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ACT CIVIL AND ADMINISTRATIVE TRIBUNAL (TRANSITIONAL PROVISIONS) REGULATION 2009 (NO 2 OF 2009)
2009
THE LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
ACT CIVIL AND
ADMINISTRATIVE TRIBUNAL (TRANSITIONAL PROVISIONS) REGULATION 2009
SL2009-2
EXPLANATORY
STATEMENT
Circulated by the authority of
Simon Corbell MLA
Attorney
General
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation
2009
The intention of this regulation is to provide for the transfer of
matters in replaced jurisdictions to the ACT Civil and Administrative
Tribunal (ACAT).
In general, any matter which has not commenced
hearing will transfer to the ACAT. Matters before a replaced jurisdiction that
have commenced a hearing, can continue to be heard in the replaced jurisdiction
for a period of 6 months, and provisions in the regulation preserve the law to
that effect. After that time, any incomplete matters are referred to the ACAT
for future action. Provisions are included to allow the ACAT to make orders or
rules in cases of uncertainty to allow proceedings to continue.
The
proposed regulation also modifies the operation of the law to permit the
appointment of more than one registrar, in accordance with the wishes of the
ACAT, to remove unnecessary provisions and to clarify the role of the Registrar
under the Construction Occupations (Licensing) Act 2004 and the ACAT.
These provisions will be re-enacted as substantive amendments in a future
portfolio bill.
In these regulation notes “the commencement date” means the
day section 6 of the ACT Civil and Administrative Tribunal Act 2008
commences and “ACAT” means the ACT Civil and Administrative
Tribunal.
Part 1 Preliminary
Regulation 2 – Commencement – provides that
the regulation commences on the day section 6 of the ACT Civil and
Administrative Tribunal Act 2008 commences.
Regulation 3
– Dictionary – provides for a dictionary for the
regulation.
Regulation 4 – Notes –
provides that notes in the regulation have explanatory effect only.
Regulation 5 – Expiry – provides that this
regulation expires on the same date that the power to make the regulation
expires (s 301 of the ACT Civil and Administrative Tribunal Act 2008).
Part 2 Administrative Appeals Tribunal
(AAT)
Regulation 6 – Application to AAT for
review of decision—no hearing
This regulation provides that where
an application had been made to the AAT, but it had not commenced hearing the
matter before the specified date (being the date of the retirement of the AAT
President), the application is taken to have been an application to the ACAT.
If the AAT had made an order about the proceedings (for example, requiring the
parties to produce certain evidence) the order is taken to have been an order by
the ACAT. Between the commencement date and the specified date, the old law
continues to apply (that is, the AAT will continue to hear the
matter).
Regulation 7 – Application to AAT for review of
decision—hearing
This regulation provides that if the AAT had
commenced to hear a matter, but the hearing was incomplete prior to the
commencement date, the old law continues to apply (that is, the AAT will
continue to hear the matter).
Regulation 8 – Referral
to AAT under Ombudsman Act
This regulation provides that if a request for
an advisory opinion was made by the Ombudsman and an opinion had not been given
prior to the specified date (being the date of the retirement of the AAT
President), the request will be taken to be a request to the ACAT.
Part 3 Consumer and Trader Tribunal
Regulation 9
– Application to tribunal for review of decision—no hearing
This regulation provides that where an application had been made to the
Consumer and Trader Tribunal for review of a decision, but it had not commenced
hearing the matter before the commencement day, the application is taken to have
been an application to the ACAT. If the Consumer and Trader Tribunal had made
an order about the proceedings (for example, requiring the parties to produce
certain evidence) the order is taken to have been an order by the
ACAT.
Regulation 10 – Application to tribunal for review of
decision—hearing
This regulation provides that if the Consumer and
Trader Tribunal had commenced to hear a matter concerning the review of a
decision, but the hearing was incomplete, the old law continues to apply (that
is, the Consumer and Trader Tribunal will continue to hear the matter).
