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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Civil and Administrative Tribunal
Amendment Bill 2013
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
The Civil and Administrative Legislation (Repeal and Amendment) Bill 2013 is cognate with this
Bill.
Overview of Bill
The objects of this Bill are:
(a) to amend the Civil and Administrative Tribunal Act 2013:
(i) to provide for the constitution and the practice and procedure of, and appeals from,
the Civil and Administrative Tribunal (NCAT), and
(ii) to provide for the abolition of the Vocational Training Appeal Panel and the transfer
of its functions to NCAT, and
(iii) to make further provision with respect to savings and transitional matters, and
(b) to rename the Administrative Decisions Tribunal Act 1997 as the Administrative Decisions
Review Act 1997 and confine its operation to the process for the administrative review by
NCAT of certain decisions of administrators and to repeal and amend certain other
legislation consequent on the amendments made to that Act.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act (except for Schedule 2) on the date
of assent to the proposed Act. Schedule 2 will commence on the day on which NCAT is formally
established.
b2013-006-94.d29
Civil and Administrative Tribunal Amendment Bill 2013 [NSW]
Explanatory note
Schedule 1 Amendment of Civil and Administrative Tribunal
Act 2013 No 2
Schedule 1 amends the Civil and Administrative Tribunal Act 2013:
(a) to provide for the general constitution requirements and practice and procedure for NCAT,
and
(b) to provide for internal appeals in NCAT and appeals rights to the Supreme Court, District
Court and Land and Environment Court from decisions of NCAT, and
(c) to provide for the allocation of functions to the various Divisions of NCAT, the membership
of the Divisions and special constitution, practice and procedure and appeal mechanisms
for some of the Divisions of NCAT, and
(d) to make further provision with respect to the constitution and the procedure of the Rule
Committee of NCAT, and
(e) to enable the President of NCAT to give procedural directions, and
(f) to provide for the abolition of the Vocational Training Appeal Panel and the transfer of its
functions to NCAT, and
(g) to rename the Occupational and Regulatory Division of NCAT as the Occupational
Division, and
(h) to make further provision with respect to savings and transitional matters consequent on the
establishment of NCAT and the transfer to it of proceedings and functions of certain
existing tribunals.
Schedule 2 Repeal and amendment of certain legislation
relating to Administrative Decisions Tribunal
Schedule 2.1 repeals the Administrative Decisions Legislation Amendment Act 1997. The Act
contains uncommenced amendments to the Administrative Decisions Tribunal Act 1997 that will
become redundant with the abolition of the Administrative Decisions Tribunal and the amendment
of the Administrative Decisions Tribunal Act 1997 by the proposed Act.
Schedule 2.2 amends the Administrative Decisions Tribunal Act 1997:
(a) to rename the Act as the Administrative Decisions Review Act 1997, and
(b) to remove provisions relating to the establishment, membership, officers and functions of
the Administrative Decisions Tribunal, and
(c) to confine the operation of the Act to the process for the administrative review of certain
decisions of administrators and confer the function of conducting such reviews on NCAT.
Schedule 2.3 amends the Administrative Decisions Tribunal Regulation 2009 to rename it and
confine its operation consistent with the amendments made to the Administrative Decisions
Tribunal Act 1997 by the proposed Act.
Schedule 2.4 repeals the Administrative Decisions Tribunal Rules 1998.
Page 2
First print
New South Wales
Civil and Administrative Tribunal
Amendment Bill 2013
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2 3
Schedule 2 Repeal and amendment of certain legislation relating to Administrative
Decisions Tribunal 80
b2013-006-94.d29
New South Wales
Civil and Administrative Tribunal
Amendment Bill 2013
No , 2013
A Bill for
An Act to amend the Civil and Administrative Tribunal Act 2013 to make further provision with
respect to the constitution and functions of the Tribunal and to rename and make related
amendments to the Administrative Decisions Tribunal Act 1997; and for related purposes.
See also the Civil and Administrative Legislation (Repeal and Amendment) Bill 2013.
Civil and Administrative Tribunal Amendment Bill 2013 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Civil and Administrative Tribunal Amendment Act 2013. 3
2 Commencement 4
(1) This Act commences on the date of assent to this Act, except as provided by 5
subsection (2). 6
(2) Schedule 2 commences on the establishment day within the meaning of the Civil and 7
Administrative Tribunal Act 2013. 8
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Civil and Administrative Tribunal Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
Schedule 1 Amendment of Civil and Administrative Tribunal 1
Act 2013 No 2 2
[1] Whole of Act 3
Omit all bracketed notes wherever occurring in section headings that draw attention ("cf") 4
to provisions of other Acts. 5
[2] Section 3 6
Omit the section. Insert instead: 7
3 Objects of Act 8
The objects of this Act are: 9
(a) to establish an independent Civil and Administrative Tribunal of New 10
South Wales to provide a single point of access for most tribunal 11
services in the State, and 12
(b) to enable the Tribunal: 13
(i) to make decisions as the primary decision-maker in relation to 14
certain matters, and 15
(ii) to review decisions made by certain persons and bodies, and 16
(iii) to determine appeals against decisions made by certain persons 17
and bodies, and 18
(iv) to exercise such other functions as are conferred or imposed on it, 19
and 20
(c) to ensure that the Tribunal is accessible and responsive to the needs of 21
all of its users, and 22
(d) to enable the Tribunal to resolve the real issues in proceedings justly, 23
quickly, cheaply and with as little formality as possible, and 24
(e) to ensure that the decisions of the Tribunal are timely, fair, consistent 25
and of a high quality, and 26
(f) to ensure that the Tribunal is accountable and has processes that are 27
open and transparent, and 28
(g) to promote public confidence in tribunal decision-making in the State 29
and in the conduct of tribunal members. 30
[3] Section 4 Definitions 31
Insert in alphabetical order in section 4 (1): 32
administrative review application, administrative review decision, 33
administrative review jurisdiction, administratively reviewable decision and 34
administrator--see section 30. 35
ancillary decision of the Tribunal means a decision made by the Tribunal 36
under legislation (other than an interlocutory decision of the Tribunal) that is 37
preliminary to, or consequential on, a decision determining proceedings, 38
including: 39
(a) a decision concerning whether the Tribunal has jurisdiction to deal with 40
a matter, and 41
(b) a decision concerning the awarding of costs in proceedings. 42
appeal jurisdiction of the Tribunal--see section 28 (2) (c). 43
Appeal Panel means an Appeal Panel of the Tribunal. 44
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Civil and Administrative Tribunal Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
appealable external decision--see section 31. 1
authorised official--see section 75. 2
civil penalty means a monetary or pecuniary penalty that is imposed on a 3
person (except as punishment for an offence) for a contravention of either a 4
provision of legislation or an order or other decision of a person or body. 5
civil penalty provision of this Act--see section 77. 6
decision--see section 5. 7
decision-maker--see section 6. 8
enforcement jurisdiction--see section 33. 9
external appeal and external appeal jurisdiction--see section 31. 10
external decision-maker means a decision-maker who is external to the 11
Tribunal. 12
general application, general decision and general jurisdiction--see 13
section 29. 14
interlocutory decision of the Tribunal means a decision made by the Tribunal 15
under legislation concerning any of the following: 16
(a) the granting of a stay or adjournment, 17
(b) the prohibition or restriction of the disclosure, broadcast or publication 18
of matters, 19
(c) the issue of a summons, 20
(d) the extension of time for any matter (including for the lodgment of an 21
application or appeal), 22
(e) an evidential matter, 23
(f) the disqualification of any member, 24
(g) the joinder or misjoinder of a party to proceedings, 25
(h) the summary dismissal of proceedings, 26
(i) any other interlocutory issue before the Tribunal. 27
internal appeal, internal appeal jurisdiction and internally appealable 28
decision--see section 32. 29
principal registrar means the person employed in the Public Service as the 30
principal registrar of the Tribunal. 31
procedural rules means each of the following: 32
(a) the Tribunal rules, 33
(b) the regulations in their application to the practice and procedure of the 34
Tribunal. 35
Note. Section 25 (5) provides that in the event of an inconsistency between a provision 36
of the regulations and a provision of the Tribunal rules, the provision of the regulations 37
prevails to the extent of the inconsistency. 38
resolution process--see section 37. 39
[4] Section 4 (1), definition of "application" 40
Omit "section 6". Insert instead "section 39". 41
[5] Section 4 (1), definition of "Deputy Registrar" 42
Omit the definition. 43
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
[6] Section 4 (1) 1
Omit the definition of Registrar. Insert instead: 2
registrar means the principal registrar or any other person employed in the 3
Public Service as a registrar of the Tribunal. 4
[7] Section 4 (4)-(7) 5
Insert after section 4 (3): 6
(4) Any provisions of this Act that are expressed to be subject to the procedural 7
rules have effect subject to any exceptions, limitations or other restrictions 8
specified by the procedural rules. 9
(5) Subject to section 17 (3), procedural rules that make provision as referred to 10
in subsection (4) are not inconsistent with this Act. 11
Note. Section 17 (3) provides that the provisions of a Division Schedule for a Division 12
of the Tribunal prevail to the extent of any inconsistency between those provisions and 13
any other provisions of this Act or the provisions of the procedural rules. See also item 14
23 of Schedule 7. Also, the procedural rules cannot be inconsistent with enabling 15
legislation. See sections 25 (1) and 90 (2) (a). 16
(6) A reference in this Act to the Administrative Decisions Review Act 1997 is a 17
reference to the Administrative Decisions Tribunal Act 1997, as renamed and 18
amended, on and from the establishment day. 19
Note. See the amendments made by Schedule 2 (Repeal and amendment of certain 20
legislation relating to Administrative Decisions Tribunal) to the Civil and Administrative 21
Tribunal Amendment Act 2013. 22
(7) Notes included in this Act do not form part of this Act. 23
[8] Sections 5 and 6 24
Omit the sections. Insert instead: 25
5 Meaning of "decision" 26
(1) In this Act, decision includes any of the following: 27
(a) making, suspending, revoking or refusing to make an order or 28
determination, 29
(b) giving, suspending, revoking or refusing to give a certificate, direction, 30
approval, consent or permission, 31
(c) issuing, suspending, revoking or refusing to issue a licence, authority or 32
other instrument, 33
(d) imposing a condition or restriction, 34
(e) making a declaration, demand or requirement, 35
(f) retaining, or refusing to deliver up, an article, 36
(g) doing or refusing to do any other act or thing. 37
(2) For the purposes of this Act: 38
(a) a decision is made under enabling legislation or this Act if it is made in 39
the exercise (or purported exercise) of a function conferred or imposed 40
by or under the enabling legislation or this Act, and 41
(b) a decision that purports to be made under enabling legislation or this Act 42
is taken to be a decision made under the enabling legislation or this Act 43
even if the decision was beyond the power of the decision-maker to 44
make, and 45
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
(c) a refusal of a decision-maker to make a decision under enabling 1
legislation or this Act because the decision-maker considers that the 2
decision concerned cannot lawfully be made under the enabling 3
legislation or this Act is taken to be a decision made under the enabling 4
legislation or this Act to refuse to make the decision requested, and 5
(d) a failure by a decision-maker to make a decision within the period 6
specified by enabling legislation or this Act for making the decision is 7
taken to be a decision by the decision-maker at the end of the period to 8
refuse to make the decision. 9
6 Meaning of "decision-maker" 10
(1) For the purposes of this Act, the decision-maker in relation to a decision is the 11
person or body that makes (or is taken to have made) the decision for the 12
purposes of enabling legislation or this Act. 13
(2) The person or body specified by enabling legislation as a person or body 14
whose decisions are reviewable or appealable is taken to be the only 15
decision-maker in relation to the making of such a decision even if some other 16
person or body also had a role in the making of the decision. 17
[9] Section 8 Appointments and other matters to facilitate establishment of Tribunal 18
Omit section 8 (2) (e). Insert instead: 19
(e) appointment as a registrar (including as the principal registrar) or other 20
member of staff of the Tribunal. 21
[10] Section 11 Appointment of occasional members 22
Insert "and the determination of costs" after "the dismissal" in section 11 (6) (b). 23
[11] Section 11 (6) (c) 24
Insert "and the determination of costs" after "the decision". 25
[12] Section 16 Divisions of Tribunal 26
Omit "and Regulatory" from section 16 (1) (c). 27
[13] Section 16 (1) (e) 28
Omit the paragraph. 29
[14] Section 16 (4)-(6) 30
Omit section 16 (4). Insert instead: 31
(4) However, the functions of the Tribunal when constituted by an Appeal Panel 32
or in exercise of its enforcement jurisdiction are not allocated to any particular 33
Division of the Tribunal. 34
(5) A Division of the Tribunal is composed of such members as are assigned to it 35
by or under this Act. 36
(6) If the functions allocated to a Division of the Tribunal are reallocated to 37
another Division as a result of amendments made to this Act by amending 38
legislation, any proceedings that were instituted or commenced in the Tribunal 39
before the reallocation may continue to be dealt with and determined as if the 40
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Civil and Administrative Tribunal Amendment Bill 2013 [NSW]
Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
reallocation had not occurred unless the amending legislation provides 1
otherwise. 2
Note. See, for example, section 17, which enables the regulations to make 3
amendments to Division Schedules for Divisions of the Tribunal and, for that purpose, 4
make provision for matters of a savings or transitional nature. 5
[15] Section 17 Division Schedule for a Division of Tribunal 6
Omit section 17 (2) (g). Insert instead: 7
(g) the functions of registrars in relation to proceedings in the Division, 8
(h) special requirements regarding appeals from decisions made by the 9
Tribunal or a registrar in the Division (including whether appeals lie to 10
an Appeal Panel or court and the constitution and functions of an 11
Appeal Panel or court on any such appeal). 12
[16] Section 17 (3)-(7) 13
Omit section 17 (3). Insert instead: 14
(3) The provisions of a Division Schedule for a Division of the Tribunal prevail to 15
the extent of any inconsistency between those provisions and any other 16
provisions of this Act or the provisions of the procedural rules. 17
(4) Subject to subsections (5) and (6), the regulations may: 18
(a) amend section 16 (1) to change the name of a Division of the Tribunal 19
and amend other provisions of this Act (including a Division Schedule 20
for a Division of the Tribunal) to update references to a renamed 21
Division, and 22
(b) amend a Division Schedule for a Division of the Tribunal to make 23
additional or different provision for or with respect to the composition 24
and functions of the Division (including, without limitation, the matters 25
referred to in subsection (2)), and 26
(c) make provision for matters of a saving or transitional nature consequent 27
on the amendment of this Act by the regulations. 28
(5) The Minister is not to recommend the making of a regulation for the purposes 29
of subsection (4) unless the Minister certifies that: 30
(a) the President has agreed to the amendments that are proposed to be 31
made by the regulation, and 32
(b) in the case of proposed amendments to Schedule 4 (other than an 33
amendment of a kind referred to in subsection (4) (a))--the Minister for 34
Fair Trading has also agreed to the proposed amendments to that 35
Schedule. 36
(6) However, a regulation made for the purposes of subsection (4) may not make: 37
(a) any of the following amendments to Schedule 5: 38
(i) an amendment that has the effect of reallocating any of the 39
functions of the Division of the Tribunal to which that Schedule 40
relates in relation to the Health Practitioner Regulation National 41
Law (NSW) to another Division, 42
(ii) an amendment to Division 3 (Health practitioners) of Part 4 of 43
that Schedule, including an amendment to another provision of 44
that Schedule that has the effect of indirectly amending clause 14 45
(Effect of amendments to Schedule by regulations), or 46
(b) any amendment to Schedule 6 (other than an amendment of a kind 47
referred to in subsection (4) (a)). 48
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
(7) Any reference in any other Act or instrument made under any other Act to a 1
Division of the Tribunal that has been renamed under this section is to be read 2
as a reference to the Division as renamed. 3
[17] Section 19 Division Lists and List Managers for Divisions of Tribunal 4
Omit "Tribunal rules" from section 19 (3) (b). Insert instead "procedural rules". 5
[18] Section 20 Functions of President 6
Omit section 20 (3). Insert instead: 7
(3) Without limiting subsections (1) and (2), the President has the following 8
functions if appointed before the establishment day: 9
(a) to assist in the development of the Tribunal rules for the Tribunal to use 10
on its establishment, 11
(b) to assign functions to other members appointed before the 12
establishment day with respect to the establishment of the Tribunal, 13
(c) to assign functions to any registrar or other member of staff appointed 14
before the establishment day, 15
(d) to exercise such other functions as are necessary or convenient to 16
facilitate the establishment of the Tribunal. 17
[19] Part 2, Division 4, heading 18
Omit the heading. Insert instead: 19
Division 4 Registrars and other staff 20
[20] Section 22 Appointment of registrars and other staff 21
Omit section 22 (1). Insert instead: 22
(1) Persons (including the principal registrar and any other registrars) may be 23
employed in the Public Service to enable the Tribunal to exercise its functions. 24
Those employees may be referred to as the employees or staff of the Tribunal. 25
[21] Section 22 (3) 26
Insert after section 22 (2): 27
(3) A reference in this Act to the appointment of a registrar or other member of 28
staff of the Tribunal is to be read as a reference to the employment of a person 29
as such in the Public Service. 30
[22] Section 23 31
Omit the section. Insert instead: 32
23 Functions of registrars 33
(1) A registrar has such functions as may be conferred or imposed on the registrar 34
by or under this Act or any other legislation or law. 35
(2) The principal registrar has the following additional functions: 36
(a) to assist the President in managing the business and the affairs of the 37
Tribunal, 38
(b) such administrative and other functions as may be conferred or imposed 39
on the principal registrar by or under this Act or any other legislation or 40
law. 41
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
(3) A registrar may exercise such functions of the principal registrar as may be 1
directed by the President or principal registrar. 2
(4) Without limiting subsections (1) and (3): 3
(a) the President may, from time to time, designate a registrar to be a 4
registrar for one or more Divisions of the Tribunal, and 5
(b) the designated registrar may (subject to any direction of the President or 6
principal registrar) exercise the functions of the principal registrar in 7
connection with proceedings and legislation allocated to the Division or 8
Divisions concerned. 9
(5) Anything done or omitted to be done by a registrar in exercising a function of 10
the principal registrar has effect as if it had been done or omitted to be done by 11
the principal registrar. 12
(6) The procedural rules may make provision for or with respect to the functions 13
of the principal registrar and other registrars, including authorising registrars 14
to make ancillary or interlocutory decisions of the Tribunal on behalf of the 15
Tribunal. 16
(7) In addition, a registrar (including the principal registrar) appointed before the 17
establishment day has and may exercise such functions with respect to the 18
establishment of the Tribunal as may be assigned to the registrar under section 19
20 (3). 20
[23] Part 2, Division 5 21
Omit the Division. Insert instead: 22
Division 5 Tribunal rules and procedural directions 23
24 Rule Committee of Tribunal 24
(1) There is to be a Rule Committee of the Tribunal. 25
(2) The functions of the Rule Committee are: 26
(a) to make the Tribunal rules, and 27
(b) to ensure that the Tribunal rules it makes are as flexible and informal as 28
possible. 29
(3) The Rule Committee is to be composed of the following: 30
(a) the President, 31
(b) each Division Head, 32
(c) such other members as may be appointed by the President from time to 33
time. 34
(4) The President is to be the Chairperson of the Rule Committee. 35
(5) The President is to appoint one of the other members of the Rule Committee 36
who is a Deputy President as Deputy Chairperson of the Rule Committee. 37
(6) Unless the regulations provide otherwise, the Rule Committee is to regulate its 38
own procedure. 39
(7) The following provisions apply in relation to meetings of the Rule Committee 40
unless the regulations provide, or the Rule Committee decides, otherwise: 41
(a) the Chairperson of the Rule Committee or, in the absence of the 42
Chairperson, the Deputy Chairperson of the Committee is to preside at 43
a meeting of the Committee, 44
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(b) in the absence from a meeting of the Rule Committee of both the 1
Chairperson and Deputy Chairperson, another member of the 2
Committee who is a Deputy President is to be chosen by the members 3
present to preside at the meeting, 4
(c) the quorum for a meeting of the Rule Committee is a majority of the 5
number of the members for the time being, 6
(d) any duly convened meeting of the Rule Committee at which a quorum 7
is present is competent to transact any business of the Rule Committee 8
and has and may exercise all the functions of the Rule Committee, 9
(e) a decision supported by a majority of the votes cast at a meeting of the 10
Rule Committee at which a quorum is present is the decision of the 11
Committee, 12
(f) the person presiding at a meeting of the Rule Committee has a 13
deliberative vote and, in the event of an equality of votes, also has a 14
casting vote. 15
(8) The President is to call the first meeting of the Rule Committee in such manner 16
as the President thinks fit and (subject to any decision of the Committee) may 17
call such other meetings of the Committee as the President thinks necessary. 18
25 Tribunal rules may provide for practice and procedure 19
(1) The Rule Committee may make rules of the Tribunal (referred to in this Act as 20
the Tribunal rules), not inconsistent with this Act or enabling legislation, for 21
or with respect to the following: 22
(a) the practice and procedure to be followed in proceedings in the 23
Tribunal, 24
(b) any matter that is, by this Act or any other legislation, required or 25
permitted to be prescribed by the Tribunal rules. 26
Note. A number of provisions of this Act provide for matters to be prescribed by the 27
procedural rules. The term procedural rules is defined in section 4 (1) to include the 28
Tribunal rules. Procedural rules that make provision as referred to in section 4 (4) are 29
not inconsistent with this Act. See section 4 (5). 30
(2) Without limiting subsection (1) (a), the Tribunal rules may make provision for 31
or with respect to any of the matters specified in Schedule 7. 32
(3) Without limiting the generality of section 42 of the Interpretation Act 1987, 33
the Tribunal rules may also prescribe different rules for: 34
(a) each of the Divisions of the Tribunal, and 35
(b) different classes of matters. 36
Note. Section 42 of the Interpretation Act 1987 provides for the matters for which 37
statutory rules may generally make provision. 38
(4) The Tribunal rules may authorise or require the use of an electronic case 39
management system established under clause 2 of Schedule 1 to the Electronic 40
Transactions Act 2000 in relation to any proceedings in the Tribunal in respect 41
of which the use of such a system is authorised by an order in force under 42
clause 3 of Schedule 1 to that Act. 43
(5) In the event of an inconsistency between a provision of the regulations and a 44
provision of the Tribunal rules, the provision of the regulations prevails to the 45
extent of the inconsistency. 46
Note. Section 90 (2) also enables the regulations to make provision concerning 47
matters for or with respect to which the Tribunal rules may make provision (including 48
the matters specified in Schedule 7). 49
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
(6) This section does not limit the operation of section 78 (Rules of court) of the 1
Interpretation Act 1987. 2
26 Procedural directions 3
(1) The President may give directions (procedural directions) relating to the 4
practice and procedures to be followed in, and to the actual conduct of, 5
proceedings in the Tribunal. 6
(2) The procedural directions must be: 7
(a) publicly available, and 8
(b) consistent with this Act, enabling legislation and the procedural rules. 9
(3) Without limiting subsection (2) (a), it is sufficient compliance with that 10
paragraph if procedural directions are published on the website of the 11
Tribunal. 12
(4) Each member, and the parties to proceedings and their representatives, must 13
comply with any applicable procedural directions. 14
[24] Part 2, Division 6 15
Omit the Division. Insert instead: 16
Division 6 Constitution of Tribunal 17
27 Constitution of Tribunal 18
(1) The Tribunal is to be constituted as follows: 19
(a) in the case of an internal appeal or designated external appeal--by an 20
Appeal Panel of the Tribunal consisting of: 21
(i) one member who is an Australian lawyer, or 22
(ii) 2 or more members (at least one of whom must be an Australian 23
lawyer), 24
(b) in the case of proceedings for contempt of the Tribunal--by one or more 25
of the following members: 26
(i) the President, 27
(ii) any other member who is a current or former NSW judicial 28
officer, 29
(c) in the case of proceedings for a contravention of a civil penalty 30
provision of this Act--by one or more of the following: 31
(i) the President, 32
(ii) a Deputy President, 33
(iii) a principal member who is an Australian lawyer of at least 34
7 years' standing, 35
(d) in the case of any other proceedings--by one or more Division 36
members of the Division to which the function of dealing with the 37
proceedings is allocated. 38
Note. The functions of the Tribunal are generally exercised in the Divisions of the 39
Tribunal by Division members. However, the functions of the Tribunal when constituted 40
by an Appeal Panel or in exercise of its enforcement jurisdiction are not allocated to 41
any particular Division of the Tribunal. See section 16 (4). 42
A Division Schedule for a Division may, in some cases, make special provision for the 43
