prolonged
the proceedings or
increased the costs of
them;
(e) whether a party has failed,
without reasonable
excuse, to comply with a
direction or order of the
Tribunal;
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(f) whether a party has failed
to comply with any
relevant law or planning
scheme, within the
meaning of the Land Use
Planning and Approvals
Act 1993;
(g) the nature, complexity
and outcome of the
proceedings;
(h) the capacity of the parties
to meet an order for costs;
(i) any other matter that the
Tribunal considers
relevant.
(4) If the Tribunal makes an order for
costs under this clause it -
(a) is to specify the time
within which those costs
are to be paid; and
(b) may, by a further order,
extend the time if it
considers it reasonable in
the circumstances.
(5) If the Tribunal makes an order for
costs under this clause before the
end of any proceedings, it may
require that the order be complied
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with before it continues with the
proceedings.
(6) An order for costs under this
clause may be registered in a
court having jurisdiction for the
recovery of debts of the amount
ordered to be paid by or under the
order.
(7) Proceedings for the enforcement
of an order for costs under this
clause may be taken as if the
order were a judgment of the
court in which the order is
registered.
(8) Division 10 of Part 8 of this Act
and section 126(2) do not apply
in relation to an appeal or
application.
13. Refusal to answer question or
produce document
(1) Despite sections 105 and 106, a
person is not excused from
answering a question or
producing a document in
Resource and Planning stream
proceedings on the ground that
the answer to the question or the
production of the document might
tend to incriminate the person.
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(2) If a person claims, before
answering a question or
producing a document in
Resource and Planning stream
proceedings, that the answer to
the question or the production of
the document might tend to
incriminate the person, the
answer or document is not
admissible in evidence against the
person in criminal proceedings
other than proceedings under
section 104(4)(e), or in other
proceedings, in respect of the
falsity of the answer or document.
(3) A member, or a member of the
staff of the Tribunal, is not
required to give evidence to a
court, tribunal or person having
power to require the production
of documents or the answering of
questions, if the giving of the
evidence was in relation to a
hearing in Resource and Planning
stream proceedings that were
conducted in private in
accordance with a direction under
this Act or a relevant Act.
21. Schedule 3 amended (Protective Division)
Schedule 3 to the Principal Act is amended as
follows:
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(a) by inserting the following paragraph
before paragraph (a) in clause 1(1) of
Part 3:
(aa) the Corrections Act 1997;
(b) by omitting Part 4 and substituting the
following Parts:
PART 4 - GUARDIANSHIP STREAM
1. Interpretation of Part 4
In this Part -
administration order has the
same meaning as in the
Guardianship and
Administration Act 1995;
administrator has the same
meaning as in the
Guardianship and
Administration Act 1995;
government department means
a Government department
within the meaning of the
State Service Act 2000;
guardian has the same
meaning as in the
Guardianship and
Administration Act 1995;
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guardianship order has the
same meaning as in the
Guardianship and
Administration Act 1995;
Guardianship stream Act
means a relevant Act in
relation to which powers
or functions are allocated
under clause 3 in relation
to the Guardianship
stream;
Guardianship stream
proceedings means
proceedings of the
Tribunal for the purposes
of a Guardianship stream
Act;
hearing means a hearing in
Guardianship stream
proceedings;
medical or dental treatment
has the same meaning as
in the Guardianship and
Administration Act 1995;
Public Guardian has the same
meaning as in the
Guardianship and
Administration Act 1995;
restrictive intervention has the
same meaning as in the
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Disability Services Act
2011;
service provider includes a
financial institution, or
person, with whom a
proposed represented
person has deposited
money or on whose
account money has been
deposited;
State authority means a body
or authority, whether
incorporated or not, which
is established or
constituted by or under an
Act or under the royal
prerogative, where the
body or authority or its
governing authority,
wholly or partly
comprises a person or
persons appointed by the
Governor, a Minister or
another such body or
authority.
2. Guardianship stream
There is a stream of the Division
to be known as the Guardianship
stream.
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3. Functions and powers allocated to
Guardianship streams
The functions and powers of the
Tribunal in relation to the
following Acts, including
functions and powers conferred
or imposed on the Tribunal by
regulations or instruments made
under any of the following Acts,
are allocated to the Guardianship
stream:
(a) the Disability Services Act
2011;
(b) the Guardianship and
Administration Act 1995;
(c) the Powers of Attorney
Act 2000;
(d) the Wills Act 2008.