Regulation 11 – Application to tribunal for disciplinary
action—no hearing
This regulation provides that where an
application had been made to the Consumer and Trader Tribunal for disciplinary
action, but it had not commenced hearing the matter before the commencement day,
the application is taken to have been an application to the ACAT. If the
Consumer and Trader Tribunal had made an order about the proceedings (for
example, requiring the parties to produce certain evidence) the order is taken
to have been an order by the ACAT.
Regulation 12 – Application
to tribunal for disciplinary action—hearing
This regulation
provides that if the Consumer and Trader Tribunal had commenced to hear a
disciplinary action, but the hearing was incomplete, the old law continues to
apply (that is, the Consumer and Trader Tribunal will continue to hear the
matter).
Part 4 Credit Tribunal
Regulation
13 – Application to credit tribunal—no hearing
This
regulation provides that where an application had been made to the Credit
Tribunal for review of a decision, but it had not commenced hearing the matter
before the commencement day, the application is taken to have been an
application to the ACAT. If the Credit Tribunal had made an order about the
proceedings (for example, requiring the parties to produce certain evidence) the
order is taken to have been an order by the ACAT.
Regulation 14
– Application to credit tribunal—hearing
This regulation
provides that if the Credit Tribunal had commenced to hear a matter concerning
the review of a decision, but the hearing was incomplete, the old law continues
to apply (that is, the Credit Tribunal will continue to hear the matter).
Regulation 15 – Application to credit tribunal for
disciplinary action—no hearing
This regulation provides that where
an application had been made to the Credit Tribunal for disciplinary action, but
it had not commenced hearing the matter before the commencement day, the
application is taken to have been an application to the ACAT. If the Credit
Tribunal had made an order about the proceedings (for example, requiring the
parties to produce certain evidence) the order is taken to have been an order by
the ACAT.
Regulation 16 – Application to credit tribunal for
disciplinary action—hearing
This regulation provides that if the
Credit Tribunal had commenced to hear a disciplinary action, but the hearing was
incomplete, the old law continues to apply (that is, the Credit Tribunal will
continue to hear the matter).
Part 5 Discrimination
Tribunal
Regulation 17 – Application to discrimination
tribunal—no hearing
This regulation provides that where an
application had been made to the Discrimination Tribunal, but it had not
commenced hearing the matter before the commencement day, the application is
taken to have been an application to the ACAT. If the Discrimination Tribunal
had made an order about the proceedings (for example, requiring the parties to
produce certain evidence) the order is taken to have been an order by the
ACAT.
Regulation 18 – Application to discrimination
tribunal—hearing
This regulation provides that if the
Discrimination Tribunal had commenced to hear a matter, but the hearing was
incomplete, the old law continues to apply (that is, the Discrimination Tribunal
will continue to hear the matter).
Part 6 Energy and Water
Consumer Council
Regulation 19 – Complaint to
council—no consideration
This regulation provides that where a
complaint had been made to the Energy and Water Consumer Council, but it had not
commenced considering the matter before the commencement day, the complaint is
taken to have been an application to the ACAT. If the Energy and Water Consumer
Council had made an interim direction about the proceedings (for example,
requiring a utility to take no further action to disconnect a service) the order
is taken to have been an order by the ACAT.
Regulation 20 –
Complaint to council—consideration
This regulation provides that if
the Energy and Water Consumer Council had commenced to consider a matter, but
the consideration was incomplete, the old law continues to apply (that is, the
Energy and Water Consumer Council will continue to consider the matter).
Part 7 Guardianship Tribunal
Regulation 21
– Appointment of guardian—no appointment
If the court gives a
direction under the Crimes Act 1900, section 316 (Special hearing) to the
Guardianship Tribunal to appoint a guardian but the tribunal had not made the
appointment before the commencement day, the direction is taken on and after the
commencement day to be a direction to the ACAT.
Regulation 22 –
Decision to review appointment of guardian—no inquiry
If before the
commencement day, the Guardianship Tribunal decided on its own initiative to
hold an inquiry under the Guardianship and Management of
Property
Act 1991, section 19 but had not begun the inquiry, the decision is taken on
and after the commencement day to be a decision by the ACAT to hold a hearing
under the Guardianship and Management of Property Act 1991,
section
19.