constitution of the Tribunal when exercising functions allocated to that Division 44
(including the qualifications of members to sit in specified kinds of proceedings). It may 45
also provide for certain Division functions to be exercised by a registrar and for the 46
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
constitution of Appeal Panels in internal appeals against decisions made in the 1
Division. 2
The procedural rules may also authorise a registrar to make ancillary or interlocutory 3
decisions of the Tribunal on behalf of the Tribunal. See section 23 (6). 4
(2) The President may give directions as to the members who are to constitute the 5
Tribunal for the purposes of any particular proceedings. 6
Note. The President may delegate the function of constituting the Tribunal for particular 7
proceedings to a Division Head for a Division of the Tribunal or another member. See 8
clause 12 of Schedule 2. 9
(3) In giving a direction as to the members who are to constitute the Tribunal for 10
the purposes of any particular proceedings, the President is to have regard to 11
the following matters: 12
(a) the degree of public importance or complexity of the subject-matter of 13
the proceedings, 14
(b) the need for any of the members to have special knowledge or 15
experience in the subject-matter of the proceedings, 16
(c) any applicable requirements in relation to the constitution of the 17
Tribunal that are specified by a Division Schedule for a Division of the 18
Tribunal or enabling legislation, 19
(d) such other matters as the President considers relevant. 20
(4) The President may give directions (whether for particular proceedings, classes 21
of proceedings or generally) as to which member is to preside at proceedings 22
in the Tribunal when the Tribunal is constituted by more than one member. 23
(5) There may be more than one sitting of the Tribunal (including when 24
constituted as an Appeal Panel) at the same time. 25
(6) In this section: 26
designated external appeal means any of the following: 27
(a) an external appeal under section 45 of the Drug and Alcohol Treatment 28
Act 2007, 29
(b) an external appeal under section 50 of the NSW Trustee and Guardian 30
Act 2009, 31
(c) any other external appeal that this Act or enabling legislation has 32
declared to be a designated external appeal for the purposes of this 33
section. 34
[25] Parts 3-7 35
Omit Part 3. Insert instead: 36
Part 3 Jurisdiction of Tribunal 37
28 Jurisdiction of Tribunal generally 38
(1) The Tribunal has such jurisdiction and functions as may be conferred or 39
imposed on it by or under this Act or any other legislation. 40
(2) In particular, the jurisdiction of the Tribunal consists of the following kinds of 41
jurisdiction: 42
(a) the general jurisdiction of the Tribunal, 43
(b) the administrative review jurisdiction of the Tribunal, 44
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(c) the appeal jurisdiction of the Tribunal (comprising its external and 1
internal appeal jurisdiction), 2
(d) the enforcement jurisdiction of the Tribunal. 3
(3) Subject to this Act and enabling legislation, the Tribunal has jurisdiction in 4
respect of matters arising before or after the establishment of the Tribunal. 5
Note. Section 35D of the Ombudsman Act 1974 enables the Ombudsman and the 6
President to enter into arrangements with respect to the co-operative exercise of the 7
respective functions of the Ombudsman and the Tribunal (including providing for the 8
referral of matters between them). 9
29 General jurisdiction 10
(1) The Tribunal has general jurisdiction over a matter if: 11
(a) legislation (other than this Act or the procedural rules) enables the 12
Tribunal to make decisions or exercise other functions, whether on 13
application or of its own motion, of a kind specified by the legislation 14
in respect of that matter, and 15
(b) the matter does not otherwise fall within the administrative review 16
jurisdiction, appeal jurisdiction or enforcement jurisdiction of the 17
Tribunal. 18
Note. The general jurisdiction of the Tribunal includes (but is not limited to) functions 19
conferred on the Tribunal by enabling legislation to review or otherwise re-examine 20
decisions of persons or bodies other than in connection with the exercise of the 21
Tribunal's administrative review jurisdiction. 22
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise 23
of its general jurisdiction: 24
(a) the jurisdiction to make ancillary and interlocutory decisions of the 25
Tribunal in the proceedings, 26
(b) the jurisdiction to exercise such other functions as are conferred or 27
imposed on the Tribunal by or under this Act or enabling legislation in 28
connection with the conduct or resolution of such proceedings. 29
(3) A general decision of the Tribunal is a decision of the Tribunal determining a 30
matter over which it has general jurisdiction. 31
(4) A general application is an application made to the Tribunal for a general 32
decision. 33
(5) Nothing in this section permits general jurisdiction to be conferred on the 34
Tribunal by a statutory rule unless the conferral of jurisdiction by such means 35
is expressly authorised by another Act. 36
30 Administrative review jurisdiction 37
(1) The Administrative Decisions Review Act 1997 provides for the circumstances 38
in which the Tribunal has administrative review jurisdiction over a decision 39
of an administrator. 40
Note. See section 9 of the Administrative Decisions Review Act 1997. 41
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise 42
of its administrative review jurisdiction: 43
(a) the jurisdiction to make ancillary and interlocutory decisions of the 44
Tribunal in the proceedings, 45
(b) the jurisdiction to exercise such other functions as are conferred or 46
imposed on the Tribunal by or under this Act, the Administrative 47
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Decisions Review Act 1997 or enabling legislation in connection with 1
the conduct or resolution of such proceedings. 2
(3) An administratively reviewable decision is a decision of an administrator over 3
which the Tribunal has administrative review jurisdiction. 4
Note. See section 7 of the Administrative Decisions Review Act 1997. 5
(4) An administrator, in relation to an administratively reviewable decision, is the 6
person or body that makes (or is taken to have made) the decision under 7
enabling legislation. 8
Note. See section 8 of the Administrative Decisions Review Act 1997. 9
(5) An administrative review decision of the Tribunal is a decision of the Tribunal 10
determining a matter over which it has administrative review jurisdiction. 11
(6) An administrative review application is an application made to the Tribunal 12
for an administrative review decision. 13
Note. Chapter 3 (Process for administrative reviews under this Act) of the 14
Administrative Decisions Review Act 1997 also makes provision for the role of 15
administrators when making administratively reviewable decisions and the role of the 16
Tribunal when conducting an administrative review of such decisions. 17
31 External appeal jurisdiction of Tribunal 18
(1) The Tribunal has external appeal jurisdiction over a decision (or class of 19
decisions) made by an external decision-maker if legislation provides that an 20
appeal may be made to the Tribunal against any such decision (or class of 21
decisions). 22
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise 23
of its external appeal jurisdiction: 24
(a) the jurisdiction to make ancillary and interlocutory decisions of the 25
Tribunal in the proceedings, 26
(b) the jurisdiction to exercise such other functions as are conferred or 27
imposed on the Tribunal by or under this Act or enabling legislation in 28
connection with the conduct or resolution of such proceedings. 29
(3) An appealable external decision is a decision of an external decision-maker 30
over which the Tribunal has external appeal jurisdiction. 31
(4) An external appeal is an appeal to the Tribunal against an appealable external 32
decision. 33
(5) A provision of enabling legislation that provides for a decision of an external 34
decision-maker to be appealed to the Tribunal extends to the following: 35
(a) a decision made by a person to whom the function of making the 36
decision has been delegated, 37
(b) if the provision specifies the decision-maker by reference to the holding 38
of a particular office or appointment--a decision by any person for the 39
time being acting in, or performing any of the duties of, the office or 40
appointment, 41
(c) a decision made by any other person authorised to exercise the function 42
of making the decision. 43
(6) Nothing in this section permits external appeal jurisdiction to be conferred on 44
the Tribunal by a statutory rule unless the conferral of jurisdiction by such 45
means is expressly authorised by another Act. 46
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32 Internal appeal jurisdiction of Tribunal 1
(1) The Tribunal has internal appeal jurisdiction over: 2
(a) any decision made by the Tribunal in proceedings for a general decision 3
or administrative review decision, and 4
(b) any decision made by a registrar of a kind that is declared by this Act or 5
the procedural rules to be internally appealable for the purposes of this 6
section. 7
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise 8
of its internal appeal jurisdiction: 9
(a) the jurisdiction to make ancillary and interlocutory decisions of the 10
Tribunal in the proceedings, 11
(b) the jurisdiction to exercise such other functions as are conferred or 12
imposed on the Tribunal by or under this Act or enabling legislation in 13
connection with the conduct or resolution of such proceedings. 14
(3) However, the internal appeal jurisdiction of the Tribunal does not extend to: 15
(a) any decision of an Appeal Panel, or 16
(b) any decision of the Tribunal in an external appeal, or 17
(c) any decision of the Tribunal in proceedings for the exercise of its 18
enforcement jurisdiction, or 19
(d) any decision of the Tribunal in proceedings for the imposition of a civil 20
penalty in exercise of its general jurisdiction. 21
Note. The decisions above may be appealable to the Supreme Court and, in some 22
cases in relation to civil penalty decisions made by the Tribunal (whether under this Act 23
or enabling legislation), the District Court. See section 73 and Part 6. 24
(4) An internally appealable decision is a decision of the Tribunal or a registrar 25
over which the Tribunal has internal appeal jurisdiction. 26
(5) An internal appeal is an appeal to the Tribunal against an internally 27
appealable decision. 28
(6) Subject to the procedural rules, if a decision of a registrar is an internally 29
appealable decision, the provisions of this Act relating to the making and 30
determination of an internal appeal are taken to apply as if: 31
(a) any reference to the Tribunal at first instance (however expressed) 32
included a reference to a registrar, and 33
(b) any requirement concerning the granting of leave to appeal against 34
particular kinds of decisions of the Tribunal or on particular grounds 35
extended to decisions of the same kind made by a registrar or grounds 36
of the same kind. 37
33 Enforcement jurisdiction of Tribunal 38
(1) The enforcement jurisdiction of the Tribunal is comprised of: 39
(a) the functions of the Tribunal when dealing with an alleged or apparent 40
contempt of the Tribunal, and 41
(b) the functions of the Tribunal when dealing with an application under 42
section 77 for a contravention of a civil penalty provision of this Act. 43
Note. The functions of the Tribunal relating to the imposition of civil penalties under 44
legislation other than this Act fall within the general jurisdiction, and not the 45
enforcement jurisdiction, of the Tribunal. The enforcement jurisdiction of the Tribunal 46
extends only to proceedings for a civil penalty under this Act. 47
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The Tribunal must observe the rules of evidence when exercising its enforcement 1
jurisdiction. See section 38 (3). 2
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise 3
of its enforcement jurisdiction: 4
(a) the jurisdiction to make ancillary and interlocutory decisions of the 5
Tribunal in the proceedings, 6
(b) the jurisdiction to exercise such other functions as are conferred or 7
imposed on the Tribunal by or under this Act in connection with the 8
conduct or resolution of such proceedings. 9
34 Inter-relationship between Tribunal and Supreme Court 10
(1) The Supreme Court may: 11
(a) refuse to conduct a judicial review of an administratively reviewable 12
decision if it is satisfied that, in all the circumstances, adequate 13
provision is made for an internal review of the decision or an 14
administrative review of the decision by the Tribunal under the 15
Administrative Decisions Review Act 1997, or 16
(b) refuse to conduct a judicial review of a decision of an external 17
decision-maker if it is satisfied that, in all the circumstances, adequate 18
provision is made for the review of the decision by the Tribunal by way 19
of an external appeal, or 20
(c) refuse to conduct a judicial review of a decision of the Tribunal if an 21
internal appeal or an appeal to a court could be, or has been, lodged 22
against the decision. 23
(2) This section: 24
(a) permits, but does not require, the Supreme Court to refuse to conduct a 25
judicial review of a decision on a ground referred to in subsection (1), 26
and 27
(b) does not limit any power that the Supreme Court has, apart from this 28
section, to refuse to conduct a judicial review of a decision. 29
(3) In this section: 30
internal review of an administratively reviewable decision means an internal 31
review of the decision conducted by or on behalf of an administrator under: 32
(a) the Administrative Decisions Review Act 1997, or 33
(b) any other Act instead of the Administrative Decisions Review Act 1997. 34
judicial review does not include an appeal to the Supreme Court under this or 35
any other Act. 36
Part 4 Practice and procedure 37
Division 1 Introduction 38
35 Application of Part 39
Each of the provisions of this Part is subject to enabling legislation and the 40
procedural rules. 41
Note. The Division Schedule for a Division of the Tribunal may, in some cases, make 42
special provision for the practice and procedure to be followed in connection with 43
certain proceedings allocated to the Division for determination. The provisions of the 44
Division Schedule prevail to the extent of any inconsistency with the provisions of this 45
Part. See section 17 (3). 46
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Section 4 (4) also provides that any provisions of this Act that are expressed to be 1
subject to the procedural rules have effect subject to any exceptions, limitations or 2
other restrictions specified by the procedural rules. 3
Enabling legislation may also make provision for matters relating to practice and 4
procedure in relation to functions conferred on the Tribunal, including (for example) 5
specifying periods within which applications or appeals under that legislation are to be 6
made. 7
36 Guiding principle to be applied to practice and procedure 8
(1) The guiding principle for this Act and the procedural rules, in their application 9
to proceedings in the Tribunal, is to facilitate the just, quick and cheap 10
resolution of the real issues in the proceedings. 11
(2) The Tribunal must seek to give effect to the guiding principle when it: 12
(a) exercises any power given to it by this Act or the procedural rules, or 13
(b) interprets any provision of this Act or the procedural rules. 14
(3) Each of the following persons is under a duty to co-operate with the Tribunal 15
to give effect to the guiding principle and, for that purpose, to participate in the 16
processes of the Tribunal and to comply with directions and orders of the 17
Tribunal: 18
(a) a party to proceedings in the Tribunal, 19
(b) an Australian legal practitioner or other person who is representing a 20
party in proceedings in the Tribunal. 21
(4) In addition, the practice and procedure of the Tribunal should be implemented 22
so as to facilitate the resolution of the issues between the parties in such a way 23
that the cost to the parties and the Tribunal is proportionate to the importance 24
and complexity of the subject-matter of the proceedings. 25
(5) However, nothing in this section requires or permits the Tribunal to exercise 26
any functions that are conferred or imposed on it under enabling legislation in 27
a manner that is inconsistent with the objects or principles for which that 28
legislation provides in relation to the exercise of those functions. 29
37 Tribunal to promote use of resolution processes 30
(1) The Tribunal may, where it considers it appropriate, use (or require parties to 31
proceedings to use) any one or more resolution processes. 32
Note. See section 59 for the power of the Tribunal to give effect to a settlement reached 33
by the parties following the use of a resolution process. 34
(2) A resolution process is any process (including, for example, alternative 35
dispute resolution) in which parties to proceedings are assisted to resolve or 36
narrow the issues between them in the proceedings. 37
38 Procedure of Tribunal generally 38
(1) The Tribunal may determine its own procedure in relation to any matter for 39
which this Act or the procedural rules do not otherwise make provision. 40
(2) The Tribunal is not bound by the rules of evidence and may inquire into and 41
inform itself on any matter in such manner as it thinks fit, subject to the rules 42
of natural justice. 43
(3) Despite subsection (2): 44
(a) the Tribunal must observe the rules of evidence in: 45
(i) proceedings in exercise of its enforcement jurisdiction, and 46
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(ii) proceedings for the imposition by the Tribunal of a civil penalty 1
in exercise of its general jurisdiction, and 2
(b) section 128 (Privilege in respect of self-incrimination in other 3
proceedings) of the Evidence Act 1995 is taken to apply to evidence 4
given in proceedings in the Tribunal even when the Tribunal is not 5
required to apply the rules of evidence in those proceedings. 6
Note. Section 67 also prevents the compulsory disclosure of certain documents in 7
proceedings in the Tribunal that would, in proceedings before a court, be protected 8
from disclosure by reason of a claim of privilege. 9
(4) The Tribunal is to act with as little formality as the circumstances of the case 10
permit and according to equity, good conscience and the substantial merits of 11
the case without regard to technicalities or legal forms. 12
(5) The Tribunal is to take such measures as are reasonably practicable: 13
(a) to ensure that the parties to the proceedings before it understand the 14
nature of the proceedings, and 15
(b) if requested to do so--to explain to the parties any aspect of the 16
procedure of the Tribunal, or any decision or ruling made by the 17
Tribunal, that relates to the proceedings, and 18
(c) to ensure that the parties have a reasonable opportunity to be heard or 19
otherwise have their submissions considered in the proceedings. 20
(6) The Tribunal: 21
(a) is to ensure that all relevant material is disclosed to the Tribunal so as to 22
enable it to determine all of the relevant facts in issue in any 23
proceedings, and 24
(b) may require evidence or argument to be presented orally or in writing, 25
and 26
(c) in the case of a hearing--may require the presentation of the respective 27
cases of the parties before it to be limited to the periods of time that it 28
determines are reasonably necessary for the fair and adequate 29
presentation of the cases. 30
Division 2 Commencement of proceedings 31
39 What constitutes an application 32
For the purposes of this Act, an application to the Tribunal includes a 33
complaint, referral or other mechanism (however expressed) by means of 34
which enabling legislation provides for a matter to be brought to the attention 35
of the Tribunal for a decision. 36
40 Making of applications and appeals 37
An application or appeal to the Tribunal is to be made in the time and manner 38
prescribed by enabling legislation or the procedural rules. 39
41 Extensions of time 40
(1) The Tribunal may, of its own motion or on application by any person, extend 41
the period of time for the doing of anything under any legislation in respect of 42
which the Tribunal has jurisdiction despite anything to the contrary under that 43
legislation. 44
(2) Such an application may be made even though the relevant period of time has 45
expired. 46
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42 Service of documents outside the State 1
The Tribunal may require a document to be served outside the State. 2
43 Effect of pending general applications and appeals 3
(1) This section applies to the making or lodgment of any of the following (a 4
pending general application or appeal): 5
(a) a general application for the review or other re-examination of a 6
decision made by an external decision-maker, 7
(b) an external appeal, 8
(c) an internal appeal. 9
Note. See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 10
1997 for the effect of pending administrative review applications on administratively 11
reviewable decisions and the making of orders staying or otherwise affecting such 12
decisions. 13
(2) A pending general application or appeal does not affect the operation of the 14
decision to which the application or appeal relates, or prevent the taking of 15
action to implement the decision, unless the Tribunal makes an order staying 16
or otherwise affecting the operation of the decision. 17
(3) The Tribunal may make such orders (whether with or without conditions) 18
staying or otherwise affecting the operation of a decision to which a pending 19
general application or appeal relates as it considers appropriate to secure the 20
effectiveness of the determination of the application or appeal. 21
Division 3 Participation in proceedings 22
44 Parties and intervention 23
(1) The Tribunal may order that a person be joined as a party to proceedings if the 24
Tribunal considers that the person should be joined as a party. 25
(2) The Tribunal may order that a person be removed as a party to proceedings if 26
the Tribunal considers that the person has: 27
(a) been improperly or unnecessarily joined, or 28
(b) ceased to be a proper or necessary party. 29
(3) For the avoidance of doubt, the member or members who constituted the 30
Tribunal when it made an internally appealable decision cannot be made 31
parties to an internal appeal against the decision. 32
(4) The following persons may intervene and be heard in proceedings to which 33
they are not already parties: 34
(a) the Attorney General, 35
(b) a Minister who administers the legislation that confers or imposes 36
functions the exercise (or purported exercise) of which are in issue in 37
the proceedings, 38
(c) any other person who is authorised by this Act, enabling legislation or 39
the procedural rules to intervene in the proceedings. 40
(5) A Minister may (from money otherwise lawfully available for the purpose) 41
authorise the payment to a party to the proceedings in which the Minister or 42
the Minister's delegate intervenes such costs (if any) as the Minister considers 43
were reasonably incurred by that party in relation to the proceedings as a result 44
of that intervention. 45
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45 Representation of parties 1
(1) A party to proceedings in the Tribunal: 2
(a) has the carriage of the party's own case and is not entitled to be 3
represented by any person, and 4
(b) may be represented by another person only if the Tribunal grants leave 5
for the person to represent the party. 6
(2) However, a party to an internal appeal (or in an application for leave to make 7
an internal appeal) may be represented by a person without requiring the leave 8
of an Appeal Panel if the party was entitled to be represented by such a person 9
without the leave of Tribunal in the proceedings in which the decision under 10
appeal was made. 11
Note. A Division Schedule for a Division of the Tribunal may, in some cases, allow 12
certain kinds of persons to represent parties in proceedings allocated to that Division 13
without requiring the leave of the Tribunal. 14
(3) The Tribunal may at its discretion: 15
(a) grant or refuse leave under subsection (1) (b), and 16
(b) revoke any leave that it has granted. 17
(4) The Tribunal may: 18
(a) appoint a person to act as guardian ad litem for a party, or 19
(b) appoint a person to represent a party, or 20
(c) order that a party be separately represented. 21
(5) A person is not entitled to legal aid under the Legal Aid Commission Act 1979 22
merely because the Tribunal has made an order under subsection (4) (c). 23
(6) Anything done or omitted to be done by a person of a class prescribed by the 24
regulations who is appointed by the Tribunal to represent a party to 25
proceedings does not subject the person personally to any action, liability, 26
claim or demand if the thing was done, or omitted to be done, in good faith for 27
the purpose of representing the party. However, any such liability attaches 28
instead to the Crown. 29
46 Powers in relation to witnesses 30
(1) The Tribunal may: 31
(a) call any witness of its own motion, and 32
(b) examine any witness on oath or affirmation or require evidence to be 33
verified by a statutory declaration, and 34
(c) examine or cross-examine any witness to such extent as the Tribunal 35
thinks proper in order to elicit information relevant to the exercise of the 36
functions of the Tribunal in any proceedings, and 37
(d) compel any witness to answer questions which the Tribunal considers 38
to be relevant in any proceedings. 39
(2) If the Tribunal decides to call a person as a witness under subsection (1) (a), 40
the Tribunal may: 41
(a) seek to procure the voluntary attendance of the witness before it by 42
notifying the person in such manner as it thinks appropriate in the 43
circumstances, or 44
(b) issue a summons (or direct a registrar to issue a summons) to compel the 45
attendance of the person before it. 46
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(3) Nothing in subsection (1) enables the Tribunal to compel a witness to answer 1
a question if the witness has a reasonable excuse for refusing to answer the 2
question. 3
47 Allowances and expenses of witnesses 4
(1) If the regulations so provide, a person (other than a public servant in his or her 5
capacity as such) who is required to appear or give evidence before the 6
Tribunal is entitled to be paid such allowances and expenses as are prescribed, 7
or ascertained in accordance with, the regulations. 8
(2) Subject to subsection (3), the allowances and expenses are to be paid by the 9
party at whose request a witness is summoned. 10
(3) The Tribunal may order that the allowances and expenses of a witness referred 11
to in subsection (2) be paid wholly or partly by the State out of money 12
otherwise lawfully available. 13
48 Issue of summons 14
(1) A summons for the purposes of this Act may be issued by a registrar: 15
(a) on the application of a party to the proceedings, or 16
(b) at the direction of the Tribunal. 17
Note. See also section 46 (2) (b). 18
(2) The fee (if any) prescribed by the regulations is payable for the issue of a 19
summons on the application of a party to the proceedings. 20
(3) Such a summons must be signed by a registrar or as otherwise prescribed by 21
the procedural rules and may require the person to whom it is addressed: 22
(a) to attend and give evidence, or 23
(b) to attend and produce documents or other things, 24
or both. 25
(4) The regulations may make provision for or with respect to excusing, in 26
specified circumstances, a person who produces documents or other things in 27
answer to a summons from attendance at the Tribunal. 28
(5) A summons may be served within or outside the State. 29
Division 4 Conduct of proceedings 30
49 Hearings to be open to public 31
(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders 32
otherwise. 33
(2) The Tribunal may (of its own motion or on the application of a party) order 34