4. Composition of Tribunal in relation
to stream
If proceedings relate to the
functions or powers of the
Tribunal allocated to the
Guardianship stream, the
Tribunal is not to be constituted,
in whole or in part, in relation to
the proceedings other than -
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(a) by the President; or
(b) by one or more Deputy
Presidents assigned to the
Division; or
(c) by a legally qualified
member who is assigned
to the stream; or
(d) by -
(i) the President, one
or more Deputy
Presidents
assigned to the
Division, or a
legally qualified
member who is
assigned to the
stream; and
(ii) one or more
members who are
assigned to the
stream.
5. Hearings in relation to Guardianship
stream proceedings
(1) The Tribunal, within 45 days
after the day on which an
application is received by the
Tribunal under a provision of a
Guardianship stream Act, must, if
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that Act requires a hearing under
this Act to be held in relation to
such an application, commence
the hearing of the application.
(2) The Tribunal must, as soon as
practicable after receiving an
application in relation to which,
under a provision of a
Guardianship stream Act, a
hearing is required to be held, and
in any case not less than 10 days
before a hearing by the Tribunal
in relation to an application under
a Guardianship stream Act, give
notice of the hearing to -
(a) the applicant; and
(b) the person in respect of
whom the hearing is to be
held; and
(c) the Public Guardian; and
(d) if the person has a
guardian, the guardian;
and
(e) if the person has an
administrator in respect of
his or her estate, the
administrator; and
(f) if the matter relates to -
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(i) the provision of
medical or dental
treatment - the
registered
practitioner,
within the
meaning of the
Guardianship and
Administration Act
1995, proposing to
carry out the
treatment; or
(ii) a restrictive
intervention - the
disability services
provider, or
funded private
person, each
within the
meaning of the
Disability Services
Act 2011, to
whom the
approval to which
the application
relates was
granted; and
(g) any other person who the
Tribunal is satisfied has a
proper interest in the
matter.
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(3) A notice under subclause (2) in
relation to a hearing is to
specify -
(a) the time and place of the
hearing; and
(b) the nature of the
proceedings; and
(c) the kinds of orders that
may be made by the
Tribunal in relation to the
Guardianship stream
proceedings to which the
hearing relates; and
(d) in the case of a notice
given under
subclause (2)(a) or (b),
the entitlement of that
person to representation
before the Tribunal.
(4) A notice that is required under
subclause (2) to be given to a
person is to be given by sending
the notice by post to that person
at the person's usual or last
known place of residence or
business or by another method
that the Tribunal considers
appropriate.
(5) The Tribunal is not obliged to
give notice of a hearing -
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(a) to a person whose
whereabouts cannot after
reasonable inquiries be
ascertained; or
(b) if the matter relates to -
(i) the provision of
medical or dental
treatment; or
(ii) a restrictive
intervention -
and the Tribunal
considers it proper to
dispense with notice of
the hearing by reason of
urgency.
(6) A hearing or determination of the
Tribunal in Guardianship stream
proceedings is not invalidated or
affected by reason only of -
(a) the hearing or
determination not being
held or made within the
time required by this Act;
or
(b) a failure to give notice to
a person other than the
person in respect of whom
the hearing was held.
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6. Dismissal, &c., of application
(1) Without limiting the application
of section 89 or 90 to the
Tribunal, the Tribunal may
dismiss or strike out an
application under a Guardianship
stream Act at any stage of
proceedings in relation to the
application if the Tribunal is of
the opinion that -
(a) the subject matter has
already been dealt with by
the Tribunal; and
(b) there has been no
subsequent change to any
material fact.
(2) If the Tribunal, under
subclause (1) or section 89 or 90,
dismisses or strikes out an
application under a Guardianship
stream Act, the applicant may
apply for a review of that
decision by the Tribunal.
(3) An application for a review under
subclause (2) must be -
(a) in writing; and
(b) lodged within 14 days
after the applicant is
notified of the decision to
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reject the initial
application.
(4) A decision of the Tribunal made
pursuant to an application under
subclause (2) is not reviewable
under this section.
(5) The Tribunal, as constituted for
the purposes of a review under
subclause (2), is to be constituted
by 3 members of the Tribunal -
(a) each of whom is assigned
to the Guardianship
stream; and
(b) none of whom was
involved in the decision to
reject the initial
application.
7. Appearance at hearing in
Guardianship proceedings
(1) At a hearing of the Tribunal in
Guardianship stream proceedings,
the applicant, the Public Guardian
and the person in respect of
whom the hearing is held may -
(a) appear before the
Tribunal in person and be
heard; or
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(b) be represented before the
Tribunal by any person
authorised to that effect
by the applicant, the
Public Guardian, or the
person in respect of whom
the hearing is held,
respectively, irrespective
of the requirements of
section 98(1)(c) that the
representation occur with
the leave of the Tribunal
or be subject to the
Tribunal rules.