Regulation 23 – Decision to review appointment of
guardian—inquiry
If before the commencement day, the Guardianship
Tribunal decided on its own initiative to hold an inquiry under the
Guardianship and Management of
Property Act 1991, section 19
and had begun the inquiry, the old law continues to apply (that is, the
Guardianship Tribunal will continue to hear the matter).
Regulation 24
– Application to guardianship tribunal—no inquiry
This
regulation provides that where an application had been made to the Guardianship
Tribunal, but it had not commenced an inquiry before the commencement day, the
application is taken to have been an application to the ACAT. If the
Guardianship Tribunal had made an order about the proceedings (for example,
requiring the parties to produce certain evidence) the order is taken to have
been an order by the ACAT.
Regulation 25 – Application to
guardianship tribunal—inquiry
This regulation provides that if the
Guardianship Tribunal had commenced to hear a matter, but the hearing was
incomplete, the old law continues to apply (that is, the Guardianship Tribunal
will continue to hear the matter).
Regulation 26 –
Guardianship tribunal orders
This regulation applies if the Guardianship
Tribunal makes an order determining an application or inquiry in a matter and
makes a further order (adjourning the matter or that the matter be reviewed at a
later time). An order adjourning the matter is taken on and after the
commencement day to be an order of the ACAT adjourning the matter to the ACAT.
An order that a matter be reviewed at a later time is taken on and after the
commencement day to be an order of the ACAT that the matter be reviewed by the
ACAT at a later time.
Part 8 Health Professions
Tribunal
Regulation 27 – Application to health
professions tribunal—no hearing
This regulation provides that where
an application had been made to the Health Professions Tribunal, but it had not
commenced a hearing before the commencement day, the application is taken to
have been an application to the ACAT. If the Health Professions Tribunal had
made an order about the proceedings (for example, requiring the parties to
produce certain evidence) the order is taken to have been an order by the
ACAT.
Regulation 28 – Application to health professions
tribunal—hearing
This regulation provides that if the Health
Professions Tribunal had commenced to hear a matter, but the hearing was
incomplete, the old law continues to apply (that is, the Health Professions
Tribunal will continue to hear the matter).
Regulation 29 –
Referral of application to health professions board
Referrals by the
Health Professions Tribunal to a Health Professions Board which are incomplete
are taken to be referrals by the ACAT.
Part 9 Legal
Practitioners Disciplinary Tribunal
Regulation 30 –
Application to legal practitioners disciplinary tribunal—no
hearing
This regulation provides that where an application had been made
to the Legal Practitioners Disciplinary Tribunal, but it had not commenced a
hearing before the commencement day, the application is taken to have been an
application to the ACAT. If the Legal Practitioners Disciplinary Tribunal had
made an order about the proceedings (for example, requiring the parties to
produce certain evidence) the order is taken to have been an order by the
ACAT.
Regulation 31 – Application to legal practitioners
disciplinary tribunal—hearing
This regulation provides that if the
Legal Practitioners Disciplinary Tribunal had commenced to hear a matter, but
the hearing was incomplete, the old law continues to apply (that is, the Legal
Practitioners Disciplinary Tribunal will continue to hear the matter).
Regulation 32 – Appeal to legal practitioners disciplinary
tribunal—no hearing
This regulation provides that where an appeal
had been made to the Legal Practitioners Disciplinary Tribunal, but it had not
commenced an inquiry before the commencement day, the application is taken to
have been an application to the ACAT. If the Legal Practitioners Disciplinary
Tribunal had made an order about the proceedings (for example, requiring the
parties to produce certain evidence) the order is taken to have been an order by
the ACAT.
Regulation 33 – Appeal to legal practitioners
disciplinary tribunal—hearing
This regulation provides that if the
Legal Practitioners Disciplinary Tribunal had commenced to hear an appeal, but
the hearing was incomplete, the old law continues to apply (that is, the Legal
Practitioners Disciplinary Tribunal will continue to hear the matter).