that a hearing be conducted wholly or partly in private if it is satisfied that it is 35
desirable to do so by reason of the confidential nature of any evidence or 36
matter or for any other reason. 37
50 When hearings are required 38
(1) A hearing is required for proceedings in the Tribunal except: 39
(a) in proceedings for the granting of leave for an external or internal 40
appeal, or 41
(b) in connection with the use of any resolution processes in proceedings, or 42
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(c) if the Tribunal makes an order under this section dispensing with a 1
hearing, or 2
(d) in such other circumstances as may be prescribed by the procedural 3
rules. 4
(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that 5
the issues for determination can be adequately determined in the absence of 6
the parties by considering any written submissions or any other documents or 7
material lodged with or provided to the Tribunal. 8
(3) The Tribunal may not make an order dispensing with a hearing unless the 9
Tribunal has first: 10
(a) afforded the parties an opportunity to make submissions about the 11
proposed order, and 12
(b) taken any such submissions into account. 13
(4) The Tribunal may determine proceedings in which a hearing is not required 14
based on the written submissions or any other documents or material that have 15
been lodged with or provided to the Tribunal in accordance with the 16
requirements of this Act, enabling legislation and the procedural rules. 17
(5) This section does not prevent the Tribunal from holding a hearing even if it is 18
not required. 19
51 Adjournment of proceedings 20
The Tribunal may adjourn proceedings to any time and place (including for the 21
purpose of enabling the parties to negotiate a settlement). 22
52 Reconstitution of Tribunal during proceedings 23
(1) The President may replace the member, or one of the members, constituting 24
the Tribunal after the consideration of a matter by the Tribunal has 25
commenced if, before the matter is determined, the member: 26
(a) becomes unavailable for any reason, or 27
(b) ceases to be a member, or 28
(c) ceases to have a qualification required for participation in the 29
proceedings. 30
(2) The President may not replace a member unless the President has first: 31
(a) afforded the parties an opportunity to make submissions about the 32
proposed replacement, and 33
(b) taken any such submissions into account. 34
(3) The Tribunal as so reconstituted is to have regard to the evidence, submissions 35
and decisions in relation to the matter that were given or made before the 36
Tribunal was reconstituted. 37
53 Amendments and irregularities 38
(1) The Tribunal may, in any proceedings, make any amendments to any 39
document (for example, an application or appeal) filed in connection with the 40
proceedings that the Tribunal considers to be necessary in the interests of 41
justice. 42
(2) Any such amendment may be made: 43
(a) at any stage of the proceedings, and 44
(b) on such terms as the Tribunal thinks fit, 45
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but may only be made after giving notice to the party to whom the amendment 1
relates. 2
(3) If a provision of this Act or the procedural rules is not complied with in 3
relation to the commencement or conduct of proceedings, the failure to 4
comply is to be treated as an irregularity and does not nullify the proceedings 5
or any decision in the proceedings unless the Tribunal determines otherwise. 6
(4) The Tribunal may, however, in dealing with any such irregularity, wholly or 7
partly set aside the proceedings or a decision in the proceedings. 8
54 References of questions of law to Supreme Court 9
(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own 10
motion or at the request of a party, refer a question of law arising in the 11
proceedings to the Supreme Court for the opinion of the Court. 12
(2) The Tribunal may refer a question of law under this section only if the 13
President has consented in writing to the question being referred. 14
(3) The Supreme Court has jurisdiction to hear and determine any question of law 15
referred to it under this section, but may decline to exercise that jurisdiction if 16
it considers it appropriate to do so. 17
(4) If a question of law arising in proceedings has been referred to the Supreme 18
Court under this section, the Tribunal is not: 19
(a) to give a decision in the proceedings to which the question is relevant 20
while the reference is pending, or 21
(b) to proceed in a manner, or make a decision, that is inconsistent with the 22
opinion of the Supreme Court on the question. 23
(5) Subsection (4) extends to the Tribunal when constituted as an Appeal Panel 24
that is determining an internal appeal from a decision of the Tribunal in 25
proceedings before which a question of law has been referred by the Tribunal 26
at first instance to the Supreme Court under this section. 27
55 Dismissal of proceedings 28
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the 29
following circumstances: 30
(a) if the applicant or appellant (or, if there is more than one applicant or 31
appellant, each applicant or appellant) withdraws the application or 32
appeal to which the proceedings relate, 33
(b) if the Tribunal considers that the proceedings are frivolous or vexatious 34
or otherwise misconceived or lacking in substance, 35
(c) if the applicant or appellant (or, if there is more than one applicant or 36
appellant, each applicant or appellant) has failed to appear in the 37
proceedings, 38
(d) if the Tribunal considers that there has been a want of prosecution of the 39
proceedings. 40
(2) The Tribunal may reinstate proceedings that have been dismissed under 41
subsection (1) (c) if the Tribunal considers that there is a reasonable 42
explanation for that failure. 43
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Division 5 Determination of issues and proceedings 1
56 Tribunal may reserve decision 2
The Tribunal may reserve its decision in relation to any proceedings. 3
57 Tribunal divided in opinion 4
(1) If the Tribunal is constituted by more than one member for the purposes of the 5
determination of any proceedings and the members are divided in opinion, the 6
opinion of the majority is taken to be the decision of the Tribunal. 7
(2) However, a question of law arising in proceedings in which the Tribunal is 8
constituted by one or more members who are Australian lawyers is to be 9
decided in accordance with the opinion of the member or the majority of the 10
members who are Australian lawyers. 11
(3) If the members are equally divided in their opinion, the opinion that prevails 12
is: 13
(a) in proceedings in which the presiding member is an Australian lawyer 14
or none of the members sitting are Australian lawyers--the opinion of 15
the presiding member, or 16
(b) in proceedings in which the presiding member is not an Australian 17
lawyer but one or more of the other members sitting are Australian 18
lawyers: 19
(i) on a question of law--the opinion of the member who is an 20
Australian lawyer (or the member with the greatest seniority who 21
is an Australian lawyer), or 22
(ii) on any other question--the opinion of the presiding member. 23
(4) In this section, question of law includes the question whether a particular 24
question is a question of law. 25
58 Power to impose conditions 26
A power of the Tribunal to make an order or other decision includes a power 27
to make the order or other decision subject to such conditions (including 28
exemptions) as the Tribunal specifies when making the order or other 29
decision. 30
59 Powers when proceedings settled 31
(1) The Tribunal may, in any proceedings, make such orders (including an order 32
dismissing the application or appeal that is the subject of the proceedings) as 33
it thinks fit to give effect to any agreed settlement reached by the parties in the 34
proceedings if: 35
(a) the terms of the agreed settlement are in writing, signed by or on behalf 36
of the parties and lodged with the Tribunal, and 37
(b) the Tribunal is satisfied that it would have the power to make a decision 38
in the terms of the agreed settlement or in terms that are consistent with 39
the terms of the agreed settlement. 40
(2) The Tribunal may dismiss the application or appeal that is the subject of the 41
proceedings if it is not satisfied that it would have the power to make a 42
decision in the terms of the agreed settlement or in terms consistent with the 43
terms of the agreed settlement. 44
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60 Costs 1
(1) Each party to proceedings in the Tribunal is to pay the party's own costs. 2
(2) The Tribunal may award costs in relation to proceedings before it only if it is 3
satisfied that there are special circumstances warranting an award of costs. 4
(3) In determining whether there are special circumstances warranting an award 5
of costs, the Tribunal may have regard to the following: 6
(a) whether a party has conducted the proceedings in a way that 7
unnecessarily disadvantaged another party to the proceedings, 8
(b) whether a party has been responsible for prolonging unreasonably the 9
time taken to complete the proceedings, 10
(c) the relative strengths of the claims made by each of the parties, 11
including whether a party has made a claim that has no tenable basis in 12
fact or law, 13
(d) the nature and complexity of the proceedings, 14
(e) whether the proceedings were frivolous or vexatious or otherwise 15
misconceived or lacking in substance, 16
(f) whether a party has refused or failed to comply with the duty imposed 17
by section 36 (3), 18
(g) any other matter that the Tribunal considers relevant. 19
(4) If costs are to be awarded by the Tribunal, the Tribunal may: 20
(a) determine by whom and to what extent costs are to be paid, and 21
(b) order costs to be assessed on the basis set out in Division 11 of Part 3.2 22
of the Legal Profession Act 2004 or on any other basis. 23
(5) In this section: 24
costs includes: 25
(a) the costs of, or incidental to, proceedings in the Tribunal, and 26
(b) the costs of, or incidental to, the proceedings giving rise to the 27
application or appeal, as well as the costs of or incidental to the 28
application or appeal. 29
61 When decision determining proceedings takes effect 30
A general decision or a decision determining an external or internal appeal 31
takes effect on the date on which it is given or such later date as may be 32
specified in the decision. 33
Note. See section 66 of the Administrative Decisions Review Act 1997 for when an 34
administrative review decision takes effect. 35
62 Tribunal to give notice of decision and provide written reasons on request 36
(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that 37
each party to proceedings is given notice of any decision that it makes in the 38
proceedings. 39
(2) Any party may, within 28 days of being given notice of a decision of the 40
Tribunal, request the Tribunal to provide a written statement of reasons for its 41
decision if a written statement of reasons has not already been provided to the 42
party. The statement must be provided within 28 days after the request is 43
made. 44
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(3) A written statement of reasons for the purposes of this section must set out the 1
following: 2
(a) the findings on material questions of fact, referring to the evidence or 3
other material on which those findings were based, 4
(b) the Tribunal's understanding of the applicable law, 5
(c) the reasoning processes that lead the Tribunal to the conclusions it 6
made. 7
(4) Nothing in this section prevents the Tribunal from giving oral reasons or a 8
written statement of reasons for a decision it makes even if it has not been 9
requested to do so by a party. 10
63 Power to correct errors in decisions of Tribunal 11
(1) If, after the making of a decision by the Tribunal, the President or the member 12
who presided at the proceedings is satisfied that there is an obvious error in the 13
text of a notice of the decision or a written statement of reasons for the 14
decision, he or she may direct a registrar to alter the text of the notice or 15
statement in accordance with the directions of the President or the member. 16
(2) If the text of a notice or statement is so altered, the altered text is taken to be 17
the notice of the Tribunal's decision or the statement of its reasons, as the case 18
may be, and notice of the alteration is to be given to the parties in the 19
proceedings in such manner as the President or member may direct. 20
(3) Examples of obvious errors in the text of a notice of a decision or a statement 21
of reasons for a decision are where: 22
(a) there is an obvious clerical or typographical error in the text of the 23
notice or statement, or 24
(b) there is an error arising from an accidental slip or omission, or 25
(c) there is a defect of form, or 26
(d) there is an inconsistency between the stated decision and the stated 27
reasons. 28
Division 6 Information disclosure 29
64 Tribunal may restrict disclosures concerning proceedings 30
(1) If the Tribunal is satisfied that it is desirable to do so by reason of the 31
confidential nature of any evidence or matter or for any other reason, it may 32
(of its own motion or on the application of a party) make any one or more of 33
the following orders: 34
(a) an order prohibiting or restricting the disclosure of the name of any 35
person (whether or not a party to proceedings in the Tribunal or a 36
witness summoned by, or appearing before, the Tribunal), 37
(b) an order prohibiting or restricting the publication or broadcast of any 38
report of proceedings in the Tribunal, 39
(c) an order prohibiting or restricting the publication of evidence given 40
before the Tribunal, whether in public or in private, or of matters 41
contained in documents lodged with the Tribunal or received in 42
evidence by the Tribunal, 43
(d) an order prohibiting or restricting the disclosure to some or all of the 44
parties to the proceedings of evidence given before the Tribunal, or of 45
the contents of a document lodged with the Tribunal or received in 46
evidence by the Tribunal, in relation to the proceedings. 47
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(2) The Tribunal cannot make an order under this section that is inconsistent with 1
section 65. 2
(3) The Tribunal may from time to time vary or revoke an order made under 3
subsection (1). 4
(4) For the purposes of this section, a reference to the name of a person includes 5
a reference to any information, picture or other material that identifies the 6
person or is likely to lead to the identification of the person. 7
65 Publication of names or identification of persons involved in certain 8
proceedings 9
(1) This section applies only to the following proceedings: 10
(a) proceedings in the Guardianship Division (or internal appeals against 11
decisions made in such proceedings), 12
(b) proceedings for a decision for the purposes of the community welfare 13
legislation within the meaning of the Community Services (Complaints, 14
Reviews and Monitoring) Act 1993 (including an internal appeal against 15
such a decision), 16
(c) such other proceedings (or classes of proceedings) as may be prescribed 17
by the regulations for the purposes of this section. 18
(2) A person must not, except with the consent of the Tribunal, publish or 19
broadcast the name of any person: 20
(a) who appears as a witness before the Tribunal in any proceedings, or 21
(b) to whom any proceedings in the Tribunal relate, or 22
(c) who is mentioned or otherwise involved in any proceedings in the 23
Tribunal, 24
whether before or after the proceedings are disposed of. 25
Maximum penalty: 26
(a) in the case of a corporation--100 penalty units, or 27
(b) in any other case--50 penalty units or imprisonment for 12 months, or 28
both. 29
(3) This section does not prohibit the publication or broadcasting of an official 30
report of the proceedings that includes the name of any person the publication 31
or broadcasting of which would otherwise be prohibited by this section. 32
(4) For the purposes of this section, a reference to the name of a person includes 33
a reference to any information, picture or other material that identifies the 34
person or is likely to lead to the identification of the person. 35
66 Effect of Government Information (Public Access) Act 2009 36
(1) General rule 37
Except as provided by this section, nothing in this Act requires or authorises 38
any person or body to disclose information to another person or body if there 39
is an overriding public interest against the disclosure of the information under 40
the Government Information (Public Access) Act 2009. 41
(2) Disclosure to person or body other than Tribunal 42
The provisions of the Government Information (Public Access) Act 2009 43
continue to apply to the disclosure of information to any person or body other 44
than to the Tribunal as if this Act had not been enacted. 45
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(3) Disclosure to Tribunal 1
If a provision of this Act requires or authorises any person or body to disclose 2
information to the Tribunal in relation to any proceedings before it and there 3
is an overriding public interest against the disclosure of the information under 4
the Government Information (Public Access) Act 2009: 5
(a) the Government Information (Public Access) Act 2009 does not prevent 6
the disclosure of the information to the Tribunal, and 7
(b) the Tribunal is to do all things necessary to ensure that the information 8
is not disclosed to any person other than a member of the Tribunal as 9
constituted for the purpose of the proceedings unless the person or body 10
disclosing the information to the Tribunal consents to the further 11
disclosure. 12
(4) Certificates by Director-General or General Counsel of the Department of 13
Premier and Cabinet concerning Cabinet information 14
The Director-General or General Counsel of the Department of Premier and 15
Cabinet may certify that information is Cabinet information. Any such 16
certificate: 17
(a) is conclusive of that fact, and 18
(b) authorises any person who would otherwise be required under this Act 19
to lodge a document containing that information with (or disclose the 20
information to) the Tribunal to refuse to lodge the document with (or 21
disclose the information to) the Tribunal. 22
(5) Definitions 23
In this section: 24
Cabinet information means information that is Cabinet information under the 25
Government Information (Public Access) Act 2009. 26
disclose has the same meaning as in the Government Information (Public 27
Access) Act 2009. 28
67 Privileged documents 29
(1) Nothing in this Act requires the disclosure of a document if the Tribunal or 30
President is satisfied that evidence of the document could not be adduced in 31
proceedings before a NSW court by reason of the operation of any of the 32
following provisions of the Evidence Act 1995: 33
(a) section 9 (Application of common law and equity), but only to the 34
extent that it preserves any privilege against the adducing of evidence, 35
(b) section 10 (Parliamentary privilege preserved), 36
(c) Part 3.10 (Privileges) of Chapter 3. 37
(2) In this section: 38
disclosure of a document includes the following: 39
(a) the provision of copies of the document, 40
(b) the granting of access to the document, 41
(c) the disclosure of the contents of the document. 42
document includes a part of a document. 43
NSW court has the same meaning as in the Evidence Act 1995. 44
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68 Court cannot compel disclosure by members and officers of certain 1
confidential information 2
(1) A person who is, or has been, a member, registrar or other officer of the 3
Tribunal is not competent, and cannot be required, to give evidence to a court 4
relating to a matter, or produce in a court a document furnished to the Tribunal 5
in connection with any proceedings, if: 6
(a) the giving of the evidence or production of the document would be 7
contrary to an order of the Tribunal in force under section 64 (1) or 8
under a similar provision of another Act, or 9
(b) an application has been made to the Tribunal for an order under 10
section 64 (1), or under such a similar provision, concerning the matter 11
to which the evidence would relate, or in relation to the document, and 12
the Tribunal has not determined that application, or 13
(c) the evidence concerns, or the document is, a document that the Tribunal 14
is prevented from disclosing by operation of section 66. 15
(2) A person who is, or has been, a member, registrar or other officer of the 16
Tribunal cannot be required to give evidence to a court in relation to any 17
proceedings in the Tribunal. 18
(3) In this section: 19
court includes any tribunal, authority or person having power to require the 20
production of documents or the answering of questions. 21
produce includes permit access to. 22
69 Application of confidentiality provisions in other Acts 23
If: 24
(a) a provision of another Act prohibits the disclosure (whether absolutely, 25
conditionally or in certain circumstances) of information by persons 26
who: 27
(i) are included in a particular class of persons, and 28
(ii) acquired the information in the course of their duties under the 29
Act, and 30
(b) a person who is (or has been) a member, officer, registrar or other staff 31
member of the Tribunal has acquired or acquires any such information 32
in the course of his or her duties as such, 33
that provision applies to the person as if he or she were included in the 34
particular class of persons and acquired the information in the course of duties 35
under that Act. 36
70 Improper disclosure of information 37
A person must not disclose information obtained in exercising a function 38
under this Act unless the disclosure is made: 39
(a) with the consent of the person to whom the information relates, or 40
(b) in connection with the execution or administration of this Act or the 41
Administrative Decisions Review Act 1997 or other enabling legislation, 42
or 43
(c) for the purpose of any legal proceedings arising out of this Act or the 44
Administrative Decisions Review Act 1997 or other enabling legislation 45
or any report of such proceedings, or 46
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(d) with other legal excuse. 1
Maximum penalty: 2
(a) in the case of a corporation--100 penalty units, or 3
(b) in any other case--50 penalty units or imprisonment for 12 months, or 4
both. 5
Part 5 Enforcement 6
Division 1 Compliance 7
71 False or misleading statements 8
A person must not, in any proceedings or application to the Tribunal, provide 9
any information, or make any statement, to the Tribunal knowing that the 10
information or statement is false or misleading in a material respect. 11
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. 12
72 Contravention of orders of Tribunal 13
(1) A person must not, without lawful excuse, contravene a designated order of 14
the Tribunal. 15
Maximum penalty: 16
(a) in the case of a corporation--100 penalty units, or 17
(b) in any other case--50 penalty units or imprisonment for 12 months, or 18
both. 19
(2) A designated order of the Tribunal means any of the following: 20
(a) an order of the Tribunal made under section 64 (Tribunal may restrict 21
disclosures concerning proceedings), 22
(b) an order of the Tribunal made under section 108 (2) (b), (c), (d) or (e) 23
of the Anti-Discrimination Act 1977 or an interim order of the Tribunal 24
made under that Act, 25
(c) an order of the Tribunal made under section 42 of the Guardianship Act 26
1987, 27
(d) any other order of the Tribunal that a provision of this Act or enabling 28
legislation has declared to be a designated order for the purposes of this 29
section. 30
(3) A person must not, without reasonable excuse, contravene any other order of 31
the Tribunal made under this Act or any other legislation. 32
Civil penalty provision. 33
Division 2 Contempt of Tribunal 34
73 Contempt of Tribunal 35
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, 36
that a person is guilty of contempt of the Tribunal committed in the face of the 37
Tribunal or in the hearing of the Tribunal, the same powers as the District 38
Court has in those circumstances in relation to a contempt of the District 39
Court. 40
Note. Section 27 (1) provides that, in the case of proceedings for contempt of the 41
Tribunal, the Tribunal may be constituted by one or more members (being members 42
who are the President or any other member who is a current or former NSW judicial 43
officer). 44
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(2) A person is guilty of contempt of the Tribunal if the person does or omits to 1
do any thing that, if the Tribunal were a court of law having power to commit 2
for contempt, would be contempt of that court unless the person establishes 3
that there was a reasonable excuse for the act or omission. 4
(3) Without limiting subsection (1), the Tribunal may vacate or revoke an order 5
with respect to contempt of the Tribunal. 6
(4) For the purposes of this section: 7
(a) sections 199, 200 and 202 of the District Court Act 1973 apply to the 8
Tribunal and any members constituting the Tribunal in the same way as 9
they apply to the District Court and a Judge of the District Court, and 10
(b) a reference in section 200 of that Act to the registrar of a proclaimed 11
place is taken to be a reference to the principal registrar, and 12
(c) section 201 of that Act applies to a ruling, order, direction or decision 13
of the Tribunal under those provisions as so applied. 14
Note. Section 201 of the District Court Act 1973 (as applied by this subsection) 15
provides for appeals to the Supreme Court against contempt decisions of the Tribunal 16
under this section. 17
(5) Without limiting the powers of the Tribunal under this section, if it is alleged, 18
or appears to the Tribunal on its own view, that a person is guilty of contempt 19
of the Tribunal (whether committed in the face or hearing of the Tribunal or 20
not), the Tribunal may refer the matter to the Supreme Court for 21
determination. 22
(6) The Supreme Court is to dispose of any matter referred to it under this section 23
in the manner it considers appropriate. 24
74 No double punishment for both contempt and offence or civil penalty provision 25
contravention 26
(1) An act or omission may be punished as a contempt of the Tribunal even though 27
it could be punished as an offence or a contravention of a civil penalty 28
provision of this Act. 29
(2) An act or omission may be punished as an offence or a contravention of a civil 30
penalty provision of this Act even though it could be punished as a contempt 31
of the Tribunal. 32
(3) However, a person is not liable to be punished twice if the person's act or 33
omission constitutes: 34
(a) both an offence and a contempt of the Tribunal, or 35
(b) both a contravention of a civil penalty provision of this Act and a 36
contempt of the Tribunal. 37
Division 3 Proceedings for offences and civil penalties under this 38
Act 39
75 Commencement of proceedings 40
Proceedings for an offence against a provision of this Act or on an application 41
under section 77 may be commenced only by any of the following persons (an 42
authorised official): 43
(a) the Minister, 44
(b) a person with the written consent of either the Minister or another 45
person or body authorised by the Minister for that purpose. 46
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76 Proceedings for offences 1
(1) Proceedings for an offence against this Act are to be dealt with summarily 2
before the Local Court. 3
(2) Proceedings for an offence against this Act may be brought within the period 4
of 12 months of the date on which the offence is alleged to have been 5
committed. 6
77 Proceedings for contravention of civil penalty provision of this Act 7
(1) This section applies to a provision of this Act (a civil penalty provision of this 8
Act) if the words "Civil penalty provision" are specified at the end of the 9
provision. 10
Note. A contravention of a provision of this Act for which a maximum penalty is 11
provided is an offence rather than a contravention of a civil penalty provision of this Act. 12
(2) The Tribunal may, on the application of an authorised official, order a person 13