(2) At a hearing of the Tribunal in
Guardianship stream
proceedings -
(a) a person not referred to in
subclause (1) who is
given notice of the
hearing may -
(i) appear before the
Tribunal in person
and be heard; or
(ii) by leave of the
Tribunal, be
represented before
the Tribunal by
any person
authorised to that
effect by the first-
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mentioned person;
and
(b) any other person who
wishes to be heard and
whom the Tribunal agrees
to hear may appear before
the Tribunal in person and
be heard.
(3) If, in any hearing in Guardianship
stream proceedings, the person in
respect of whom the hearing is
held is not represented before the
Tribunal, the Tribunal may
appoint a person to represent that
person.
(4) Section 98 applies, subject to
subclause (1)(b), in relation to a
hearing in Guardianship stream
proceedings.
8. Interim order on adjournment
(1) If the Tribunal adjourns a hearing
of an application in Guardianship
stream proceedings and it
considers that there may be
grounds for making, in respect of
a person, a guardianship order or
administration order or a further
guardianship order or further
administration order, the Tribunal
may -
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(a) make an interim order
appointing, as the case
may be, the Public
Guardian as the person's
guardian or the Public
Trustee as the
administrator of the
person's estate; and
(b) make or give any related
orders or directions that it
considers appropriate in
the circumstances.
(2) An interim order has effect for
the period of the adjournment and
any subsequent adjournment.
(3) This clause does not prevent the
Tribunal from varying or
revoking an interim order or from
making a further interim order on
any subsequent adjournment.
9. Statement of reasons
(1) A party to Guardianship stream
proceedings, or a person
aggrieved by a determination of
the Tribunal in Guardianship
stream proceedings, may, by
notice in writing given to the
Tribunal within 21 days after the
making of the determination,
request the Tribunal to give to the
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party or person a statement in
writing of reasons for the
determination.
(2) The Tribunal must, as soon as
practicable but in any case within
21 days after receiving a request
under subclause (1) from a party
or person, prepare and give a
statement of reasons to the party
or person.
10. Permission to publish report about
Guardianship stream proceedings
(1) If the Tribunal considers that it is
in the public interest to do so, the
Tribunal may determine that a
person may publish, or cause to
be published in accordance with
its determination, a report of any
Guardianship stream proceedings.
(2) A person does not commit an
offence against section 123(1) by
publishing, or causing to be
published, in accordance with a
determination under subclause (1)
a report of any Guardianship
stream proceedings.
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PART 5 - MENTAL HEALTH STREAM
1. Mental Health stream
There is a stream of the Division
to be known as the Mental Health
stream.
2. Functions and powers allocated to
Mental Health stream
The functions and powers of the
Tribunal in relation to the
following Acts, including
functions and powers conferred
or imposed on the Tribunal by
regulations or instruments made
under any of the following Acts,
are allocated to the Mental Health
stream:
(a) the Corrections Act 1997;
(b) the Criminal Justice
(Mental Impairment) Act
1999;
(c) the Mental Health Act
2013.
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3. Composition of Tribunal in relation
to Mental Health stream
(1) Subject to subclause (2), if
proceedings relate to the
functions or powers of the
Tribunal allocated to the Mental
Health stream, the Tribunal is not
to be constituted, in whole or in
part, in relation to the
proceedings other than -
(a) by the President; or
(b) by one or more Deputy
Presidents assigned to the
Division; or
(c) by a legally qualified
member who is assigned
to the stream; or
(d) by -
(i) the President, one
or more Deputy
Presidents
assigned to the
Division or a
legally qualified
member who is
assigned to the
stream; and
(ii) one or more
members who are
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assigned to the
stream.
(2) If proceedings relate to the
functions or powers of the
Tribunal allocated to the Mental
Health stream and the Tribunal is
to be constituted by 3 or more
members -
(a) one of the members is to
be a psychiatrist and one
of the members is to be a
legally qualified member
who is assigned to the
stream; and
(b) the person presiding is to
be -
(i) the President; or
(ii) a Deputy
President assigned
to the Division; or
(iii) a legally qualified
member who is
assigned to the
stream or, if more
than one of the
members
constituting the
Tribunal are
legally qualified
members, the
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legally qualified
member
nominated by the
President.
22. Repeal of Act
This Act is repealed on the first anniversary of
the day on which it commenced.