Regulation 34 – Legal practitioners disciplinary tribunal
decision
This regulation applies if, before the commencement day, the
Legal Practitioners Disciplinary Tribunal made an order amending, suspending or
cancelling a local practicing certificate but, on commencement, the relevant
council had not given the practitioner a written notice under the Legal
Profession Act 2006, section 71 (2). After commencement, the order is taken
to be an order of the ACAT.
Regulation 35 – Application for
registration as foreign lawyer
This regulation applies if, at
commencement, an application from a person for registration as a foreign lawyer
is being considered but the applicant contravenes an order of the Legal
Practitioners Disciplinary Tribunal. After commencement, the contravention is
taken to be a contravention of an ACAT order.
Regulation 36 –
Failure to comply with disciplinary order
This regulation applies if,
before commencement, a person had contravened an order of the Legal
Practitioners Disciplinary Tribunal. After commencement, the contravention is
taken to be a contravention of an ACAT order.
Part 10 Liquor
Licensing Board
Regulation 37 – Application in relation
to licence
This regulation provides that where an application for the
grant of a licence had been made to the Registrar of the Liquor Licensing Board,
but the Registrar had not decided the application before the commencement day,
the application is taken to have been an application to the Commissioner for
Fair Trading.
Regulation 38 – Complaint to
registrar—no decision about action
This regulation provides that
where the Registrar of the Liquor Licensing Board had not decided what action to
take on a complaint prior to commencement, the complaint is taken on
commencement to be a complaint to the Commissioner for Fair
Trading.
Regulation 39 – Application in relation to licensed
premises
This regulation provides that where an application for
alteration or closure of licensed premises had been made to the Registrar of the
Liquor Licensing Board, but the Registrar had not decided the application before
the commencement day, the application is taken to have been an application to
the Commissioner for Fair Trading.
Regulation 40 –
Application for permit
This regulation provides that where an application
for a permit had been made to the Registrar of the Liquor Licensing Board, but
the Registrar had not decided the application before the commencement day, the
application is taken to have been an application to the Commissioner for Fair
Trading.
Regulation 41 – Referral to liquor licensing
board—no consideration
This regulation provides that where the
Registrar of the Liquor Licensing Board had referred a matter to the Liquor
Licensing Board (other than an application), but the Board had not begun
considering the matter, the referral is taken to be a referral to the
ACAT.
Regulation 42 – Referral to liquor licensing
board—consideration
This regulation provides that where the
Registrar of the Liquor Licensing Board had referred a matter to the Liquor
Licensing Board (other than an application), and the Board had begun considering
the matter, the old law will continue to apply (that is, the Board will continue
considering the matter).
Part 11 Mental Health
Tribunal
Regulation 43 – Application or referral to
mental health tribunal—no inquiry
This regulation provides that
where an application or referral had been made to the Mental Health Tribunal,
but it had not started an inquiry before the commencement day, the application
is taken to have been an application to the ACAT. If the Mental Health Tribunal
had made an order about the proceedings (for example, requiring an assessment)
the order is taken to have been an order by the ACAT.
Regulation 44
– Application or referral to mental health
tribunal—inquiry
This regulation provides that if the Mental Health
Tribunal had begun an inquiry into an application or referral, but this was
incomplete, the old law continues to apply (that is, the Mental Health Tribunal
will continue the inquiry).
Regulation 45 – Application to
mental health tribunal for review—no hearing
This regulation
provides that where an application to review a decision of a doctor or mental
health officer had been made to the Mental Health Tribunal, but it had not
commencing a hearing before the commencement day, the application is taken to
have been an application to the ACAT. If the Mental Health Tribunal had made an
order about the proceedings the order is taken to have been an order by the
ACAT.
Regulation 46 – Application to mental health tribunal
for review—hearing
This regulation provides that if the Mental
Health Tribunal had begun a hearing into an application to review a decision of
a doctor or mental health officer, but this was incomplete, the old law
continues to apply (that is, the Mental Health Tribunal will continue the
hearing).