to pay a monetary penalty if the Tribunal is satisfied that the person has 14
contravened a civil penalty provision of this Act. 15
(3) The monetary penalty must not exceed: 16
(a) in the case of a contravention by a corporation--$22,000, or 17
(b) in any other case--$11,000. 18
(4) In determining whether to impose a monetary penalty or the appropriate 19
amount for the penalty, the Tribunal is to have regard to the following matters: 20
(a) the deterrent effect of the imposition of a penalty on the contravener, 21
(b) the nature and extent of the contravention, 22
(c) any loss or damage sustained, or gain or benefit obtained, as a result of 23
the contravention, 24
(d) whether the contravention indicates a pattern of behaviour by the 25
contravener of failing to comply with the orders or processes of the 26
Tribunal, 27
(e) the length of time during which the contravention occurred, 28
(f) such other matters as the Tribunal considers relevant. 29
(5) Proceedings for a penalty under this section may be brought within the period 30
of 2 years of the date on which the contravention is alleged to have occurred. 31
(6) The standard of proof that applies in connection with an application under this 32
section is proof on the balance of probabilities. 33
Note. The Tribunal must observe the rules of evidence in proceedings under this 34
section. See section 38 (3). 35
(7) A penalty imposed under this section may be recovered from the person on 36
whom it is imposed in any court of competent jurisdiction as a debt due to the 37
Crown. 38
Division 4 Civil enforcement 39
78 Recovery of amounts ordered to be paid 40
(1) Recovery of non-penalty amounts 41
For the purposes of the recovery of any amount ordered to be paid by the 42
Tribunal (including costs, but not including a civil or other penalty), the 43
amount is to be certified by a registrar. 44
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(2) A certificate given under this section must identify the person liable to pay the 1
certified amount. 2
(3) A certificate of a registrar that: 3
(a) is given under subsection (1), and 4
(b) is filed in the registry of a court having jurisdiction to give judgment for 5
a debt of the same amount as the amount stated in the certificate, 6
operates as such a judgment. 7
(4) Recovery of civil or other penalty amounts 8
A civil or other penalty ordered to be paid by the Tribunal (other than for a 9
contravention of a civil penalty provision of this Act) may be registered as a 10
judgment debt in a court of competent jurisdiction and is enforceable 11
accordingly. 12
Part 6 Appeals 13
Division 1 External appeals 14
79 Making and determination of external appeals 15
(1) An external appeal may be made to the Tribunal by a person entitled to do so 16
under enabling legislation on such a basis or grounds, or in such 17
circumstances, as may be provided by that legislation. 18
(2) In determining an external appeal, the Tribunal may: 19
(a) in the case of enabling legislation that specifies the orders that may be 20
made by the Tribunal on the appeal--make any of those orders, or 21
(b) in any other case--make such orders as it considers appropriate in light 22
of its decision on the appeal, including (but not limited to) orders that 23
provide for any one or more of the following: 24
(i) the appeal to be allowed or dismissed, 25
(ii) the decision under appeal to be confirmed, affirmed or varied, 26
(iii) the decision under appeal to be quashed or set aside, 27
(iv) the decision under appeal to be quashed or set aside and for 28
another decision to be substituted for it, 29
(v) the whole or any part of the case to be reconsidered by the 30
decision-maker whose decision is under appeal, either with or 31
without further evidence, in accordance with the directions of the 32
Tribunal. 33
Division 2 Internal appeals 34
80 Making of internal appeals 35
(1) An appeal against an internally appealable decision may be made to an Appeal 36
Panel by a party to the proceedings in which the decision is made. 37
Note. Internal appeals are required to be heard by the Tribunal constituted as an 38
Appeal Panel. See section 27 (1). 39
(2) Any internal appeal may be made: 40
(a) in the case of an interlocutory decision of the Tribunal at first instance-- 41
with the leave of the Appeal Panel, and 42
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(b) in the case of any other kind of decision (including an ancillary 1
decision) of the Tribunal at first instance--as of right on any question 2
of law, or with the leave of the Appeal Panel, on any other grounds. 3
(3) The Appeal Panel may: 4
(a) decide to deal with the internal appeal by way of a new hearing if it 5
considers that the grounds for the appeal warrant a new hearing, and 6
(b) permit such fresh evidence, or evidence in addition to or in substitution 7
for the evidence received by the Tribunal at first instance, to be given in 8
the new hearing as it considers appropriate in the circumstances. 9
81 Determination of internal appeals 10
(1) In determining an internal appeal, the Appeal Panel may make such orders as 11
it considers appropriate in light of its decision on the appeal, including (but not 12
limited to) orders that provide for any one or more of the following: 13
(a) the appeal to be allowed or dismissed, 14
(b) the decision under appeal to be confirmed, affirmed or varied, 15
(c) the decision under appeal to be quashed or set aside, 16
(d) the decision under appeal to be quashed or set aside and for another 17
decision to be substituted for it, 18
(e) the whole or any part of the case to be reconsidered by the Tribunal, 19
either with or without further evidence, in accordance with the 20
directions of the Appeal Panel. 21
(2) The Appeal Panel may exercise all the functions that are conferred or imposed 22
by this Act or other legislation on the Tribunal at first instance when varying, 23
or making a decision in substitution for, the decision under appeal. 24
Division 3 Appeals from Tribunal to courts 25
Note. A Division Schedule for a Division of the Tribunal may, in some cases, make special and 26
different provision for appeals to the Supreme Court or another court against certain decisions made 27
by the Tribunal in the Division. 28
82 Interpretation 29
(1) Each of the following kinds of decisions of the Tribunal is an appealable 30
decision of the Tribunal for the purposes of this Division: 31
(a) any decision made by an Appeal Panel in an internal appeal, 32
(b) any decision made by the Tribunal in an external appeal, 33
(c) any decision made by the Tribunal in proceedings in which a civil 34
penalty has been imposed by the Tribunal in exercise of its enforcement 35
or general jurisdiction. 36
Note. An appealable decision includes any ancillary or interlocutory decisions of the 37
Tribunal in such proceedings. 38
(2) However, an appealable decision of the Tribunal does not include: 39
(a) any decision made by the Tribunal in proceedings for contempt of the 40
Tribunal, or 41
(b) any decision made by an Appeal Panel in an internal appeal against a 42
decision of a registrar. 43
Note. Section 201 of the District Court Act 1973 (as applied by section 73) provides for 44
appeals to the Supreme Court against contempt decisions of the Tribunal under that 45
section. 46
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(3) For the purpose of this Division, the appropriate appeal court for an appeal 1
against a decision in proceedings in which a civil penalty has been imposed is: 2
(a) if the Tribunal was constituted by one or more senior judicial officers-- 3
the Supreme Court, or 4
(b) if the Tribunal was not constituted by or with any senior judicial 5
officers--the District Court. 6
(4) A reference to the Tribunal in another provision of this Division is to be read 7
as a reference to an Appeal Panel if the appealable decision of the Tribunal 8
concerned is a decision of an Appeal Panel. 9
(5) In this section: 10
senior judicial officer means any of the following: 11
(a) a Judge of the District Court, 12
(b) a judicial member of the Industrial Relations Commission, 13
(c) a Judge of the Land and Environment Court, 14
(d) a Judge of the Supreme Court. 15
83 Appeals against appealable decisions 16
(1) A party to an external or internal appeal may, with the leave of the Supreme 17
Court, appeal on a question of law to the Court against any decision made by 18
the Tribunal in the proceedings. 19
(2) A person on whom a civil penalty has been imposed by the Tribunal in 20
proceedings in exercise of its enforcement or general jurisdiction may appeal 21
to the appropriate appeal court for the appeal on a question of law against any 22
decision made by the Tribunal in the proceedings. 23
(3) The court hearing the appeal may make such orders as it considers appropriate 24
in light of its decision on the appeal, including (but not limited to) the 25
following: 26
(a) an order affirming, varying or setting aside the decision of the Tribunal, 27
(b) an order remitting the case to be heard and decided again by the 28
Tribunal (either with or without the hearing of further evidence) in 29
accordance with the directions of the court. 30
(4) Without limiting subsection (3), the appropriate appeal court for an appeal 31
against a civil penalty may substitute its own decision for the decision of the 32
Tribunal that is under appeal. 33
(5) Subject to any interlocutory order made by the court hearing the appeal, an 34
appeal under this section does not affect the operation of the appealable 35
decision of the Tribunal under appeal or prevent the taking of action to 36
implement the decision. 37
84 Practice and procedure for appeals to courts under this Act 38
(1) This section applies in relation to an appeal against a decision of the Tribunal 39
to: 40
(a) the Supreme Court or District Court under this Division, or 41
(b) the Supreme Court, the District Court or another court under any other 42
provision of this Act. 43
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(2) An appeal to which this section applies must be made: 1
(a) within such time and in such manner as is prescribed by the rules of 2
court for the court to which the appeal is made, or 3
(b) within such further time as the court may allow. 4
(3) The Tribunal (or any of the members constituting the Tribunal) cannot be 5
made a party to an appeal to which this section applies. The rules of court for 6
a court to which such an appeal may be made may make provision for the 7
parties to any such appeal (including the designation of a respondent where the 8
only party to the proceedings from which the appeal is brought was the 9
appellant). 10
(4) In this section: 11
rules of court for a court includes the uniform rules under the Civil Procedure 12
Act 2005 if the uniform rules apply to proceedings of that court. 13
Part 7 Miscellaneous 14
85 Act to bind Crown 15
This Act binds the Crown in right of New South Wales and, in so far as the 16
legislative power of the Parliament of New South Wales permits, the Crown 17
in all its other capacities. 18
86 Seal of Tribunal 19
The Tribunal is to a have a seal and that seal is to be judicially noticed. 20
87 Authentication of documents 21
(1) Every document requiring authentication by the Tribunal is sufficiently 22
authenticated without the seal of the Tribunal if it is: 23
(a) signed by any member or a registrar, or 24
(b) authenticated in a manner prescribed by the regulations. 25
(2) Judicial notice is to be taken of the signature of the member concerned or a 26
registrar when appearing on a document issued by the Tribunal. 27
88 Proof of certain matters not required 28
In any legal proceedings, no proof is required (unless evidence to the contrary 29
is given) of: 30
(a) the constitution of the Tribunal, or 31
(b) any decision of the Tribunal, or 32
(c) the appointment or qualifications of, or the holding of office by, a 33
member. 34
Note. See also section 52 (Proceedings of statutory bodies) of the Interpretation Act 35
1987. 36
89 Protection of representatives, witnesses and staff members 37
(1) An Australian legal practitioner, or any other person appearing before the 38
Tribunal on behalf of a party in any proceedings, has the same protection and 39
immunity as a barrister has in appearing for a party in proceedings in the 40
Supreme Court. 41
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(2) Subject to this Act, a person summoned to attend or appearing before the 1
Tribunal as a witness has the same protection, and is, in addition to the 2
penalties provided by this Act, subject to the same liabilities, as a witness in 3
proceedings in the Supreme Court. 4
(3) Any thing done or omitted to be done by a relevant staff member in exercising 5
the functions conferred or imposed on the relevant staff member by or under 6
this or any other Act does not, if the thing was done or omitted to be done in 7
good faith, subject the relevant staff member personally to any action, liability, 8
claim or demand. 9
Note. See also clause 4 of Schedule 2 with respect to the protections and immunities 10
of members of the Tribunal when exercising their functions. 11
(4) In this section: 12
barrister has the same meaning as in the Legal Profession Act 2004. 13
relevant staff member means: 14
(a) the principal registrar or any other registrar, or 15
(b) an assessor appointed in accordance with the procedural rules, or 16
(c) any other kind of person prescribed by the regulations who exercises 17
functions in connection with the Tribunal. 18
90 Regulations 19
(1) The Governor may make regulations, not inconsistent with this Act, for or 20
with respect to any matter that by this Act is required or permitted to be 21
prescribed or that is necessary or convenient to be prescribed for carrying out 22
or giving effect to this Act. 23
Note. A number of provisions of this Act provide for matters to be prescribed by the 24
procedural rules. The term procedural rules is defined in section 4 (1) to include the 25
regulations in their application to the practice and procedure of the Tribunal. Procedural 26
rules that make provision as referred to in section 4 (4) are not inconsistent with this 27
Act. See section 4 (5). 28
(2) Without limiting subsection (1), the regulations may make provision for or 29
with respect to any of the following matters: 30
(a) any matter for or with respect to which the Tribunal rules may make 31
provision (including, but not limited to, the matters specified in 32
Schedule 7), 33
Note. The Tribunal rules cannot be inconsistent with enabling legislation. See 34
section 25 (1). 35
(b) the fees payable in respect of proceedings in the Tribunal, including fees 36
for the following: 37
(i) general applications and administrative review applications, 38
(ii) external and internal appeals, 39
(iii) the filing or lodgment of any document in the Tribunal, 40
(iv) the provision of transcripts or recordings of proceedings, 41
(v) the issue of summonses or any other document out of the 42
Tribunal, 43
(c) the fees payable in relation to the use of resolution processes of the 44
Tribunal, 45
(d) the fees payable for administrative services provided by a registrar or 46
any other officer of the Tribunal, whether in connection with the 47
administration of this Act or otherwise, 48
(e) the waiver, postponement and refund of fees and exemptions from fees, 49
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
(f) the use of resolution processes conducted under or for the purposes of 1
this Act, including: 2
(i) the kinds of processes that, and the circumstances in which such 3
processes, may be used, and 4
(ii) the persons who may conduct or participate in such processes and 5
their respective functions, and 6
(iii) the payment of costs in connection with the use of such 7
processes, and 8
(iv) the removal or limitation of the civil liability of participants in 9
such processes (for example, liability for defamation), and 10
(v) the disclosure or use in legal proceedings of statements, 11
admissions or other evidence made, provided or disclosed in 12
connection with such processes, 13
(g) the use of telephones, audio visual links or any other means of 14
communication in connection with proceedings in the Tribunal 15
(including enabling witnesses to appear before, or give evidence, by 16
such means), 17
(h) the provision and use of interpreters, 18
(i) the procedure of the Rule Committee. 19
(3) The Minister is not to recommend the making of a regulation that prescribes a 20
fee of the kind referred to in subsection (2) (b), (c) or (d) for the exercise of 21
any of the functions of the Tribunal in proceedings that are entered in the 22
Health Practitioner Division List of the Occupational Division of the Tribunal 23
unless the Minister certifies that the Minister for Health has agreed to the fee. 24
91 Annual and other reports 25
(1) Annual reports 26
As soon as practicable after 30 June (but on or before 31 December) of each 27
year, the President must provide the Minister with a report (an annual report) 28
on the operations of the Tribunal for the period ending on 30 June in that year. 29
(2) The Minister is to lay an annual report, or cause it to be laid, before both 30
Houses of Parliament as soon as practicable after receiving the report. 31
(3) If a House of Parliament is not sitting when the Minister seeks to lay an annual 32
report before it, the Minister is to cause a copy of the report to be presented to 33
the Clerk of that House of Parliament. 34
(4) An annual report presented under subsection (3): 35
(a) is, on presentation and for all purposes, taken to have been laid before 36
the House, and 37
(b) may be printed by authority of the Clerk of the House, and 38
(c) if so printed, is taken to be a document published by or under the 39
authority of the House, and 40
(d) is to be recorded: 41
(i) in the case of the Legislative Council--in the Minutes of the 42
Proceedings of the Legislative Council, and 43
(ii) in the case of the Legislative Assembly--in the Votes and 44
Proceedings of the Legislative Assembly, 45
on the first sitting day of the House after receipt of the copy of the report 46
by the Clerk. 47
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(5) Other reports 1
The President may, on behalf of the Tribunal, provide such other reports to the 2
Minister (or any other Minister administering legislation that confers or 3
imposes functions on the Tribunal) concerning any matter that the President 4
considers: 5
(a) to be of importance in relation to the administration of this Act or in 6
relation to the jurisdiction of the Tribunal or any matter falling within 7
its jurisdiction, or 8
(b) to be in the public interest. 9
92 Review of Act 10
(1) The Minister is to review this Act to determine whether the policy objectives 11
of the Act remain valid and whether the terms of the Act remain appropriate 12
for securing those objectives. 13
(2) The review is to be undertaken as soon as possible after the period of 5 years 14
commencing on the establishment day. 15
(3) A report on the outcome of the review is to be tabled in each House of 16
Parliament within 12 months after the end of the period of 5 years. 17
[26] Schedule 1 Savings, transitional and other provisions 18
Omit paragraph (i) from the definition of existing tribunal in clause 2 (1). Insert instead: 19
(i) the Vocational Training Appeal Panel constituted by section 62 of the 20
Apprenticeship and Traineeship Act 2001. 21
[27] Schedule 1, clause 2 (1) 22
Omit the definition of relevant amending Act (including the note to that definition). 23
Insert instead: 24
relevant amending Act means each of the following Acts: 25
(a) the Civil and Administrative Tribunal Amendment Act 2013, 26
(b) the Civil and Administrative Legislation (Repeal and Amendment) Act 27
2013. 28
[28] Schedule 1, clause 5 (2) (b) 29
Omit "member's". Insert instead "member". 30
[29] Schedule 1, clause 5, Table 31
Omit "Deputy Registrar" from the matter relating to the Deputy Chairperson (Registry and 32
Administration) of the Consumer, Trader and Tenancy Tribunal. 33
Insert instead "Non-principal registrar". 34
[30] Schedule 1, clause 5, Table 35
Omit the matter relating to an Other member who is a health practitioner and Other member 36
who is a lay person from the matter relating to an existing health practitioner tribunal. 37
[31] Schedule 1, clause 5, Table 38
Omit "Principal member" from the matter relating to the Chairperson of a local land board 39
under the Crown Lands Act 1989. 40
Insert instead "Senior member". 41
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[32] Schedule 1, clause 5, Table 1
Omit the matter relating to the Victims Compensation Tribunal. 2
[33] Schedule 1, Part 2, Division 3 3
Omit the Division. Insert instead: 4
Division 3 Proceedings concerning abolished existing tribunals 5
Subdivision 1 Interpretation 6
6 Interpretation 7
(1) In this Division: 8
part heard proceedings means pending proceedings where the court or 9
existing tribunal in which the proceedings were instituted or commenced had 10
begun to hear (but had not determined) the proceedings before the 11
establishment day. 12
pending proceedings are proceedings (including appeals) that: 13
(a) were instituted or commenced before the establishment day, and 14
(b) have not been finally determined before that day by the court or existing 15
tribunal in which the proceedings were instituted or commenced. 16
Note. See clause 2 (3) as to the meaning of finally determined proceedings. 17
unexercised right means a right (including a right exercisable only with leave) 18
that: 19
(a) was available to be exercised immediately before the establishment day, 20
and 21
(b) had not yet been exercised before that day. 22
unheard proceedings means pending proceedings that had not been heard 23
before the establishment day by the court or existing tribunal in which the 24
proceedings were instituted or commenced. 25
(2) The provisions of this Division, in their application to local land boards 26
constituted under the Crown Lands Act 1989, extend only to those functions 27
of such boards that will become the functions of NCAT on and from the 28
establishment day. 29
Note. Certain non-adjudicative functions of local land boards will become functions of 30
the Director-General (within the meaning of the Crown Lands Act 1989) instead of 31
NCAT as a result of amendments made by the Civil and Administrative Legislation 32
(Repeal and Amendment) Act 2013. 33
Subdivision 2 Determination of pending proceedings 34
7 Pending proceedings before existing tribunals transfer to NCAT 35
(1) Unheard proceedings in an existing tribunal are taken, on and from the 36
establishment day, to have been duly commenced in NCAT and may be heard 37
and determined instead by NCAT. 38
(2) In relation to part heard proceedings in an existing tribunal, the person or 39
persons constituting the tribunal for those proceedings: 40
(a) are to continue, on and from the establishment day, to hear the matter, 41
and to determine the matter, sitting as NCAT, and 42
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(b) are taken to have been duly appointed as members of NCAT for the 1
purposes of determining the matter even if the person or persons have 2
not been appointed as members of NCAT by or under another provision 3
of this Act, and 4
(c) may have regard to any record of the proceedings before the existing 5
tribunal, including a record of any evidence taken in the proceedings 6
before the existing tribunal. 7
(3) For the purposes of subclauses (1) and (2): 8
(a) NCAT has and may exercise all the functions that the relevant existing 9
tribunal had immediately before its abolition, and 10
(b) the provisions of any Act, statutory rule or other law that would have 11
applied to or in respect of the proceedings had this Act and the relevant 12
amending Acts not been enacted continue to apply. 13
8 Pending court proceedings concerning existing tribunals may be completed 14
(1) This clause applies to pending proceedings before a court on an appeal against, 15
or for the judicial review of, a decision of an existing tribunal. 16
(2) A court in proceedings to which this clause applies may, on and from the 17
establishment day, continue to deal with the proceedings until they are 18
concluded. 19
(3) For this purpose: 20
(a) the court continues to have and may exercise all the functions that the 21
court had in relation to the proceedings immediately before the 22
establishment day, and 23
(b) the provisions of any Act, statutory rule or other law that would have 24
applied to or in respect of the proceedings had this Act and the relevant 25
amending Acts not been enacted continue to apply. 26
(4) Without limiting subclause (3), if the original powers of the court included the 27
power to remit the proceedings to be heard and decided again by the existing 28
tribunal concerned, the court may in determining the proceedings: 29
(a) remit the proceedings instead to NCAT, and 30
(b) make such other orders as it considers appropriate to facilitate the 31
remitting of the proceedings to NCAT. 32
Subdivision 3 Exercise of certain unexercised rights 33
9 Certain unexercised rights to make applications or appeals to existing 34
tribunals may continue to be exercised in NCAT 35
(1) This clause applies to each of the following unexercised rights (an existing 36
unexercised application or appeal right): 37
(a) an unexercised right to apply to an existing tribunal for it to make a 38
decision at first instance concerning a matter, 39
(b) an unexercised right to apply to an existing tribunal for a review of a 40
decision of another person or body, 41
(c) an unexercised right to appeal to an existing tribunal against a decision 42
of another person or body. 43
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(2) A person who has an existing unexercised application or appeal right may 1
apply or appeal to NCAT for the exercise of the same functions that could have 2
been exercised by the existing tribunal to which the right relates had the 3
existing tribunal not been abolished. 4
Note. An application or appeal under this clause that would have required leave before 5
the establishment day will still require such leave. Also, any time limits under existing 6
law for making the application or appeal will continue to apply to applications or appeals 7
under this clause. See subclause (3). 8
(3) For the purposes of subclause (2): 9
(a) NCAT has and may exercise all the functions that the relevant existing 10
tribunal would have had in relation to the application or appeal if it had 11
been made before the establishment day (including any functions 12
relating to the granting of leave to apply or appeal), and 13
(b) the provisions of any Act, statutory rule or other law (including 14
provisions concerning the time within which to apply or appeal) that 15
would have applied to or in respect of the application or appeal had this 16
Act and the relevant amending Acts not been enacted continue to apply. 17
10 Certain unexercised rights to appeal against decisions of existing tribunals 18
may continue to be exercised 19
(1) This clause applies to each of the following unexercised rights (an existing 20
unexercised appeal right): 21
(a) an unexercised right to appeal against a decision of the Administrative 22
Decisions Tribunal or another tribunal or body to an Appeal Panel of 23
that Tribunal, 24
(b) an unexercised right to appeal against a decision of an existing tribunal 25
to a court. 26
(2) A person who has an existing unexercised appeal right may appeal against the 27
decision of an existing tribunal to which that right relates: 28
(a) if the decision was originally appealable to an Appeal Panel of the 29
Administrative Decisions Tribunal--to an Appeal Panel of NCAT, or 30
(b) if it was originally appealable to a particular court--to that court. 31
Note. An appeal under this clause that would have required leave before the 32
establishment day will still require such leave. Also, any time limits under existing law 33
for appealing will continue to apply to appeals under this clause. See subclauses (3) 34
and (4). 35
(3) For the purposes of an appeal made to an Appeal Panel of NCAT under this 36
clause: 37
(a) the Appeal Panel has and may exercise all the functions that an Appeal 38
Panel of the Administrative Decisions Tribunal would have had in 39
relation to the appeal if it had been made before the establishment day 40
(including any functions relating to the granting of leave to appeal), and 41
(b) the provisions of any Act, statutory rule or other law (including 42
provisions concerning the time within which to appeal) that would have 43
applied to or in respect of the appeal had this Act and the relevant 44
amending Acts not been enacted continue to apply. 45
(4) For the purposes of an appeal made to a court under this clause: 46
(a) the court continues to have and may exercise all the functions that the 47
court would have had if the appeal had been made to it before the 48
establishment day (including any functions relating to the granting of 49
leave to appeal), and 50
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(b) the provisions of any Act, statutory rule or other law (including 1
provisions concerning the time within which to appeal) that would have 2
applied to or in respect of such an appeal had this Act and the relevant 3
amending Acts not been enacted continue to apply. 4
(5) Without limiting subclauses (3) and (4), if the original powers of an Appeal 5
Panel of the Administrative Decisions Tribunal or a court (as the case requires) 6
would have included the power to remit the proceedings to be heard and 7
decided again by the existing tribunal concerned, the Appeal Panel of NCAT 8
or court may in determining an appeal under this clause: 9
(a) remit the proceedings instead to NCAT, and 10
(b) make such other orders as it considers appropriate to facilitate the 11
remitting of the proceedings to NCAT. 12
Subdivision 4 Reviews of certain existing orders and renewal of 13
certain proceedings 14
11 Reviews of existing orders under Guardianship Act 1987 15
(1) This clause applies to each of the following kinds of orders under the 16
Guardianship Act 1987: 17
(a) a guardianship order, 18
(b) a financial management order, 19
(c) an order appointing a person as the manager of a protected person's 20
estate. 21
(2) Without limiting clause 14, the provisions of the Guardianship Act 1987 that 22
enable NCAT to make an order to which this clause applies are taken to extend 23
to any such order made by the Guardianship Tribunal before the establishment 24
day as if NCAT had made that order. 25
12 Renewal of proceedings before CTTT 26
Without limiting clause 14, the provisions of clause 8 (Renewal of 27
proceedings in respect of certain Division decisions) of Schedule 4 are taken 28
to extend to an order made by the Consumer, Trader and Tenancy Tribunal 29
before the establishment day as if the order had been made by NCAT in 30
exercise of functions allocated to the Consumer and Commercial Division of 31
NCAT. 32
Subdivision 5 Allocation of transitional proceedings and 33
enforcement of existing orders 34
13 Allocation of transitional proceedings to Divisions of the Tribunal 35
(1) This clause applies to any proceedings (transitional proceedings) that: 36
(a) are permitted or required to be determined by NCAT under this 37
Division instead of an abolished existing tribunal, or 38
(b) are remitted by a court or an Appeal Panel of NCAT under this Division 39
to NCAT for reconsideration or redetermination. 40
(2) Unless the regulations provide otherwise, the function of determining 41
transitional proceedings is allocated to the Divisions of the Tribunal as 42
follows: 43
(a) if NCAT is determining the proceedings instead of the Consumer, 44
Trader and Tenancy Tribunal or is determining proceedings under the 45
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
Dividing Fences Act 1991 or Retail Leases Act 1994 instead of a local 1
land board or the Administrative Decisions Tribunal--the proceedings 2
are allocated to the Consumer and Commercial Division, 3
(b) if NCAT is determining the proceedings instead of the Guardianship 4
Tribunal--the proceedings are allocated to the Guardianship Division, 5
(c) if NCAT is determining the proceedings instead of an Appeal Panel of 6
the Administrative Decisions Tribunal--the proceedings are not 7
allocated to any particular Division of the Tribunal in accordance with 8
section 16 (4), 9
(d) if NCAT, in determining the proceedings, would be required to exercise 10
functions under legislation that correspond (or substantially 11
correspond) to functions that are now allocated to the Occupational 12
Division--the proceedings are allocated to the Occupational Division, 13
(e) if NCAT is determining any other proceedings instead of an existing 14
tribunal--the proceedings are allocated to the Administrative and Equal 15
Opportunity Division. 16
(3) Despite anything to the contrary in this Act or other legislation, the President 17
is, where practicable, to constitute NCAT for the purposes of transitional 18
proceedings (other than part heard proceedings) in a manner that is consistent 19
with the constitution requirements that would have been applicable for the 20
kind of proceedings in the existing tribunal concerned. 21
Note. For constitution requirements in relation to part heard transitional proceedings, 22
see clause 7 (2). 23
14 Orders of existing tribunals 24
(1) An existing order of an existing tribunal made under other legislation is taken, 25
on and from the establishment day, to be an order made by NCAT under the 26
corresponding provision of that legislation (as amended by a relevant 27
amending Act) or this Act (as the case may be). 28
(2) This clause is subject to the other provisions of this Schedule. 29
(3) In this clause: 30
existing order of an existing tribunal is an order made by the tribunal before 31
the establishment day, and includes an order that would have come into effect 32
on or after the establishment day. 33
[34] Schedule 1 34
Insert before existing clause 9 in Division 4 of Part 2: 35
15 Making of first principal Regulation 36
Part 2 of the Subordinate Legislation Act 1989 is taken to apply to the first 37
principal regulation (within the meaning of that Act) that is made under this 38
Act as if the Minister administering the Subordinate Legislation Act 1989 had 39
given a certificate under section 6 (1) (b) of that Act with respect to the 40
regulation. 41
[35] Schedule 1 42
Renumber existing clause 9 as clause 16. 43
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
[36] Schedule 1 1
Omit existing clause 10. Insert instead: 2
17 Updating references to abolished existing tribunals and their functions 3
(1) Legislative provisions to which clause applies 4
This clause applies to a provision (an affected legislative provision) of any 5
other Act or any instrument made under any other Act (whether enacted or 6
made before or after the commencement of this clause) other than an excluded 7
provision. 8
(2) Each of the following is an excluded provision for the purposes of subclause 9
(1): 10
(a) a provision of this Act or an instrument made under this Act, 11
(b) a provision of the Administrative Decisions Review Act 1997 or an 12
instrument made under that Act, 13
(c) a provision of the Public Sector Employment and Management Act 2002 14
or Government Sector Employment Act 2013 or an instrument made 15
under either Act, 16
(d) a provision of a relevant amending Act, 17
(e) a provision of any other Act or instrument made under any other Act 18
that contains a reference to which this clause would otherwise have 19
applied if that reference was inserted or substituted by, or retained 20
despite, an amendment made to the provision by a relevant amending 21
Act, 22
(f) a spent savings or transitional provision of any other Act or an 23
instrument made under any other Act, 24
(g) a provision of an Act or instrument made under an Act (or a provision 25
belonging to a class of such provisions) prescribed by the regulations. 26
(3) References to existing tribunals 27
A reference in an affected legislative provision to an existing tribunal is to be 28
read, on and from the applicable day, as a reference to NCAT. 29
(4) References to members of existing tribunals 30
A reference in an affected legislative provision to a particular kind of member 31
of an existing tribunal is to be read, on and from the applicable day, as a 32
reference to the corresponding member, if any, of NCAT (as set out in the 33
Table to clause 5). 34
(5) References to Administrative Decisions Tribunal Act 1997 35
A reference in an affected legislative provision to the Administrative 36
Decisions Tribunal Act 1997 is to be read, on and from the applicable day, as 37
a reference to the Administrative Decisions Review Act 1997. 38
(6) References to renumbered, relocated or repealed provisions 39
A reference in an affected legislative provision to a provision of legislation 40
that is renumbered, relocated or repealed by a relevant amending Act is to be 41
read, on and from the applicable day, as: 42
(a) for a provision of legislation that is renumbered--a reference to the 43
provision as renumbered, or 44
(b) for a provision that is relocated or repealed--a provision (if any) of this 45
Act, the Administrative Decisions Review Act 1997 or legislation 46
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amended by a relevant amending Act that corresponds, or substantially 1
corresponds, to the provision. 2
(7) References to functions of existing tribunals 3
Without limiting subclauses (2)-(6), an affected legislative provision that 4
confers or imposes a function on an existing tribunal is to be read, on and from 5
the applicable day, as conferring or imposing the function instead on NCAT. 6
(8) For the purposes of applying subclause (7), a reference to a review of a 7
decision by the Administrative Decisions Tribunal is to be read as a reference 8
to an administrative review of the decision by NCAT under the Administrative 9
Decisions Review Act 1997. 10
(9) Unless the regulations provide otherwise, the provisions of clause 13 (2) and 11
(3) apply to functions that are conferred or imposed on NCAT by operation of 12
this clause in the same way as they apply to the function of determining 13
transitional proceedings under clause 13. 14
(10) Regulation-making powers 15
The regulations may: 16
(a) make provision, despite this clause, for or with respect to the updating 17
of references in any document (including a document containing an 18
affected legislative provision) to an existing tribunal or its functions 19
with references to NCAT and corresponding functions and provisions, 20
or 21
(b) declare whether a specified provision is, or is not, a corresponding 22
provision for the purposes of subclause (6) (b), or 23
(c) without limiting clause 1, make provision for savings or transitional 24
matters consequent on the operation of this clause or a regulation made 25
for the purposes of this clause (including the allocation of functions that 26
are transferred to NCAT by operation of this clause to Divisions of 27
NCAT). 28
(11) Definition 29
In this clause: 30
applicable day means: 31
(a) in relation to an affected legislative provision that is in force or effect 32
on the establishment day--the establishment day, or 33
(b) in relation to an affected legislative provision that comes into force or 34
effect after the establishment day--the day on which the provision 35
comes into force or effect. 36
18 Amendments concerning Divisions of NCAT 37
The renaming of a Division of NCAT, or the substitution of a Division 38
Schedule for a Division of NCAT, by a relevant amending Act does affect the 39
validity of any appointment, assignment or designation of a person made with 40
respect to the Division before that renaming or substitution. 41
[37] Schedule 1 42
Renumber existing clause 11 as clause 19. 43
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Schedule 1 Amendment of Civil and Administrative Tribunal Act 2013 No 2
[38] Schedule 2 Provisions relating to members 1
Omit "the Registrar, a Deputy Registrar" and "regulations or the Tribunal rules" wherever 2
occurring in clause 12. 3
Insert instead "a registrar" and "procedural rules", respectively. 4
[39] Schedule 3 5
Omit the Schedule. Insert instead: 6
Schedule 3 Administrative and Equal Opportunity 7
Division 8
Part 1 Interpretation 9
1 Definitions 10
(1) In this Schedule: 11
Division decision means a decision of the Tribunal in exercise of a Division 12
function. 13
Division function means a function of the Tribunal allocated to the Division 14
by this Schedule. 15
Division Head means the Division Head of the Division. 16
Division member means a member who is assigned to the Division. 17
lands legislation means the following legislation: 18
(a) the Agricultural Industry Services Act 1998, 19
(b) the Australian Oil Refining Agreements Act 1954, 20
(c) the Commons Management Act 1989, 21
(d) the Crown Lands Act 1989, 22
(e) the Crown Lands (Continued Tenures) Act 1989, 23
(f) the Hay Irrigation Act 1902, 24
(g) the Local Land Services Act 2013, 25
(h) the Port Kembla Inner Harbour Construction and Agreement 26
Ratification Act 1955, 27
(i) the Water Act 1912, 28
(j) the Wentworth Irrigation Act 1890, 29
(k) the Western Lands Act 1901. 30
substantive Division function means a Division function other than: 31
(a) a Division function exercised in connection with the making of an 32
ancillary or interlocutory decision of the Tribunal, or 33
(b) a Division function exercised by a registrar. 34
the Division means the Administrative and Equal Opportunity Division of the 35
Tribunal. 36
(2) Except as otherwise provided by this Schedule, a provision of this Schedule 37
that provides for, or limits or excludes, an appeal against a decision of the 38
Tribunal that is made for the purposes of specified legislation (or a specified 39
provision of legislation) is taken to extend to any ancillary or interlocutory 40
decision of the Tribunal in the proceedings in which that decision was made. 41
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Part 2 Composition of Division 1
2 Division members 2
The Division is to be composed of the following members: 3
(a) the Division Head, 4
(b) such other members as may be assigned to the Division by or under this 5
Act. 6
Part 3 Functions of Division 7
3 Functions allocated to Division 8
(1) The following functions of the Tribunal are allocated to the Division: 9
(a) the functions of the Tribunal in relation to the following legislation: 10
Anti-Discrimination Act 1977 11
Child Protection (Working with Children) Act 2012 12
Combat Sports Act 2008 13
Combat Sports Act 2013 14
Commission for Children and Young People Act 1998 15
Community Services (Complaints, Reviews and Monitoring) Act 1993 16
Dormant Funds Act 1942 17
Education Act 1990 18
Government Information (Public Access) Act 2009 19
lands legislation 20
Native Title (New South Wales) Act 1994 21
Plant Diseases Act 1924 22
Public Health Act 2010 23
Victims Rights and Support Act 2013 24
(b) any other function of the Tribunal in relation to legislation that is not 25
specifically allocated to any other Division of the Tribunal by another 26
Division Schedule for a Division. 27
(2) The functions allocated to the Division by subclause (1) include: 28
(a) any functions conferred or imposed on the Tribunal by statutory rules 29
made under legislation referred to in that subclause, and 30
(b) any functions conferred or imposed on the Tribunal by or under this Act 31
or enabling legislation in connection with the conduct or resolution of 32
proceedings for the exercise of functions allocated by that subclause 33
(including the making of ancillary and interlocutory decisions of the 34
Tribunal), and 35
(c) in relation to the exercise of administrative review jurisdiction in this 36
Division--any functions conferred or imposed on the Tribunal by or 37
under the Administrative Decisions Review Act 1997 in connection with 38
the exercise of such jurisdiction. 39
Part 4 Special constitution requirements 40
Note. If special constitution requirements for the exercise of a Division function are not specified by 41
the following provisions, the Tribunal may be constituted in accordance with the general provisions of 42
section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions 43
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of that section in connection with the exercise of Division functions for the purposes of making 1
ancillary or interlocutory decisions of the Tribunal. 2
4 Anti-Discrimination Act 1977 3
The Tribunal, when exercising its substantive Division functions for the 4
purposes of the Anti-Discrimination Act 1977, is to be constituted by: 5
(a) 1 Division member who is an Australian lawyer, or 6
(b) 2 or more Division members (with at least one being an Australian 7
lawyer). 8
5 Combat sports 9
The Tribunal, when exercising its substantive Division functions for the 10
purposes of the Combat Sports Act 2008 or Combat Sports Act 2013, is to be 11
constituted by 1 Division member who is an Australian lawyer. 12
6 Dormant Funds Act 1942 13
The Tribunal, when exercising its substantive Division functions for the 14
purposes of the Dormant Funds Act 1942, is to be constituted by: 15
(a) 1 Division member who is an Australian lawyer, or 16
(b) 2 or more Division members (with at least one being an Australian 17
lawyer). 18
7 Education Act 1990 19
The Tribunal, when exercising its substantive Division functions for the 20
purposes of the Education Act 1990, is to be constituted by: 21
(a) 1 Division member who is an Australian lawyer, or 22
(b) 2 or more Division members (with at least one being an Australian 23
lawyer). 24
8 Public Health Act 2010 25
(1) The Tribunal, when exercising its substantive Division functions for the 26
purposes of section 64 of the Public Health Act 2010, is to be constituted by 27
one Division member who is an Australian lawyer. 28
(2) The Tribunal, when exercising its substantive Division functions for the 29
purposes of section 7, 65 or 66 of that Act, is to be constituted by 3 Division 30
members as follows: 31
(a) 1 presidential member, 32
(b) 1 member who is an Australian lawyer, 33
(c) 1 member who is a registered medical practitioner with experience in 34
public health matters. 35
Part 5 Special practice and procedure 36
9 Rights of representation and appearance 37
(1) Despite section 45 of this Act, a party to proceedings for the exercise of a 38
Division function (other than for the purposes of the Community Services 39
(Complaints, Reviews and Monitoring) Act 1993) is entitled to be represented 40
by an Australian legal practitioner without requiring the leave of the Tribunal. 41
Note. The leave of the Tribunal will, however, be required under section 45 of this Act 42
in other cases. 43
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(2) The Ombudsman has a right to appear in proceedings for the purposes of the 1
Community Services (Complaints, Reviews and Monitoring) Act 1993 before 2
the Tribunal in order to assist the Tribunal (otherwise than as a party in 3
proceedings). 4
(3) The Director-General (within the meaning of the Teaching Service Act 1980) 5
is entitled to appear and be represented at any proceedings arising out of an 6
administrative review application made by a person under Part 4 of the Child 7
Protection (Working with Children) Act 2012. 8
(4) The following persons have a right to appear and be heard in proceedings for 9
the exercise of a Division function for the purposes of the Government 10
Information (Public Access) Act 2009: 11
(a) the Information Commissioner, 12
(b) the Privacy Commissioner, 13
(c) any person who could be aggrieved by a decision of the Tribunal on an 14
administrative review on an application made under Division 4 of Part 5 15
of that Act. 16
10 Parties to proceedings relating to complaint under Anti-Discrimination Act 17
1977 18
(1) The parties to proceedings before the Tribunal relating to a complaint under 19
the Anti-Discrimination Act 1977 are: 20
(a) the complainant who, for the purposes of that Act, is taken to be the 21
applicant, and 22
(b) the respondent, and 23
(c) any other person who has been made a party to the proceedings under 24
this Act, and 25
(d) the Attorney General if the Attorney General intervenes under this Act. 26
(2) Without limiting section 44 of this Act, the Tribunal may substitute a 27
complainant or respondent if the Tribunal is of the opinion that the other 28
parties to the proceedings will not be prejudiced by the substitution. 29
(3) The Tribunal may remove or agree to the withdrawal of a complainant from 30
proceedings if the Tribunal is satisfied that the complainant does not wish to 31
proceed with the complaint. 32
11 Non-disclosure orders for Public Health Act 2010 33
(1) This clause applies to proceedings for the exercise of a Division function for 34
the purposes of Division 4 (Public health orders for Category 4 and 5 35
conditions) of Part 4 of the Public Health Act 2010. 36
(2) If an application for an order under section 64 (Tribunal may restrict 37
disclosures concerning proceedings) of this Act is made by a party to 38
proceedings to which this clause applies, the onus is on the other party to show 39
cause why the application should be refused. 40
12 Costs for Dormant Funds Act 1942 41
(1) Despite section 60 (1) and (2) of this Act, the Tribunal may, in its discretion, 42
award costs in relation to proceedings for the exercise of a Division function 43
for the purposes of the Dormant Funds Act 1942. 44
(2) Without limiting section 60 (4) of this Act, the Tribunal may determine that 45
costs are to be paid out of the fund to which such proceedings relate. 46
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(3) The Tribunal may, in determining the costs in relation to a successful appeal 1
for the purposes of section 15B of Dormant Funds Act 1942 against a 2
determination of the Commissioner of Dormant Funds, order the trustees of 3
the fund to which the appeal relates to pay out of the fund the costs incurred 4
by the Commissioner before the appeal in making the determination. 5
(4) Costs payable out of a fund because of an order made under subclause (3) must 6
not exceed 1% of the value of the fund (as determined by the Tribunal). 7
(5) In this clause: 8
costs includes the costs of, or incidental to, proceedings. 9
fund has the same meaning as in the Dormant Funds Act 1942. 10
13 Costs not to be awarded for certain proceedings 11
Despite section 60 of this Act, the Tribunal may not award costs in 12
proceedings for any of the following Division decisions: 13
(a) a decision for the purposes of the Commission for Children and Young 14
People Act 1998, 15
(b) a decision for the purposes of the Child Protection (Working with 16
Children) Act 2012, 17
(c) an administrative review decision for the purposes of the Victims Rights 18
and Support Act 2013. 19
Part 6 Appeals 20
Division 1 External appeals 21
14 External appeals under lands legislation 22
(1) Except as otherwise provided by the lands legislation, an external appeal made 23
under that legislation: 24
(a) may be made without requiring the leave of the Tribunal concerning the 25
grounds for the appeal, and 26
(b) is to be by way of a rehearing. 27
(2) Fresh evidence, or evidence in addition to or in substitution for the evidence 28
received by the external decision-maker, may be given in the appeal with the 29
leave of the Tribunal. 30
Division 2 Appeals against certain Division decisions 31
15 Division decisions that are not internally appealable 32
Despite section 32 of this Act, each of the following Division decisions is not 33
an internally appealable decision for the purposes of an internal appeal: 34
(a) a decision of the Tribunal for the purposes of section 96 of the 35
Anti-Discrimination Act 1977 with respect to the granting of leave for 36
the purposes of that section, 37
(b) a Division decision for the purposes of the Child Protection (Working 38
with Children) Act 2012, 39
(c) a Division decision for the purposes of the Commission for Children 40
and Young People Act 1998, 41
(d) a Division decision for the purposes of the lands legislation, 42
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(e) a determination of the Tribunal for the purposes of Part 7 of the Native 1
Title (New South Wales) Act 1994, 2
(f) an administrative review decision for the purposes of section 21 of the 3
Plant Diseases Act 1924, 4
(g) an administrative review decision for the purposes of section 51 of the 5
Victims Rights and Support Act 2013. 6
16 Appeals against interim orders under Anti-Discrimination Act 1977 with leave 7
only 8
Despite section 80 (2) of this Act, an internal appeal against an interim order 9
of the Tribunal under the Anti-Discrimination Act 1977 may only be made 10
with the leave of the Appeal Panel even if it is on a question of law. 11
17 Certain decisions to be appealed directly to Supreme Court 12
(1) A party to proceedings in which any of the following decisions is made may 13
appeal to the Supreme Court on a question of law against the decision: 14
(a) a Division decision for the purposes of the Child Protection (Working 15
with Children) Act 2012, 16
(b) a Division decision for the purposes of the Commission for Children 17
and Young People Act 1998. 18
Note. Internal appeals against such decisions are not available because of clause 15. 19
See also section 84 (Practice and procedure for appeals to courts under this Act). 20
(2) The Supreme Court may make such orders as it considers appropriate in light 21
of its decision on the appeal, including (but not limited to) the following: 22
(a) an order affirming, varying or setting aside the decision under appeal, 23
(b) an order varying the decision under appeal, 24
(c) an order setting aside the decision under appeal and, if it considers 25
appropriate, making a decision in substitution of that decision, 26
(d) an order remitting the case to be heard and decided again by the 27
Tribunal (either with or without the hearing of further evidence) in 28
accordance with the directions of the Supreme Court. 29
(3) Subject to any interlocutory order made by the Supreme Court, an appeal to 30
the Supreme Court does not affect the operation of the decision under appeal 31
or prevent the taking of action to implement the decision. 32
18 Decisions under lands legislation to be appealed directly to Land and 33
Environment Court 34
(1) A party to proceedings in which a Division decision is made for the purposes 35
of the lands legislation may appeal to the Land and Environment Court against 36
the decision. 37
Note. Internal appeals against these decisions are not available because of clause 15. 38
(2) Subject to any interlocutory order made by the Land and Environment Court, 39
an appeal to the Land and Environment Court does not affect the operation of 40
the decision under appeal or prevent the taking of action to implement the 41
decision. 42
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[40] Schedule 4 1
Omit the Schedule. Insert instead: 2
Schedule 4 Consumer and Commercial Division 3
Part 1 Interpretation 4
1 Definitions 5
In this Schedule: 6
Division decision means a decision of the Tribunal in exercise of a Division 7
function. 8
Division function means a function of the Tribunal allocated to the Division 9
by this Schedule. 10
Division Head means the Division Head of the Division. 11
Division member means a member who is assigned to the Division. 12
substantive Division function means a Division function other than: 13
(a) a Division function exercised in connection with the making of an 14
ancillary or interlocutory decision of the Tribunal, or 15
(b) a Division function exercised by a registrar. 16
the Division means the Consumer and Commercial Division of the Tribunal. 17
Part 2 Composition of Division 18
2 Division members 19
(1) The Division is to be composed of the following members: 20
(a) the Division Head, 21
(b) such other members as may be assigned to the Division by or under this 22
Act. 23
(2) The Minister may not recommend the appointment of a person as the Division 24
Head unless the Minister certifies that the Minister has consulted with the 25
Minister for Fair Trading about the appointment. 26
Part 3 Functions of Division 27
3 Functions allocated to Division 28
(1) The functions of the Tribunal in relation to the following legislation are 29
allocated to the Division: 30
Agricultural Tenancies Act 1990 31
Australian Consumer Law (NSW) 32
Boarding Houses Act 2012 33
Community Land Development Act 1989 34
Community Land Management Act 1989 35
Consumer Claims Act 1998 36
Contracts Review Act 1980 37