Part 12 Residential Tenancies
Tribunal
Regulation 47 – Application to residential
tenancies tribunal—no hearing
This regulation provides that where
an application had been made to the Residential Tenancies Tribunal, but it had
not commenced a hearing before the commencement day, the application is taken to
have been an application to the ACAT. If the Residential Tenancies Tribunal had
made an order about the proceedings (for example, requiring the parties to
produce certain evidence) the order is taken to have been an order by the
ACAT.
Regulation 48 – Application to residential tenancies
tribunal—hearing
This regulation provides that if the Residential
Tenancies Tribunal had commenced to hear a matter, but the hearing was
incomplete, the old law continues to apply (that is, the Residential Tenancies
Tribunal will continue to hear the matter).
Regulation 49 –
Residential tenancy tribunal orders
This regulation applies if the
Residential Tenancies Tribunal had made a termination and possession order or an
order stating an amount of money is to be paid from an amount of bond, but the
order is contravened. After commencement, the order is taken to have been an
order by the ACAT
Part 13 Small Claims
Court
Regulation 50 – Application to court—no
hearing
This regulation provides that where an application had been made
to the Small Claims Court, but it had not commenced a hearing before the
commencement day, the application is taken to have been an application to the
ACAT. If the Small Claims Court had made an order about the proceedings (for
example, requiring the parties to produce certain evidence) the order is taken
to have been an order by the ACAT.
Regulation 51 – Application
to court—hearing
This regulation provides that if the Small Claims
Court had commenced to hear a matter, but the hearing was incomplete, the old
law continues to apply (that is, the Small Claims Court will continue to hear
the matter).
Regulation 52 – Appeals from Small Claims
Court—no hearing
This regulation provides that where an appeal had
been made from the Small Claims Court to the Supreme Court, but the appeal had
not been decided before the commencement day, the old law
applies.
Part 14 Disciplinary matters—other
tribunals
Regulation 53 – Definitions—pt 14
– makes formal provisions for this Part. In particular,
“previous tribunal” means various bodies responsible for
disciplining members of professions prior to commencement:
(a) the Architects
Board established under the Architects Act 2004;
(b) the Chief
Surveyor established under the Surveyors Act 2007;
(c) the
Commissioner for Fair Trading;
(d) the Construction Occupations
Registrar;
(e) the Registrar of Motor Vehicle Dealers established under the
Sale of Motor Vehicles Act 1977;
(f) the Registrar of Tobacco
established under the Tobacco Act 1927.
Regulation 54 –
Disciplinary notice—no action
This regulation applies where a
previous tribunal had given a person a disciplinary notice but had not commenced
considering or inquiring into the matter before the commencement day. On
commencement, the notice is taken to have been an application to the ACAT for an
occupational discipline order.
Regulation 55 – Disciplinary
notice—consideration or inquiry started
This regulation provides
that where a previous tribunal had given a person a disciplinary notice and had
commenced considering or inquiring into the matter before the commencement day,
the old law applies (that is, the previous tribunal will continue to hear the
matter).
Regulation 56 – Disciplinary notice—decision
to take disciplinary action
This regulation provides that where a
disciplinary notice had been given to a person by a previous tribunal and it had
decided to take disciplinary action. On commencement, the decision to take
disciplinary action is taken to have been an occupational discipline order by
the ACAT.
Part 15 Miscellaneous
Regulation
57 – Meaning of replaced entity—pt 15 – makes formal
provisions for this Part. “Replaced entity” means an
entity:
(a) that immediately before the commencement day, could consider an
application made to the entity; and
(b) that has ceased to exist; and
(c)
1 or more functions of which have been taken over by the
ACAT.
Regulation 58 – Continued application of old
law
This provision applies to a regulation providing for the continued
application of an old law. Where this is the case, this provision is in
addition to and does not limit the effect of section 84 of the Legislation
Act.
Regulation 59 – Continued existence of replaced
entity
If a regulation provides for the continued application of an old
law, the replaced entity continues to exist for this purpose for a period of six
months from commencement. After this time, the replaced entity ceases to exist
and the matter is transferred to the ACAT. The regulation makes specific
provision in relation to the President of the Administrative Appeals Tribunal,
who has resigned from that Tribunal as of the specified
date.