Conveyancers Licensing Act 2003 (but only in relation to Division 3 of Part 4 38
of that Act) 39
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Credit (Commonwealth Powers) Act 2010 1
Dividing Fences Act 1991 2
Fair Trading Act 1987 3
Holiday Parks (Long-term Casual Occupation) Act 2002 4
Home Building Act 1989 5
Motor Dealers Act 1974 6
Motor Dealers and Repairers Act 2013 7
Motor Vehicle Repairs Act 1980 8
Pawnbrokers and Second-hand Dealers Act 1996 9
Property, Stock and Business Agents Act 2002 10
Residential (Land Lease) Communities Act 2013 11
Residential Parks Act 1998 12
Residential Tenancies Act 2010 13
Retail Leases Act 1994 14
Retirement Villages Act 1999 15
Strata Schemes Management Act 1996 16
Sydney Water Act 1994 17
(2) Subclause (1) extends to: 18
(a) any functions conferred or imposed on the Tribunal by statutory rules 19
made under legislation referred to in that subclause, and 20
(b) any functions conferred or imposed on the Tribunal by or under this Act 21
or enabling legislation in connection with the conduct or resolution of 22
proceedings for the exercise of functions allocated by that subclause 23
(including the making of ancillary and interlocutory decisions of the 24
Tribunal). 25
(3) However, the functions allocated to the Division do not include: 26
(a) any functions of the Tribunal involving the exercise of its administrative 27
review jurisdiction, or 28
(b) any functions of the Tribunal allocated to the Occupational Division of 29
the Tribunal. 30
Note. Functions that are not expressly allocated to this Division or another Division are 31
allocated to the Administrative and Equal Opportunity Division. See clause 3 (1) of 32
Schedule 3. 33
Part 4 Special constitution requirements 34
Note. If special constitution requirements for the exercise of a Division function are not specified by 35
the following provisions, the Tribunal may be constituted in accordance with the general provisions of 36
section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions 37
of that section in connection with the exercise of Division functions for the purposes of making 38
ancillary or interlocutory decisions of the Tribunal. 39
4 Retail Leases Act 1994 40
(1) The Tribunal, when exercising its substantive Division functions for the 41
purposes of the Retail Leases Act 1994, is to be constituted by 1 Division 42
member who is an Australian lawyer. 43
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(2) For this purpose, the Tribunal may (but need not) be assisted by 2 other 1
members, in an advisory capacity only, consisting of: 2
(a) a member who has experience as a lessor, or working on behalf of 3
lessors, under retail shop leases, and 4
(b) a member who has experience as a lessee, or working on behalf of 5
lessees, under retail shop leases. 6
(3) A member assisting the Tribunal under this clause is not to adjudicate on any 7
matter before the Tribunal. 8
(4) Terms used in this clause that are defined in the Retail Leases Act 1994 have 9
the same meanings as in that Act. 10
Part 5 Special practice and procedure 11
5 Relationship between Tribunal and courts and other bodies in connection with 12
Division functions 13
(1) Meaning of "court" 14
For the purposes of this clause, court means any court, tribunal, board or other 15
body or person (other than one referred to in subclause (2)) that: 16
(a) is empowered under any other Act, or 17
(b) by consent of, or agreement between, 2 or more persons has authority, 18
to decide or resolve any issue that is in dispute, whether through arbitration or 19
conciliation or any other means. 20
(2) However, court does not, for the purposes of this clause, include: 21
(a) a court, tribunal, board or other body or person that, in relation to a 22
particular matter, is empowered by law to impose a penalty, admonition 23
or other sanction for a contravention of a law or for misconduct or 24
breach of discipline proved to have been committed in connection with 25
that matter but is not empowered to award or order compensation or 26
damages in respect of that matter, or 27
(b) the Fair Trading Administration Corporation constituted under Part 7 of 28
the Home Building Act 1989, or 29
(c) the Ombudsman, or 30
(d) any person exercising the functions of an ombudsman under any law of 31
the Commonwealth, or 32
(e) any person authorised, under a law of the State or of the Commonwealth 33
or of another State or a Territory, to make decisions or orders, or give 34
directions, that are binding only on one party to a dispute. 35
(3) Effect of application to Tribunal or court 36
If, at the time when an application was made to the Tribunal for the exercise 37
of a Division function, no issue arising under the application was the subject 38
of a dispute in proceedings pending before a court, a court has no jurisdiction 39
to hear or determine such an issue. 40
(4) Subclause (3) ceases to apply to the extent to which the application concerned 41
is dismissed for want of jurisdiction or withdrawn. 42
(5) Subclause (3) does not prevent a court from hearing and determining any 43
proceedings in which it is claimed that any order, determination or ruling of 44
the Tribunal in exercise or purported exercise of a Division function is invalid 45
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for want of jurisdiction or from making any order as a consequence of that 1
finding. 2
(6) For the purposes of subclause (3), an issue arises under an application made to 3
the Tribunal for the exercise of a Division function only if the existence of the 4
issue is shown in the applicant's claim or is recorded in the record made by the 5
Tribunal in accordance with this Act. 6
(7) Effect of pending court proceedings on Tribunal 7
If, at the time when an application is made to the Tribunal for the exercise of 8
a Division function, an issue arising under the application was the subject of a 9
dispute in proceedings pending before a court, the Tribunal, on becoming 10
aware of those proceedings, ceases to have jurisdiction to hear or determine 11
the issue. 12
(8) Subclause (7) ceases to apply to the extent to which the proceedings concerned 13
are dismissed or quashed by the court, or by another court, for want of 14
jurisdiction or without deciding the issue on its merits, or withdrawn. 15
(9) Evidence from court proceedings 16
In proceedings on an application to the Tribunal for the exercise of a Division 17
function, a finding or decision made by a court, tribunal, board, body or person 18
referred to in subclause (2) is admissible as evidence of the finding or decision. 19
(10) Clause prevails over other law 20
This clause has effect despite Part 3 of this Act or any other Act or law to the 21
contrary. 22
6 Transfer of proceedings to courts or to other tribunals 23
(1) If the parties in any proceedings for the exercise of a Division function so 24
agree, or if the Tribunal of its own motion or on the application of a party so 25
directs, the proceedings are: 26
(a) to be transferred to a court (in accordance with the rules of that court) 27
that has jurisdiction in the matter, and 28
(b) to continue before that court as if the proceedings had been instituted 29
there. 30
(2) If the parties in any proceedings that have been instituted in a court so agree, 31
or if the court of its own motion or on the application of a party so directs, the 32
proceedings are, if the proceedings relate to a matter for which the Tribunal 33
has jurisdiction to exercise a Division function: 34
(a) to be transferred to the Tribunal in accordance with the procedural rules 35
(if any), and 36
(b) to continue before the Tribunal as if the proceedings had been instituted 37
in the Tribunal. 38
7 Rights of representation 39
Despite section 45 of this Act: 40
(a) a party to proceedings for the exercise of a Division function is entitled 41
to be represented by an Australian legal practitioner without requiring 42
the leave of the Tribunal if the party has been granted legal assistance 43
under Division 2 of Part 2 of the Fair Trading Act 1987, and 44
(b) a party to proceedings for the exercise of a Division function for the 45
purposes of the Retail Leases Act 1994 is entitled to be represented by 46
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an Australian lawyer or other agent without requiring the leave of the 1
Tribunal. 2
Note. The leave of the Tribunal will, however, be required under section 45 of this Act 3
in other cases. 4
8 Renewal of proceedings in respect of certain Division decisions 5
(1) If the Tribunal makes an order in exercise of a Division function in 6
proceedings, the Tribunal may, when the order is made or later, give leave to 7
the person in whose favour the order is made to renew the proceedings if the 8
order is not complied with within the period specified by the Tribunal. 9
(2) If an order has not been complied with within the period specified by the 10
Tribunal, the person in whose favour the order was made may renew the 11
proceedings to which the order relates by lodging a notice with the Tribunal, 12
within 12 months after the end of the period, stating that the order has not been 13
complied with. 14
(3) The provisions of this Act apply to a notice lodged in accordance with 15
subclause (2) as if the notice were a new application made in accordance with 16
this Act. 17
(4) When proceedings have been renewed in accordance with this clause, the 18
Tribunal: 19
(a) may make any other appropriate order under this Act or enabling 20
legislation as it could have made when the matter was originally 21
determined, or 22
(b) may refuse to make such an order. 23
(5) This clause does not apply if: 24
(a) the operation of an order has been suspended, or 25
(b) the order is or has been the subject of an internal appeal. 26
9 Assistance to Tribunal 27
(1) The Tribunal or principal registrar may, in relation to any proceedings for the 28
exercise of a Division function, request a report or other assistance from the 29
Commissioner for Fair Trading. 30
(2) This clause does not limit the ability of the Tribunal to obtain reports or 31
assistance from other persons or bodies. 32
10 Proceedings causing disadvantage 33
(1) The Tribunal may exercise the powers conferred by this clause if the Tribunal 34
is of the opinion that a party in any proceedings for the exercise of a Division 35
function is conducting the proceedings in such a way that unreasonably 36
disadvantages another party in the proceedings by any conduct (including by 37
failing to comply with an order or direction of the Tribunal). 38
(2) The Tribunal may: 39
(a) if the party causing the disadvantage is the applicant--order that the 40
proceedings (or part of the proceedings) be dismissed or struck out, or 41
(b) if the party causing the disadvantage is not the applicant: 42
(i) determine the proceedings (or part of the proceedings) in favour 43
of the applicant and make any appropriate orders, or 44
(ii) order that the party causing the disadvantage be struck out of the 45
proceedings (or part of the proceedings). 46
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(3) Before making any order under subclause (2) against a party, the Tribunal is 1
to have regard to the following: 2
(a) the extent to which the party is familiar with the procedures of the 3
Tribunal, 4
(b) the party's capacity to understand, and act on, a direction of the 5
Tribunal, 6
(c) whether the party suffers from a disability, 7
(d) whether the party is acting deliberately in failing to comply with the 8
Tribunal's directions. 9
(4) The provisions of this clause are in addition to, and do not limit, the provisions 10
of section 55 (Dismissal of proceedings) of this Act. 11
11 Costs in relation to certain retail lease proceedings 12
For the avoidance of doubt, section 60 of this Act does not apply to costs of a 13
review under section 32A (1) of the Retail Leases Act 1994. 14
Part 6 Appeals 15
12 Limitations on internal appeals against Division decisions 16
(1) An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an 17
internal appeal against a Division decision only if the Appeal Panel is satisfied 18
the appellant may have suffered a substantial miscarriage of justice because: 19
(a) the decision of the Tribunal under appeal was not fair and equitable, or 20
(b) the decision of the Tribunal under appeal was against the weight of 21
evidence, or 22
(c) significant new evidence has arisen (being evidence that was not 23
reasonably available at the time the proceedings under appeal were 24
being dealt with). 25
Note. Under section 80 of this Act, a party to proceedings in which a Division decision 26
that is an internally appealable decision is made may appeal against the decision on a 27
question of law as of right. The leave of the Appeal Panel is required for an internal 28
appeal on any other grounds. 29
(2) Despite section 80 (2) (b) of this Act, an internal appeal against a Division 30
decision may only be made on a question of law (as of right) and not on any 31
other grounds (even with leave) if: 32
(a) the appellant is a corporation and the appeal relates to a dispute in 33
respect of which the Tribunal at first instance had jurisdiction because 34
of the operation of Schedule 3 to the Credit (Commonwealth Powers) 35
Act 2010, or 36
(b) the appeal is an appeal against an order of the Tribunal for the 37
termination of a tenancy under the Residential Tenancies Act 2010 and 38
a warrant of possession has been executed in relation to that order. 39
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[41] Schedule 5 1
Omit the Schedule. Insert instead: 2
Schedule 5 Occupational Division 3
Part 1 Interpretation 4
1 Definitions 5
(1) In this Schedule: 6
Division decision means a decision of the Tribunal in exercise of a Division 7
function. 8
Division function means a function of the Tribunal allocated to the Division 9
by this Schedule. 10
Division Head means the Division Head of the Division. 11
Division member means a member who is assigned to the Division. 12
substantive Division function means a Division function other than: 13
(a) a Division function exercised in connection with the making of an 14
ancillary or interlocutory decision of the Tribunal, or 15
(b) a Division function exercised by a registrar. 16
the Division means the Occupational Division of the Tribunal. 17
(2) Except as otherwise provided by this Schedule, a provision of this Schedule 18
that provides for, or limits or excludes, an appeal against a decision of the 19
Tribunal that is made for the purposes of specified legislation (or a specified 20
provision of legislation) is taken to extend to any ancillary or interlocutory 21
decision of the Tribunal in the proceedings in which that decision was made. 22
Part 2 Composition of Division 23
2 Division members 24
The Division is to be composed of the following members: 25
(a) the Division Head, 26
(b) such other members as may be assigned to the Division by or under this 27
Act. 28
3 Appointment of Division Head 29
The Minister may not recommend the appointment of a person as the Division 30
Head unless the Minister certifies that the Minister has consulted with the 31
Minister for Health about the appointment. 32
Part 3 Functions of Division 33
4 Functions allocated to Division 34
(1) The functions of the Tribunal in relation to the following legislation are 35
allocated to the Division: 36
Aboriginal Land Rights Act 1983 37
Architects Act 2003 38
Building Professionals Act 2005 39
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Commercial Agents and Private Inquiry Agents Act 2004 1
Conveyancers Licensing Act 2003 (except in relation to Division 3 of Part 4 of 2
that Act) 3
Health Care Complaints Act 1993 4
Health Practitioner Regulation National Law (NSW) 5
Legal Profession Act 2004 6
Local Government Act 1993 7
Occupational Licensing National Law (NSW) 8
Passenger Transport Act 1990 9
Public Notaries Act 1997 10
Security Industry Act 1997 11
Surveying and Spatial Information Act 2002 12
Tow Truck Industry Act 1998 13
Valuers Act 2003 14
Veterinary Practice Act 2003 15
Wool, Hide and Skin Dealers Act 2004 16
Note. The functions allocated by this subclause include the function of exercising the 17
administrative review jurisdiction of the Tribunal in relation to the specified legislation. 18
(2) Without limiting subclause (1), the function of exercising the administrative 19
review jurisdiction of the Tribunal in relation to the following legislation is 20
also allocated to the Division: 21
Fair Trading Act 1987 22
Home Building Act 1989 23
Motor Dealers Act 1974 24
Motor Dealers and Repairers Act 2013 25
Motor Vehicle Repairs Act 1980 26
Pawnbrokers and Second-hand Dealers Act 1996 27
Property, Stock and Business Agents Act 2002 28
(3) The functions allocated to the Division by subclauses (1) and (2) include: 29
(a) any functions under the provisions of the Licensing and Registration 30
(Uniform Procedures) Act 2002 that confer administrative review 31
jurisdiction on the Tribunal to the extent that those provisions are 32
applied by legislation referred to in those subclauses to decisions made 33
under that legislation, and 34
(b) any functions conferred or imposed on the Tribunal by statutory rules 35
made under legislation referred to in those subclauses, and 36
(c) any functions conferred or imposed on the Tribunal by or under this Act 37
or enabling legislation in connection with the conduct or resolution of 38
proceedings for the exercise of functions allocated by those subclauses 39
(including the making of ancillary and interlocutory decisions of the 40
Tribunal), and 41
(d) in relation to the exercise of administrative review jurisdiction in this 42
Division--any functions conferred or imposed on the Tribunal by or 43
under the Administrative Decisions Review Act 1997 in connection with 44
the exercise of such jurisdiction. 45
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Part 4 Special provisions relating to occupations 1
Note. If special constitution requirements for the exercise of a Division function are not specified by 2
the following provisions, the Tribunal may be constituted in accordance with the general provisions of 3
section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions 4
of that section in connection with the exercise of Division functions for the purposes of making 5
ancillary or interlocutory decisions of the Tribunal. 6
Division 1 Architects 7
5 Division functions under Architects Act 2003 8
(1) The Tribunal, when exercising its substantive Division functions for the 9
purposes of the Architects Act 2003, is to be constituted by 3 Division 10
members as follows: 11
(a) 1 member who is an Australian lawyer, 12
(b) 1 member who is an architect but not an Australian lawyer, 13
(c) 1 general member who is neither an architect nor an Australian lawyer. 14
(2) In this clause: 15
architect has the same meaning as in the Architects Act 2003. 16
Division 2 Councillors and designated persons 17
6 Constitution of Tribunal for Aboriginal Land Rights Act 1983 and Local 18
Government Act 1993 19
(1) Except as provided by subclause (2), the Tribunal, when exercising its 20
substantive Division functions for the purposes of the Aboriginal Land Rights 21
Act 1983 or Local Government Act 1993, is to be constituted by one Division 22
member who is an Australian lawyer of at least 7 years' standing. 23
(2) The Tribunal, when exercising its substantive Division functions for the 24
purposes of section 329 of the Local Government Act 1993, is to be constituted 25
by 3 Division members. 26
(3) However, a Division member is not qualified to participate in proceedings for 27
the exercise of substantive Division functions for the purposes of the 28
Aboriginal Land Rights Act 1983 or Local Government Act 1993 if: 29
(a) in the case of the exercise of functions for the purposes of the Aboriginal 30
Land Rights Act 1983--the member has, within 12 months before 31
participation, been an officer or a member of staff of an Aboriginal Land 32
Council or a councillor (within the meaning of that Act), or 33
(b) in the case of the exercise of functions for the purposes of the Local 34
Government Act 1993--the member has, within 12 months before 35
participation, been a councillor or employee of a council (within the 36
meaning of that Act). 37
7 Privilege concerning answers and documents 38
(1) This clause applies to proceedings for the exercise of Division functions for 39
the purposes of the Aboriginal Land Rights Act 1983 or Local Government Act 40
1993 despite section 46 of this Act. 41
(2) A witness summoned to attend or appearing before the Tribunal at a hearing 42
for proceedings to which this clause applies is not excused from answering any 43
question or producing any document or other thing: 44
(a) on the ground that the answer or production may incriminate the 45
witness, or 46
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(b) on any other ground of privilege, or 1
(c) on the ground of a duty of secrecy or other restriction on disclosure, or 2
(d) on any other ground. 3
(3) An answer made, or document or other thing produced, by a witness at a 4
hearing before the Tribunal is not (except as otherwise provided by this clause) 5
admissible in evidence against the witness in any civil or criminal proceedings 6
or in any disciplinary proceedings. 7
(4) Nothing in this clause makes inadmissible: 8
(a) any answer, document or other thing in any civil or criminal 9
proceedings or in any disciplinary proceedings if the witness does not 10
object to giving the answer or producing the document or other thing 11
irrespective of the provisions of subclause (1), or 12
(b) any document in any civil proceedings for or in respect of any right or 13
liability conferred or imposed by the document or other thing. 14
(5) If: 15
(a) an Australian legal practitioner or other person is required to answer a 16
question or produce a document or other thing at a hearing before the 17
Tribunal, and 18
(b) the answer to the question would disclose, or the document or other 19
thing contains, a privileged communication passing between the 20
practitioner (in his or her capacity as an Australian legal practitioner) 21
and a person for the purpose of providing or receiving legal professional 22
services in relation to the appearance, or reasonably anticipated 23
appearance, of a person at a hearing before the Tribunal, 24
the Australian legal practitioner or other person is entitled to refuse to comply 25
with the requirement, unless the privilege is waived by a person having 26
authority to do so. 27
Division 3 Health practitioners 28
8 Definitions 29
In this Division: 30
health practitioner has the same meaning as in the National Law, and includes 31
a student within the meaning of that Law. 32
Health Practitioner Division List--see clause 10. 33
National Law means the Health Practitioner Regulation National Law 34
(NSW). 35
9 Certain objectives and principles under National Law to be applied 36
(1) The Tribunal, when exercising its Division functions for the purposes of the 37
National Law, is under a duty to observe the objectives and principles referred 38
to in sections 3 and 3A of the National Law. 39
(2) The provisions of this clause are in addition to, and do not limit, the provisions 40
of section 36 (5) of this Act. 41
10 Establishment of Health Practitioner Division List 42
(1) A Health Practitioner Division List is established on the establishment day as 43
a Division List for the Division. 44
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(2) Except as provided by subclause (3), all proceedings involving the exercise of 1
a Division function in relation to the National Law are to be entered and 2
managed in the Health Practitioner Division List. 3
(3) Proceedings involving the exercise of the administrative review jurisdiction of 4
the Tribunal are not to be entered and managed in the Health Practitioner 5
Division List. 6
Note. See clause 13 of Schedule 5F to the National Law. 7
11 List Manager of Health Practitioner Division List 8
(1) A Division member is to be designated as the List Manager for the Health 9
Practitioner Division List, but only on the recommendation of the Minister for 10
Health. 11
(2) A Division member is qualified to be designated as the List Manager for the 12
Health Practitioner Division List only if the member is an Australian lawyer 13
of at least 7 years' standing. 14
(3) The functions of the List Manager for the Health Practitioner Division List are: 15
(a) to manage the proceedings that are entered in the List, and 16
(b) to give directions concerning the constitution of the Tribunal for 17
proceedings entered in the List (subject to any direction of the President 18
or Division Head of the Division) as if the function of constituting the 19
Tribunal for such proceedings had been delegated by the President to 20
the List Manager under clause 12 of Schedule 2, and 21
(c) to exercise such other functions as are conferred or imposed on the List 22
Manager by or under this Act or the National Law. 23
(4) The List Manager for the Health Practitioner Division List may delegate any 24
of the List Manager's functions (other than this power of delegation, but 25
including functions relating to the management of proceedings involving any 26
particular class of health practitioner) to another Division member who is an 27
Australian lawyer of at least 7 years' standing. 28
12 Appointment and assignment of Division members where required under 29
National Law 30
The President must: 31
(a) appoint a person as an occasional member for particular proceedings 32
entered in the Health Practitioner Division List if that person has been 33
selected for participation in the proceedings in accordance with any 34
applicable procedures specified by or under the National Law, and 35
(b) assign a term member to the Division to participate in a particular class 36
of proceedings entered in the Health Practitioner Division List if the 37
person has been selected for participation in that class of proceedings in 38
accordance with any applicable procedures specified by or under the 39
National Law. 40
13 Constitution of Tribunal for proceedings entered in Health Practitioner 41
Division List 42
(1) The Tribunal, when exercising a Division function in proceedings that are 43
entered in the Health Practitioner Division List, is to be constituted (and, 44
where necessary, reconstituted) in accordance with any applicable 45
requirements specified by or under the National Law for the constitution of the 46
Tribunal in proceedings of the kind concerned. 47
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(2) Nothing in subclause (1) limits the exercise by the List Manager for the Health 1
Practitioner Division List (or a delegate of the List Manager) of any of the 2
functions of the List Manager. 3
Note. The National Law also makes special provision with respect to certain practice 4
and procedure for proceedings entered in the Health Practitioner Division List. 5
14 Effect of amendments to Schedule by regulations 6
(1) This clause applies to any amendment (a relevant amendment) made to any of 7
the other provisions of this Schedule by regulations made for the purposes of 8
section 17 (4) of this Act. 9
(2) A relevant amendment is taken not to apply in relation to: 10
(a) proceedings entered in the Health Practitioner Division List, or 11
(b) the exercise of Division functions in relation to such proceedings, or 12
(c) appeals against Division decisions made in such proceedings. 13
(3) The provisions of this Schedule continue to apply in relation to such 14
proceedings, functions and appeals as if the relevant amendment had not been 15
made. 16
(4) Nothing in this clause affects that application of amendments made to this 17
Schedule by an Act. 18
Division 4 Lawyers and public notaries 19
15 Definitions 20
In this Division: 21
Bar Association means the New South Wales Bar Association. 22
barrister has the same meaning as in the Legal Profession Act 2004. 23
Commissioner means the Legal Services Commissioner appointed under 24
Part 7.3 of the Legal Profession Act 2004. 25
complaint means a complaint under Chapter 4 of the Legal Profession Act 26
2004. 27
Council means the Council of the Bar Association or the Council of the Law 28
Society. 29
Law Society means the Law Society of New South Wales. 30
senior judicial officer means any of the following: 31