Regulation 60 – Replaced entity - orders about conduct
of matter
This provision applies to a regulation providing for the
continued application of an old law. Where, under the old law, a member may
make an order about the conduct of a matter (which should be distinguished from
an order on the application being considered by the member), but the member is
not available (for example, the member may be out of the jurisdiction), the
General President of the ACAT may make the order about the conduct of a matter.
This situation might arise where, for example, the member hearing a matter under
the old law dies (in this case, it is also assumed that only that member may
have been able to make an order in relation to the conduct of the case). In
such a case, the General President may make an order about the future conduct of
the matter.
Regulation 61 – Orders to resolve
difficulties
If a difficulty arises in the application of this regulation
to a particular matter, the ACAT may make any order it considers appropriate to
resolve the difficulty.
Regulation 62 – Rules to resolve
difficulties
If a difficulty arises in the application of this regulation
to a particular matter, the ACAT may make a rule it considers appropriate to
resolve the difficulty.
Regulation 63 – Order made by replaced
entity
On commencement, (subject to the operation of regulation 59),
orders made by a replaced entity are taken to be ACAT orders and may be reviewed
or enforced as such.
Regulation 64 – Construction of
outdated references to replaced entities
After commencement, references
to a replaced entity in an Act, instrument or document are taken to be a
reference to the ACAT.
Regulation 65 – Members of
ACAT—remuneration
Pending a decision of the Remuneration Tribunal
about the remuneration of non-presidential members, provision is made preserving
the daily remuneration rate entitlement of non-presidential members of the ACAT
who were formally members of a replaced entity. New non-presidential members
will be also entitled to payment at the daily rate of a member of the Energy and
Water Consumer Council. It is assumed that the Remuneration Tribunal will make
a determination about this matter that takes effect on commencement –
accordingly this provision simply permits continued daily rates of pay at the
previous rate applicable to a member prior to the formal effect of the new
remuneration determination.
Regulation 66 – Agents Act –
trust money
This provision has been relocated to these transitional
regulations as a result of the omission of the transitional provisions in
regulation 67(a).
Regulation 67 – Modification of Act, pt
30—Act, s 301 (2)
Section 301(2) of the ACT Civil and
Administrative Tribunal Act 2008 permits a regulation to be made modifying
the operation of the ACAT legislation. This power is exercised in relation to
four matters.
Firstly, (in regulation 67(a)), transitional provisions
originally included in the Divisions 30.2 to 30.7 of the ACT Civil and
Administrative Tribunal Act 2008 are omitted as these matters are now dealt
with by these regulations. Note also regulation 65 above which preserves the
effect of proposed section 308 (Agents Act – trust money) which was to be
included in omitted Division 30.3.
Secondly, (by new section 301A), the
power is exercised to permit the ACAT to appoint more than one registrar, rather
than the one contemplated by the legislation. The General President has made
this request to enable the registry to be organised along two streams –
one dealing with the administration (including the dispute handling functions)
of the registry, and one to deal with the dispute resolution functions of the
registry. This change is made now to allow for efficient startup of the
tribunal, but will be formally incorporated into the legislation through a
portfolio bill.
Thirdly, (in the remaining sections and Schedules 1 and
2), the power is exercised to clarify the relationship between the powers of the
Registrar (under the Construction Occupations (Licensing) Act 2004) and
the ACAT. Under that Act, the Registrar has significant regulatory powers,
which sometimes need to be exercised immediately. The amendments clarify that
the Registrar may continue to exercise these statutory powers as an alternative
to commencing proceedings in the ACAT when the Registrar becomes aware that a
ground of occupational discipline exists. In addition, the desirability of an
administrative review under section 56(1) of the Construction Occupations
(Licensing) Act 2004 has been identified and has been included. This change
is made now to allow for efficient startup of the tribunal, but will be formally
incorporated into the legislation through a portfolio bill.