(a) a Judge of the Supreme Court, 32
(b) a Judge of the District Court, 33
(c) a judicial officer of any other court or tribunal having an equivalent 34
status (for the purposes of Part 9 of the Constitution Act 1902) to the 35
Supreme Court or District Court. 36
solicitor has the same meaning as in the Legal Profession Act 2004. 37
16 Designation of List Manager for Division List 38
The President may not designate a Division member to be the List Manager of 39
a Division List for the Division to which proceedings for the purposes of the 40
Legal Profession Act 2004 or Public Notaries Act 1997 are to be entered unless 41
the President has consulted with both the Bar Association and Law Society 42
about the designation. 43
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17 Qualifications of Division member to participate in proceedings 1
(1) This clause sets out the qualifications that Division members must have to 2
participate in the exercise of Division functions for the purposes of the Legal 3
Profession Act 2004 and Public Notaries Act 1997. 4
(2) A Division member has a judicial qualification for the purposes of this 5
Division if: 6
(a) the member is a Deputy President who has been designated by the 7
President as having that qualification, or 8
(b) the member is a current or former senior judicial officer. 9
(3) A Division member has a professional qualification for the purposes of this 10
Division if the member is a barrister or solicitor who has been designated by 11
the President as having that qualification. 12
(4) The President may, by written instrument, designate a Division member as 13
having a judicial qualification or professional qualification only if: 14
(a) in the case of a designation of a Deputy President as having a judicial 15
qualification--the President has consulted with both the Bar 16
Association and Law Society about the designation, or 17
(b) in the case of a designation of a Division member as having a 18
professional qualification--the President has consulted with the Bar 19
Association (in the case of a barrister) or the Law Society (in the case 20
of a solicitor) about the designation. 21
(5) The President may revoke a designation only if the President has consulted 22
with the same body or bodies with which the President was required to consult 23
in making the designation. 24
18 Division functions under Legal Profession Act 2004 25
(1) The Tribunal, when conducting a hearing into a complaint for the purposes of 26
the Legal Profession Act 2004, must be constituted with Division members in 27
accordance with whichever of the following constitutions the President 28
determines as being appropriate for the particular case: 29
(a) in the case of a complaint against a barrister: 30
(i) one member with a judicial qualification, one member with a 31
professional qualification who is a barrister and one general 32
member, or 33
(ii) 2 members with a professional qualification who are barristers 34
and one general member, 35
(b) in the case of a complaint against a solicitor: 36
(i) one member with a judicial qualification, one member with a 37
professional qualification who is a solicitor and one general 38
member, or 39
(ii) 2 members with a professional qualification who are solicitors 40
and one general member, 41
(c) in the case of a complaint against an Australian lawyer who is neither a 42
barrister nor a solicitor--any constitution specified in paragraph (a) 43
or (b). 44
(2) The Tribunal, when exercising any other of its Division functions for the 45
purposes of the Legal Profession Act 2004 (including making ancillary or 46
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interlocutory decisions of the Tribunal), is to be constituted by any one or more 1
of the following Division members: 2
(a) a member with a judicial qualification, 3
(b) a member with a professional qualification. 4
19 Division functions under Public Notaries Act 1997 5
The Tribunal, when exercising its substantive Division functions for the 6
purposes of the application of Chapter 4 of the Legal Profession Act 2004 7
under section 14 of the Public Notaries Act 1997, is to be constituted by 8
Division members as follows: 9
(a) in the case of a complaint against a public notary who is a barrister: 10
(i) one member who is an Australian lawyer of at least 7 years' 11
standing, and 12
(ii) one member with a professional qualification who is a barrister, 13
and 14
(iii) one general member, 15
(b) in the case of a complaint against a public notary who is a solicitor: 16
(i) one member who is an Australian lawyer of at least 7 years' 17
standing, and 18
(ii) one member with a professional qualification who is a solicitor, 19
and 20
(iii) one general member. 21
20 Rules of evidence 22
Despite section 38 of this Act, the Tribunal is to observe the rules of evidence 23
in proceedings in exercise of a Division function for the purposes of the Legal 24
Profession Act 2004 or Public Notaries Act 1997 concerning a question of 25
professional misconduct. 26
21 Parties 27
(1) The following persons are entitled to appear at a hearing conducted by the 28
Tribunal for the exercise of a Division function for the purposes the Legal 29
Profession Act 2004: 30
(a) in the case of an application under section 75 of that Act for an 31
administrative review--the applicant or the holder of an Australian 32
practising certificate who applied for the review, 33
(b) in the case of a complaint--the Australian legal practitioner against 34
whom the complaint has been made, 35
(c) the relevant Council, 36
(d) the Commissioner, 37
(e) the Attorney General. 38
(2) The complainant for a complaint is entitled to appear at the hearing in respect 39
of the following aspects: 40
(a) those aspects of the hearing that relate to a request by the complainant 41
for a compensation order, 42
(b) without limiting paragraph (a), those aspects of the hearing that relate to 43
a review of a decision made under section 540 (Summary conclusion of 44
complaint procedure by caution, reprimand, compensation order or 45
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imposition of conditions) of the Legal Profession Act 2004 to reprimand 1
or make a compensation order against the practitioner, 2
(c) other aspects of the hearing, but only if the Tribunal grants leave to the 3
complainant to appear in respect of them. 4
(3) The Tribunal may grant leave to any other person to appear at the hearing if 5
satisfied that it is appropriate for that person to appear at the hearing. 6
(4) Despite section 45 of this Act (and without limiting clause 27), a person who 7
is entitled to appear at the hearing, or who is granted leave to appear at the 8
hearing, may: 9
(a) appear personally, or 10
(b) be represented by an Australian legal practitioner without requiring the 11
leave of the Tribunal, or 12
(c) be represented by any other person with the leave of the Tribunal 13
granted under section 45 of this Act. 14
(5) Any person who appears at a hearing (otherwise than as a witness) is taken to 15
be a party to the proceedings concerned. 16
(6) In this clause: 17
relevant Council: 18
(a) in relation to an application under section 75 of the Legal Profession Act 19
2004--means the Council that made the decision under review or, if the 20
decision under review was made by the Commissioner, the appropriate 21
Council within the meaning of that Act, or 22
(b) in relation to a complaint--has the same meaning as in Chapter 4 of the 23
Legal Profession Act 2004. 24
22 Hearings into conduct to be conducted in public 25
(1) All hearings conducted by the Tribunal into allegations of unsatisfactory 26
professional conduct or professional misconduct for the purposes of the Legal 27
Profession Act 2004 are to be open to the public, unless the Tribunal decides 28
to make an order under section 49 of this Act. 29
(2) In deciding whether to make an order under section 49 or 64 of this Act (and 30
without affecting the generality of either section), the Tribunal is to have 31
regard to the desirability of protecting from disclosure any material that is the 32
subject of client legal privilege or any duty of confidentiality. 33
(3) Without limiting the generality of section 64 of this Act: 34
(a) the Tribunal may, at any stage of the proceedings for the purposes of 35
Part 4.8 of the Legal Profession Act 2004, make orders regarding 36
non-disclosure of information obtained under or for the purposes of that 37
Part from or about a client of an Australian legal practitioner where the 38
information is the subject of client legal privilege or any duty of 39
confidentiality, and 40
(b) the orders may apply to persons generally or to specified persons. 41
(4) This clause has effect whether or not the client has waived the client legal 42
privilege or the benefit of the duty of confidentiality, and whether or not the 43
information was obtained before or after the proceedings were commenced. 44
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23 Costs consequent of adverse conduct findings 1
(1) Despite section 60 of this Act, the Tribunal must make orders requiring an 2
Australian legal practitioner whom it has found to have engaged in 3
unsatisfactory professional conduct or professional misconduct to pay costs 4
(including costs of the Commissioner, a Council and the complainant), unless 5
the Tribunal is satisfied that exceptional circumstances exist. 6
(2) The Tribunal may make orders requiring an Australian legal practitioner 7
whom it has not found to have engaged in unsatisfactory professional conduct 8
or professional misconduct to pay costs (including costs of the Commissioner, 9
a Council and the complainant), if satisfied that: 10
(a) the sole or principal reason why the proceedings were commenced in 11
the Tribunal was a failure of the practitioner to co-operate with the 12
Commissioner or a Council, or 13
(b) the practitioner has contravened an order of the Tribunal made in the 14
course of the proceedings concerned, or 15
(c) there is some other reason warranting the making of an order in the 16
particular circumstances. 17
(3) The Tribunal may make orders requiring payment of an Australian legal 18
practitioner's costs from the Public Purpose Fund (within the meaning of the 19
Legal Profession Act 2004), but may do so only if satisfied that the practitioner 20
did not engage in unsatisfactory professional conduct or professional 21
misconduct and the Tribunal considers that special circumstances warrant the 22
making of the orders. The Tribunal is to have regard to the length and 23
complexity of the proceedings when making a determination under this 24
subclause. 25
(4) The Tribunal may make orders requiring an Australian legal practitioner in 26
respect of whom proceedings are pending before the Tribunal to pay costs on 27
an interlocutory or interim basis. 28
(5) The Tribunal may make orders requiring a person to pay costs (including, as 29
appropriate, the costs of the Commissioner, a Council, the complainant and the 30
Australian legal practitioner against whom the complaint was made), if 31
satisfied that: 32
(a) the person, whether before or during the proceedings, failed to produce 33
or delayed in producing any document required or requested to be 34
produced, and 35
(b) the failure or delay contributed to delay in commencing, conducting or 36
concluding the proceedings in such a way as to warrant the making of 37
the orders. 38
(6) The Tribunal may fix the amount of costs itself or order that the amount of 39
costs be assessed by a costs assessor under Part 3.2 of the Legal Profession Act 40
2004. 41
(7) An order for costs may specify the terms on which costs must be paid. 42
Division 5 Security activities 43
24 Security Industry Act 1997 44
The Tribunal, when exercising its substantive Division functions for the 45
purposes of section 29 of the Security Industry Act 1997, is to be constituted 46
by 1 Division member who is an Australian lawyer. 47
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Division 6 Veterinary practitioners 1
25 Division functions under Veterinary Practice Act 2003 2
(1) The Tribunal, when exercising its substantive Division functions for the 3
purposes of the Veterinary Practice Act 2003, is to be constituted by 3 4
Division members as follows: 5
(a) 1 member who is an Australian lawyer, 6
(b) 1 member who is a veterinary practitioner but not an Australian lawyer, 7
(c) 1 general member who is neither a veterinary practitioner nor an 8
Australian lawyer. 9
(2) In this clause: 10
veterinary practitioner has the same meaning as in the Veterinary Practice Act 11
2003. 12
26 Costs in veterinary practitioner proceedings 13
(1) Despite section 60 of this Act, the Tribunal must order costs against a 14
veterinary practitioner in proceedings for the purposes of the Veterinary 15
Practice Act 2003 in any of the following circumstances unless the Tribunal is 16
satisfied that exceptional circumstances exist: 17
(a) if the Tribunal affirms a disciplinary finding against a practitioner in 18
proceedings for the purposes of section 48 of the Veterinary Practice 19
Act 2003, 20
(b) if the Tribunal considers that the matter of the complaint against a 21
veterinary practitioner has been proved, or has not been proved to the 22
satisfaction of the Tribunal, but the Tribunal nevertheless considers that 23
the conduct of the veterinary practitioner was sufficiently unacceptable 24
to warrant the making of the complaint. 25
(2) This clause does not limit the power of the Tribunal to order costs in 26
proceedings for a Division decision for the purposes of that Act in other 27
circumstances. 28
Part 5 Special practice and procedure for Division 29
generally 30
27 Legal representation 31
Despite section 45 of this Act, a party to proceedings for the exercise of a 32
Division function is entitled to be represented by an Australian legal 33
practitioner without requiring the leave of the Tribunal. 34
Note. The leave of the Tribunal will, however, be required under section 45 of this Act 35
in other cases. 36
28 Statement of reasons of Tribunal need not contain confidential information 37
concerning certain professionals 38
(1) The Tribunal is not required to include confidential information in any 39
statement of reasons it gives under this Act for any of the following Division 40
decisions: 41
(a) a decision for the purposes of the Architects Act 2003 concerning an 42
architect or former architect, 43
(b) a decision for the purposes of the Building Professionals Act 2005 44
concerning an accreditation holder or former accreditation holder, 45
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(c) a decision for the purposes of the Health Practitioner Regulation 1
National Law (NSW) concerning a health practitioner or former health 2
practitioner, 3
(d) a decision for the purposes of the Legal Profession Act 2004 concerning 4
an Australian lawyer or former Australian lawyer, 5
(e) a decision for the purposes of the Veterinary Practice Act 2003 6
concerning a veterinary practitioner or former veterinary practitioner. 7
(2) If a statement would be false or misleading if it did not include the confidential 8
information, the Tribunal is not required to provide the statement. 9
(3) When confidential information is not included in the statement of a decision 10
provided to a person or the statement is not provided to a person because of 11
this clause, the Tribunal must give a confidential information notice to the 12
person. 13
(4) A confidential information notice is a notice that indicates that confidential 14
information is not included or that the statement will not be provided (as 15
appropriate) and gives the reasons for this. The notice must be in writing and 16
must be given within one month after the decision is made. 17
(5) This clause does not affect the power of a court to make an order for the 18
discovery of documents or to require the giving of evidence or the production 19
of documents to a court. 20
(6) In this clause: 21
confidential information means information that: 22
(a) has not previously been published or made available to the public when 23
a written statement of a decision to which it is or may be relevant is 24
being prepared, and 25
(b) relates to the personal or business affairs of a person, other than a person 26
to whom the Tribunal is required (or would, but for this clause, be 27
required) to provide a written statement of a decision, and 28
(c) is information: 29
(i) that was supplied in confidence, or 30
(ii) the publication of which would reveal a trade secret, or 31
(iii) that was provided in compliance with a duty imposed by any 32
legislation, or 33
(iv) the provision of which by the Tribunal would be in breach of any 34
legislation. 35
Part 6 Appeals 36
29 Certain profession decisions to be appealed directly to Supreme Court or Land 37
and Environment Court 38
(1) Profession decisions not internally appealable 39
Despite section 32 of this Act, each of the following Division decisions (a 40
profession decision) is not an internally appealable decision for the purposes 41
of an internal appeal: 42
(a) a decision for the purposes of the Aboriginal Land Rights Act 1983 other 43
than: 44
(i) a decision for the purposes of section 198 of that Act not to 45
conduct proceedings into a complaint, or 46
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(ii) a decision for the purposes of section 199 of that Act to determine 1
proceedings into a complaint without a hearing, 2
(b) a decision for the purposes of the Architects Act 2003, 3
(c) a decision for the purposes of the Building Professionals Act 2005, 4
(d) a decision for the purposes of the Health Practitioner Regulation 5
National Law (NSW) (other than a decision for the purposes of clause 13 6
of Schedule 5F to that Law), 7
(e) a decision for the purposes of the Legal Profession Act 2004, 8
(f) a decision for the purposes of the Local Government Act 1993 other 9
than: 10
(i) a decision for the purposes of section 469 of that Act not to 11
conduct proceedings into a complaint, or 12
(ii) a decision for the purposes of section 470 of that Act to determine 13
proceedings into a complaint without a hearing, 14
(g) a decision for the purposes of the Surveying and Spatial Information Act 15
2002, 16
(h) a decision for the purposes of the Veterinary Practice Act 2003. 17
Note. A Division decision other than a profession decision that is a general decision or 18
administrative review decision may be subject to an internal appeal. See section 32 and 19
Division 2 of Part 6 of the Act. 20
(2) Right to appeal to Supreme Court or Land and Environment Court 21
However, a party to proceedings in which a profession decision is made may 22
appeal against the decision in accordance with this clause to: 23
(a) in the case of an order for the purposes of Division 3 of Part 5 or 24
Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a 25
vacancy in an office--the Land and Environment Court, and 26
(b) in the case of any other decision--the Supreme Court. 27
(3) Despite subclause (2), an appeal does not lie with respect to any of the 28
following Division decisions: 29
(a) a decision made for the purposes of section 385 (2) of the Legal 30
Profession Act 2004, 31
(b) any other decision of a kind prescribed by the regulations made for the 32
purposes of that Act. 33
(4) Basis or grounds for appeal 34
An appeal to a court under this clause: 35
(a) in the case of an appeal against a decision for the purposes of the Legal 36
Profession Act 2004--is an appeal to which section 75A of the Supreme 37
Court Act 1970 applies and, accordingly, is by way of a rehearing rather 38
than a new (de novo) hearing, and 39
(b) in the case of any other appeal (a non-lawyer appeal)--may be made as 40
of right on any question of law, or with the leave of the court, on any 41
other grounds. 42
Note. See also section 84 (Practice and procedure for appeals to courts under this 43
Act). 44
(5) Subclause (4) (a) does not affect the provisions of section 75A of the Supreme 45
Court Act 1970 relating to the receipt of evidence by the Supreme Court. 46
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(6) Leave required in certain cases 1
Despite subclauses (2)-(5), an appeal does not lie to a court under this clause 2
against any of the following decisions except by leave of the court: 3
(a) an interlocutory decision of the Tribunal, 4
(b) a decision made with the consent of the parties, 5
(c) a decision as to costs. 6
(7) Non-lawyer appeals 7
The court in a non-lawyer appeal may: 8
(a) decide to deal with the appeal by way of a new hearing if it considers 9
that the grounds for the appeal warrant a new hearing, and 10
(b) permit such fresh evidence, or evidence in addition to or in substitution 11
for the evidence received by the Tribunal at first instance, to be given in 12
the new hearing as it considers appropriate in the circumstances. 13
(8) In determining a non-lawyer appeal, the court may make such orders as it 14
considers appropriate in light of its decision on the appeal, including (but not 15
limited to) orders that provide for any one or more of the following: 16
(a) the decision under appeal to be confirmed, affirmed or varied, 17
(b) the decision under appeal to be quashed or set aside, 18
(c) the decision under appeal to be quashed or set aside and for another 19
decision to be substituted for it, 20
(d) the whole or any part of the case to be reconsidered by the Tribunal at 21
first instance, either with or without further evidence, in accordance 22
with the directions of the court. 23
(9) Effect of appeal on profession decision 24
Subject to any interlocutory order made by the court concerned, an appeal 25
under this clause does not affect the operation of the Division decision under 26
appeal or prevent the taking of action to implement the decision. 27
[42] Schedule 6 28
Omit the Schedule. Insert instead: 29
Schedule 6 Guardianship Division 30
Part 1 Interpretation 31
1 Definitions 32
(1) In this Schedule: 33
Division decision means a decision of the Tribunal in exercise of a Division 34
function. 35
Division function means a function of the Tribunal allocated to the Division 36
by this Schedule. 37
Division Head means the Division Head of the Division. 38
Division member means a member who is assigned to the Division. 39
substantive Division function means a Division function other than: 40
(a) a Division function exercised in connection with the making of an 41
ancillary or interlocutory decision of the Tribunal, or 42
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(b) a Division function exercised by a registrar. 1
the Division means the Guardianship Division of the Tribunal. 2
(2) For the purposes of this Schedule: 3
(a) a Division member has a professional qualification if the member is a 4
person (such as a medical practitioner, psychologist or social worker) 5
who has experience in assessing or treating persons to whom the 6
Guardianship Act 1987 relates, or 7
(b) a Division member has a community based qualification if the member 8
is a person who has experience with persons to whom the Guardianship 9
Act 1987 relates. 10
(3) A Division member is taken to have a professional qualification or community 11
based qualification for the purposes of the Schedule if the President has, by 12
written instrument, designated the member as having that qualification. 13
Part 2 Composition of Division 14
2 Division members 15
The Division is to be composed of the following members: 16
(a) the Division Head, 17
(b) such other members as may be assigned to the Division by or under this 18
Act. 19
Part 3 Functions of Division 20
3 Functions allocated to Division 21
(1) The functions of the Tribunal in relation to the following legislation are 22
allocated to the Division: 23
Children and Young Persons (Care and Protection) Act 1998 24
Guardianship Act 1987 25
NSW Trustee and Guardian Act 2009 26
Powers of Attorney Act 2003 27
(2) The functions allocated to the Division by subclause (1) include: 28
(a) any functions conferred or imposed on the Tribunal by statutory rules 29
made under legislation referred to in that subclause, and 30
(b) any functions conferred or imposed on the Tribunal by or under this Act 31
or enabling legislation in connection with the conduct or resolution of 32
proceedings for the exercise of functions allocated by that subclause 33
(including the making of ancillary and interlocutory decisions of the 34
Tribunal). 35
(3) However, the functions allocated to the Division do not include any functions 36
of the Tribunal involving the exercise of its administrative review jurisdiction. 37
Note. Functions that are not expressly allocated to this Division or another Division are 38
allocated to the Administrative and Equal Opportunity Division. See clause 3 (1) of 39
Schedule 3. 40
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Part 4 Special constitution requirements for exercise of 1
substantive Division functions 2
Note. If special constitution requirements for the exercise of a Division function are not specified by 3
the following provisions, the Tribunal may be constituted in accordance with the general provisions of 4
section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions 5
of that section in connection with the exercise of Division functions for the purposes of making 6
ancillary or interlocutory decisions of the Tribunal. 7
4 Constitution of Tribunal 8
(1) The Tribunal, when exercising its substantive Division functions, is to be 9
constituted by 3 Division members as follows: 10
(a) 1 member who is an Australian lawyer, 11
(b) 1 member with a professional qualification, 12
(c) 1 member with a community based qualification. 13
(2) Despite subclause (1), the Tribunal may be constituted by 1 or 2 Division 14
members in exercising its substantive Division functions for the purposes of 15
the following provisions of the Guardianship Act 1987: 16
(a) Division 4 (Assessment and review of guardianship orders) of Part 3, 17
(b) Division 2 (Review and revocation of financial management orders) of 18
Part 3A, 19
(c) Division 3 (Review of appointment of manager) of Part 3A, 20
(d) section 36 (Who may give consent) in respect of giving consent to the 21
carrying out of minor treatment or major treatment (but not special 22
treatment or treatment in the course of a clinical trial), 23
(e) Part 5A (Reciprocal arrangements). 24
(3) When the Tribunal is constituted by 2 members, each member must have 25
qualifications (of the kind referred to in clause 1 (2)) that are different to each 26
other. 27
(4) In this clause, clinical trial, major treatment, minor treatment and special 28
treatment have the same meanings as in Part 5 of the Guardianship Act 1987. 29
Part 5 Special practice and procedure 30
5 Certain principles under Guardianship Act 1987 to be applied 31
(1) The Tribunal, when exercising its Division functions for the purposes of the 32
Guardianship Act 1987 in relation to persons who have disabilities, is under a 33
duty to observe the principles referred to in section 4 of that Act. 34
Note. Section 4 of the Guardianship Act 1987 sets out principles that everyone must 35
observe when exercising functions under that Act with respect to persons with 36
disabilities. 37
(2) The provisions of this clause are in addition to, and do not limit, the provisions 38
of section 36 (5) of this Act. 39
6 Hearing required except for making of ancillary or interlocutory decisions 40
(1) Despite section 50 of this Act, the Tribunal is required to hold a hearing in 41
proceedings that involve the exercise of a substantive Division function. 42
(2) However, the Tribunal may dispense with a hearing for the purposes of 43
making an ancillary or interlocutory decision of the Tribunal. 44
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7 Tribunal may join parties 1
(1) The Tribunal may make an order under section 44 (1) of this Act joining a 2
person as a party to proceedings for the exercise of a Division function if, in 3
the opinion of the Tribunal, the person should be a party to the proceedings 4
(whether because of the person's concern for the welfare of the person the 5
subject of the proceedings or for any other reason). 6
(2) If the Tribunal joins a person as a party to any such proceedings, the Tribunal 7
must, as soon as practicable, notify the applicant (if any) for the proceedings 8
accordingly. 9
(3) This clause does not limit section 35 (Who are interested persons and parties 10
in relation to applications) of the Powers of Attorney Act 2003 in its 11
application to the Tribunal. 12
8 Certain guardianship functions may be exercised by registrar 13
(1) Despite clause 4, a registrar may, at the direction of the President, exercise any 14
Division function of the Tribunal in respect of: 15
(a) refusing under section 25A of the Guardianship Act 1987 a request to 16
review a guardianship order, or 17
(b) refusing under section 25O of the Guardianship Act 1987 a request to 18
review a financial management order on an application under section 19
25R, or 20
(c) refusing under section 25T of the Guardianship Act 1987 a request to 21
review the Tribunal's appointment of the manager of a protected 22
person's estate, or 23
(d) recognising under section 48B of the Guardianship Act 1987 a person's 24
status as the guardian of another person or as the manager of the estate 25
of another person. 26
(2) The President may direct a registrar to refer the exercise of such a function in 27
a particular matter to the Tribunal. The registrar must comply with such a 28
direction. 29
(3) A registrar may refer a particular matter to the Tribunal if the registrar 30
considers it would be more appropriate for the Tribunal to deal with the matter. 31
(4) A decision of a registrar under subclause (1) is declared to be an appealable 32
decision for the purposes of section 32 of this Act. 33
Note. A decision of a registrar under subclause (1) is an internally appealable decision 34
for the purposes of this Act. 35
9 Legal representation 36
Despite section 45 of this Act, a party to proceedings for the exercise of a 37
Division function for the purposes of section 175 of the Children and Young 38
Persons (Care and Protection) Act 1998 is entitled to be represented by an 39
Australian legal practitioner without requiring the leave of the Tribunal. 40
Note. The leave of the Tribunal will, however, be required under section 45 of this Act 41
in other cases. 42
10 Withdrawal of applications 43
An application to the Tribunal for the exercise of a substantive Division 44
function cannot be withdrawn except with the consent of the Tribunal. 45
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11 Written reasons are generally to be provided 1
(1) Subject to subclause (2), the Tribunal (however constituted) must give each 2
party to proceedings for the exercise of a Division function a written statement 3
of reasons for any decision it makes in the proceedings. 4
(2) If the Tribunal is constituted by less than 3 Division members, the Tribunal is 5
not required to provide a written statement of reasons for any of the following 6
kinds of decisions unless requested to do so by a party under section 62 of this 7
Act: 8
(a) a decision for the purposes of section 36 (Who may give consent) of the 9
Guardianship Act 1987 in respect of giving consent to the carrying out 10
of minor treatment, 11
(b) a decision for the purposes of Part 5A (Reciprocal arrangements) of the 12
Guardianship Act 1987, 13
(c) an ancillary or interlocutory decision of the Tribunal made in the 14
proceedings. 15
(3) A statement of reasons for the purposes of this clause must set out the matters 16
referred to in section 62 (3) of this Act. 17
(4) A requirement under this clause to provide a statement of reasons applies even 18
if the Tribunal has not been (or cannot be) requested under section 62 of this 19
Act to provide a statement of reasons. 20
Part 6 Appeals 21
12 Division decisions may be appealed to either Appeal Panel or Supreme Court 22
(1) A party to proceedings in which a Division decision that is an internally 23
appealable decision is made (an appealable Division decision) may appeal 24
against the decision by either: 25
(a) an internal appeal to an Appeal Panel in accordance with Division 2 of 26
Part 6 of this Act, or 27
(b) an appeal to the Supreme Court in accordance with this Part. 28
(2) However, a decision of a registrar made under clause 8 (1) may only be 29
appealed as an internal appeal to an Appeal Panel in accordance with 30
Division 2 of Part 6 of this Act. 31
(3) An internal appeal precludes an appeal to the Supreme Court against the same 32
decision unless the internal appeal is withdrawn with the approval of an 33
Appeal Panel for the purpose of enabling an appeal to the Supreme Court 34
against the decision. 35
(4) An appeal to the Supreme Court precludes an internal appeal against the same 36
decision unless the appeal to the Supreme Court is withdrawn with the 37
approval of the Court for the purpose of enabling an internal appeal against the 38
decision. 39
13 Constitution of Appeal Panel for internal appeals 40
(1) Except as provided by subclause (2), an Appeal Panel determining an internal 41
appeal against an appealable Division decision is to be constituted by 42
3 members (whether or not Division members) as follows: 43
(a) 1 member who is an Australian lawyer of at least 7 years' standing, 44
(b) 1 other member who is an Australian lawyer, 45
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(c) 1 general member who is not an Australian lawyer. 1
(2) An Appeal Panel may be constituted by 1 member when making an ancillary 2
or interlocutory decision of the Tribunal in an internal appeal against an 3
appealable Division decision. 4
(3) Nothing in subclause (2) prevents an Appeal Panel from being constituted as 5
provided by subclause (1) when making an ancillary or interlocutory decision 6
of the Tribunal in an internal appeal against an appealable Division decision. 7
14 Appeals to Supreme Court under this Part 8
(1) A party to proceedings in which an appealable Division decision is made may 9
appeal to the Supreme Court against the decision: 10
(a) in the case of an interlocutory decision of the Tribunal--with the leave 11
of the Court, or 12
(b) in the case of any other kind of decision--as of right on any question of 13
law, or with the leave of the Court, on any other grounds. 14
Note. See also section 84 (Practice and procedure for appeals to courts under this 15
Act). 16
(2) An appeal under this Part is to be instituted: 17
(a) in the case of an ancillary or interlocutory decision of the Tribunal-- 18
within the period ending 28 days after the relevant decision has been 19
made, or 20
(b) in any other case--within the period ending 28 days after the day on 21
which the written statement of reasons for the decision is given to the 22
person seeking to appeal, or 23
(c) within such further time as the Supreme Court may, in any case, allow. 24
(3) The Supreme Court in an appeal under this Part may: 25
(a) decide to deal with the appeal by way of a new hearing if it considers 26
that the grounds for the appeal warrant a new hearing, and 27
(b) permit such fresh evidence, or evidence in addition to or in substitution 28
for the evidence received by the Tribunal at first instance, to be given in 29
the new hearing as it considers appropriate in the circumstances. 30
(4) In determining an appeal, the Supreme Court may make such orders as it 31
considers appropriate in light of its decision on the appeal, including (but not 32
limited to) orders that provide for any one or more of the following: 33
(a) the decision under appeal to be confirmed, affirmed or varied, 34
(b) the decision under appeal to be quashed or set aside, 35
(c) the decision under appeal to be quashed or set aside and for another 36
decision to be substituted for it, 37
(d) the whole or any part of the case to be reconsidered by the Tribunal at 38
first instance, either with or without further evidence, in accordance 39
with the directions of the Supreme Court. 40
(5) Subject to any interlocutory order made by the Supreme Court, an appeal to 41
the Supreme Court operates to stay the decision under appeal. 42
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[43] Schedule 7 1
Omit the Schedule. Insert instead: 2
Schedule 7 Examples of procedural rule-making powers 3
(Sections 25 (2) and 90 (2) (a)) 4
1 The time and manner for making applications or lodging appeals. 5
2 The parties to proceedings in the Tribunal (including the joinder, misjoinder 6
and non-joinder of parties and rights of intervention of third parties such as 7
Ministers in proceedings). 8
3 The representation of parties by Australian legal practitioners or other persons 9
(including when leave should be refused or granted for a person to represent a 10
party and the circumstances when the Tribunal may appoint a person to 11
represent a party). 12
4 The selection, use and functions of friends of the Tribunal with respect to the 13
presentation of cases before the Tribunal. 14
5 The circumstances in which proceedings may be heard ex parte or in which a 15
default decision of the Tribunal may be obtained. 16
6 The rights and obligations of parties, prospective parties and other persons to 17
obtain access to information, documents or things in relation to proceedings or 18
prospective proceedings in the Tribunal. 19
7 The service, giving or lodgment of notices and other documents, including for 20
the purposes of the Administrative Decisions Review Act 1997. 21
8 The splitting and consolidation of proceedings in the Tribunal. 22
9 The admission and exclusion of evidence and the manner in which evidence is 23
to be tendered. 24
10 The transcribing or other recording of proceedings in the Tribunal. 25
11 The appointment, use and functions of assessors in connection with 26
proceedings in the Tribunal. 27
12 The review by the Tribunal of decisions made by registrars (including by way 28
of internal appeals). 29
13 The means for, and the practice and procedure to be followed in, the 30
enforcement and execution of decisions of the Tribunal. 31
14 The means for, and the practice and procedure to be followed in, securing the 32
future conduct of parties to proceedings in the Tribunal. 33
15 The circumstances in which the Tribunal may vary or set aside its orders and 34
other decisions. 35
16 The means for proving particular facts, and the mode in which evidence may 36
be given (including the administration of oaths or affirmations to and the 37
taking of the evidence of witnesses in or out of New South Wales), in relation 38
to proceedings in the Tribunal. 39
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17 The use of expert evidence, including: 1
(a) the disclosure (by the furnishing of copies of reports or otherwise) of the 2
nature of expert evidence to be given, and including the exclusion of 3
expert evidence in cases of non-compliance with the rules relating to 4
expert evidence or with any order for disclosure of the nature of expert 5
evidence, and 6
(b) the use of expert witnesses including, in particular, the use of expert 7
witnesses engaged jointly by parties to proceedings and the use of 8
Tribunal-appointed expert witnesses. 9
18 The cases in which security may be required, and the form of such security, 10
and the manner in which, and the person to whom, it is to be given. 11
19 The means for notifying the parties to proceedings of decisions of, or other 12
action taken by, the Tribunal in the proceedings. 13
20 The costs in proceedings in the Tribunal (but not including any matter relating 14
to costs that is regulated by Part 3.2 of the Legal Profession Act 2004). 15
21 The determination of the seniority of members in connection with the exercise 16
of the functions of the Tribunal in proceedings. 17
22 The circumstances for the use of resolution processes in proceedings. 18
23 The specification of exceptions, limitations or other restrictions in relation to 19
a provision of this Act that is expressed to be subject to the procedural rules. 20
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Schedule 2 Repeal and amendment of certain legislation 1
relating to Administrative Decisions Tribunal 2
2.1 Administrative Decisions Legislation Amendment Act 1997 No 77 3
Repeal the Act. 4
2.2 Administrative Decisions Tribunal Act 1997 No 76 5
[1] Long title 6
Omit "to establish an Administrative Decisions Tribunal and provide for its functions". 7
Insert instead "to provide for the administrative review by the Civil and Administrative 8
Tribunal of certain decisions of administrators". 9
[2] Section 1 Name of Act 10
Omit "Administrative Decisions Tribunal Act 1997". 11
Insert instead "Administrative Decisions Review Act 1997". 12
[3] Section 3 13
Omit the section. Insert instead: 14
3 Objects of Act 15
The objects of this Act are as follows: 16
(a) to provide a preliminary process for the internal review of 17
administratively reviewable decisions before the administrative review 18
of such decisions by the Tribunal under this Act, 19
(b) to require administrators making administratively reviewable decisions 20
to notify persons of decisions affecting them and of any review rights 21
they might have and to provide reasons for decisions of administrators 22
on request, 23
(c) to foster an atmosphere in which administrative review by the Tribunal 24
is viewed positively as a means of enhancing the delivery of services 25
and programs, 26
(d) to promote and effect compliance by administrators with legislation 27
enacted by Parliament for the benefit of the citizens of New South 28
Wales. 29
[4] Section 4 Definitions 30
Omit section 4 (1). Insert instead: 31
(1) In this Act: 32
administrative review jurisdiction of the Tribunal--see section 9. 33
administratively reviewable decision--see section 7. 34
administrator--see section 8. 35
decision--see section 6. 36
enabling legislation means legislation (other than this Act or any statutory 37
rules made under this Act) that: 38
(a) provides for applications to be made to the Tribunal with respect to a 39
specified matter or class of matters, or 40
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Schedule 2 Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal
(b) otherwise enables the Tribunal to exercise functions with respect to a 1
specified matter or class of matters. 2
function includes a power, authority or duty, and exercise a function includes 3
perform a duty. 4
interested person means a person who is entitled under enabling legislation to 5
make an application to the Tribunal for an administrative review under this 6
Act of an administratively reviewable decision. 7
internal review means an internal review conducted under section 53. 8
legislation means an Act or a statutory rule. 9
lodge a document includes file a document. 10
President means the President of the Tribunal. 11
procedural rules has the same meaning as in the Civil and Administrative 12
Tribunal Act 2013. 13
Tribunal means the Civil and Administrative Tribunal. 14
[5] Section 4 (2) and (3) 15
Omit "an enactment" and "the enactment" wherever occurring. 16
Insert instead "enabling legislation" and "the enabling legislation", respectively. 17
[6] Section 4 (3) 18
Omit "a reviewable decision or a decision that is subject to an external appeal". 19
Insert instead "an administratively reviewable decision". 20
[7] Section 4 (4) 21
Insert after section 4 (3): 22
(4) Notes included in this Act do not form part of this Act. 23
[8] Section 5 What is an enactment? 24
Omit the section. 25
[9] Section 6 Meaning of "decision" 26
Omit "an enactment" and "the enactment" wherever occurring. 27
Insert instead "enabling legislation" and "the enabling legislation", respectively. 28
[10] Sections 7-10 29
Omit the sections. 30
[11] Chapter 2 31
Omit Chapters 2-4. Insert instead: 32
Chapter 2 Administrative review jurisdiction of 33
Tribunal 34
7 Meaning of "administratively reviewable decision" 35
(1) An administratively reviewable decision is a decision of an administrator over 36
which the Tribunal has administrative review jurisdiction. 37
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Schedule 2 Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal
(2) For the avoidance of doubt (and without limiting subsection (1) or section 6): 1
(a) the conduct of an administrator (or a refusal by an administrator to 2
engage in conduct) is an administratively reviewable decision if 3
enabling legislation identifies that conduct or refusal as conduct or 4
refusal over which the Tribunal has administrative review jurisdiction, 5
and 6
(b) in its application to any such conduct or refusal by an administrator, any 7
reference in this Act (however expressed) to an administrator making an 8
administratively reviewable decision includes a reference to an 9
administrator engaging or refusing to engage in the conduct. 10
Note. The jurisdiction conferred on the Tribunal by section 55 of the Privacy and 11
Personal Information Protection Act 1998 is an example of administrative review 12
jurisdiction of the Tribunal over conduct. 13
8 Meaning of "administrator" 14
(1) An administrator, in relation to an administratively reviewable decision, is the 15
person or body that makes (or is taken to have made) the decision under 16
enabling legislation. 17
Note. There are a number of circumstances in which a person or body is taken to have 18
made a decision. See, for example, subsection (2) and sections 6 (2)-(5) and 9 (3) 19
and (4). 20
(2) The person or body specified by enabling legislation as a person or body 21
whose decisions are administratively reviewable decisions is taken to be the 22
only administrator in relation to the making of an administratively reviewable 23
decision even if some other person or body also had a role in the making of the 24
decision. 25
9 When administrative review jurisdiction is conferred 26
(1) The Tribunal has administrative review jurisdiction over a decision (or class 27
of decisions) of an administrator if enabling legislation provides that 28
applications may be made to the Tribunal for an administrative review under 29
this Act of any such decision (or class of decisions) made by the administrator: 30
(a) in the exercise of functions conferred or imposed by or under the 31
legislation, or 32
(b) in the exercise of any other functions of the administrator identified by 33
the legislation. 34
(2) If enabling legislation makes provision for applications to be made to the 35
Tribunal in respect of an administratively reviewable decision subject to 36
certain conditions, the Tribunal has jurisdiction under the enabling legislation 37
only if those conditions are satisfied. 38
(3) A provision of enabling legislation that provides for a decision of an 39
administrator to be administratively reviewable by the Tribunal under this Act 40
extends to the following: 41
(a) a decision made by a person to whom the function of making the 42
decision has been delegated, 43
(b) if the provision specifies the administrator by reference to the holding 44
of a particular office or appointment--a decision by any person for the 45
time being acting in, or performing any of the duties of, the office or 46
appointment, 47
(c) a decision made by any other person authorised to exercise the function 48
of making the decision. 49
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(4) If an administrator makes an administratively reviewable decision by reason 1
of holding or performing the duties of an office or appointment and then ceases 2
to hold or perform the duties of the office or appointment, this Act has effect 3
as if the decision had been made by: 4
(a) the person for the time being holding or performing the duties of that 5
office or appointment, or 6
(b) if there is no person for the time being holding or performing the duties 7
of that office or appointment or the office no longer exists--such person 8
as the President (or another person authorised by the President) 9
specifies. 10
(5) Nothing in this section permits administrative review jurisdiction to be 11
conferred on the Tribunal by a statutory rule unless the conferral of 12
jurisdiction by such means is expressly authorised by another Act. 13
[12] Chapter 5, heading 14
Omit the heading. Insert instead: 15
Chapter 3 Process for administrative reviews under 16
this Act 17
[13] Chapter 5, Part 1 18
Omit the Part. 19
[14] Chapter 5, Parts 2 and 3 20
Omit each term or expression specified in Column 1 of the following Table wherever 21
occurring (including in definitions, headings and notes) and regardless of capitalisation. 22
Insert instead the term or expression specified in Column 2 opposite the term or expression 23
specified in Column 1 with capitalisation that corresponds to that of the omitted term or 24
expression: 25
Table 26
Column 1 Column 2
reviewable decisions administratively reviewable decisions
a reviewable decision an administratively reviewable decision
any other reference to reviewable decision administratively reviewable decision
[15] Section 48 Notice of decision and review rights to be given by administrators 27
Omit "an enactment" from section 48 (2) (b) (iii). Insert instead "legislation". 28
[16] Section 53 Internal reviews 29
Omit "relevant enactment" from section 53 (5A). Insert instead "relevant legislation". 30
[17] Section 53 (9), note 31
Omit "a review". Insert instead "an administrative review under this Act". 32
[18] Chapter 5, Part 3, Division 1, heading 33
Omit "review". Insert instead "administrative review". 34
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[19] Section 55 1
Omit sections 55-57. Insert instead: 2
55 Making of applications 3
(1) An application for an administrative review under this Act of an 4
administratively reviewable decision may only be made by an interested 5
person. 6
(2) Subject to enabling legislation, an application is to be made in the time and 7
manner prescribed by the procedural rules. 8
Note. The fees payable for applications are also prescribed by the regulations under 9
the Civil and Administrative Tribunal Act 2013. 10
(3) If the interested person was entitled to seek an internal review of the 11
administratively reviewable decision, an application may not be made unless 12
the person has duly applied for such an internal review and the review is taken 13
to have been finalised under section 53 (9). 14
(4) However, the Tribunal may deal with an application for the administrative 15
review of an administratively reviewable decision even though the applicant 16
has not duly applied for an internal review to which the applicant was entitled 17
if the Tribunal is satisfied that: 18
(a) the applicant made a late application for the internal review in 19
circumstances where the person dealing with the application 20
unreasonably refused to consider the application and the application to 21
the Tribunal was made within a reasonable time following the 22
administratively reviewable decision of the administrator concerned, or 23
(b) it is necessary for the Tribunal to deal with the application in order to 24
protect the applicant's interests and the application to the Tribunal was 25
made within a reasonable time following the administratively 26
reviewable decision of the administrator concerned. 27
(5) In determining whether a late application for internal review was unreasonably 28
refused or whether an application to the Tribunal was made within a 29
reasonable time for the purposes of subsection (4), the Tribunal is to have 30
regard to: 31
(a) the time when the applicant became aware of the making of the 32
decision, and 33
(b) in a case to which subsection (4) (a) applies--the period prescribed by 34
or under section 53 for the lodging of an application for an internal 35
review, and 36
(c) such other matters as it considers relevant. 37
(6) The Tribunal may also deal with an application even though the applicant has 38
duly applied for an internal review of the decision to which the application 39
relates, and the review is not finalised, if the Tribunal is satisfied that it is 40
necessary for the Tribunal to deal with the application in order to protect the 41
applicant's interests. 42
[20] Section 58 Duty of administrator to lodge material documents with Tribunal where 43
decision reviewed 44
Omit "Registrar" from section 58 (5). Insert instead "principal registrar". 45
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Schedule 2 Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal
[21] Section 58 (6) 1
Omit "section 84" and "the Registrar". 2
Insert instead "the Civil and Administrative Tribunal Act 2013" and "the principal registrar 3
of the Tribunal", respectively. 4
[22] Section 58 (7) 5
Omit the subsection. Insert instead: 6
(7) Nothing in this section requires the disclosure of, or the granting of access to, 7
any document (or a copy of a document) in contravention of any of the 8
following: 9
(a) an order made under section 59 (Objections to lodgment), 10
(b) an order made under section 64 (Tribunal may restrict disclosures 11
concerning procedures) of the Civil and Administrative Tribunal Act 12
2013, 13
(c) section 66 (Effect of Government Information (Public Access) Act 14
2009) or section 67 (Privileged documents) of the Civil and 15
Administrative Tribunal Act 2013 (as applied by section 67 of this Act). 16
[23] Section 59 Objections to lodgment 17
Omit section 59 (2). Insert instead: 18
(2) On any such application, the Tribunal may make an order that a copy of a 19
document not be lodged with the Tribunal if: 20
(a) it is satisfied that section 67 (Privileged documents) of the Civil and 21
Administrative Tribunal Act 2013 (as applied by section 67 of this Act) 22
operates so as not to require the disclosure of the document, or 23
(b) it considers that, if an application were made under section 64 (Tribunal 24
may restrict disclosures concerning procedures) of the Civil and 25
Administrative Tribunal Act 2013, it would be appropriate to make an 26
order under that section prohibiting or restricting the publication or 27
disclosure of evidence of the document. 28
[24] Section 60 Operation and implementation of decisions pending applications for 29
administrative review 30
Omit "a review" wherever occurring in section 60 (1) and (2). 31
Insert instead "an administrative review under this Act". 32
[25] Chapter 5, Part 3, Division 3, heading 33
Omit "review". Insert instead "administrative review". 34
[26] Section 63 Determination of administrative review by Tribunal 35
Omit "a review" and "the review" wherever occurring in section 63 (1) and (3). 36
Insert instead "an administrative review under this Act" and "the administrative review", 37
respectively. 38
[27] Section 63 (2) 39
Omit "relevant enactment". Insert instead "relevant legislation". 40
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Civil and Administrative Tribunal Amendment Bill 2013 [NSW]
Schedule 2 Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal
[28] Sections 64 (1) and (4) and 65 (1) 1
Omit "a review" wherever occurring. 2
Insert instead "an administrative review under this Act". 3
[29] Section 66 Effect of administrative review decision 4
Omit "a review" from section 66 (1). 5
Insert instead "an administrative review under this Act". 6
[30] Section 66 (2) (a) 7
Omit "a review under this Chapter". 8
Insert instead "an administrative review under this Act". 9
[31] Chapter 4 10
Omit Chapters 6-8. Insert instead: 11
Chapter 4 Miscellaneous 12
67 Application of certain provisions of Civil and Administrative Tribunal Act 2013 13
The following provisions of the Civil and Administrative Tribunal Act 2013 14
are taken to apply for the purposes of this Act in the same way as they apply 15
for the purposes of the Civil and Administrative Tribunal Act 2013: 16
(a) section 66 (Effect of Government Information (Public Access) Act 17
2009), 18
(b) section 67 (Privileged documents). 19
68 Notices, service and lodgment of documents 20
The procedural rules may make provision for or with respect to the service, 21
giving or lodgment of notices or documents for the purposes of this Act. 22
69 Offence: improper disclosure of information 23
A person must not disclose information obtained in exercising a function 24
under this Act unless the disclosure is made: 25
(a) with the consent of the person to whom the information relates, or 26
(b) in connection with the execution or administration of this Act, the Civil 27
and Administrative Tribunal Act 2013 or enabling legislation, or 28
(c) for the purpose of any legal proceedings arising out of this Act, the Civil 29
and Administrative Tribunal Act 2013 or enabling legislation or any 30
report of such proceedings, or 31
(d) with other legal excuse. 32
Maximum penalty: 33
(a) in the case of a corporation--100 penalty units, or 34
(b) in any other case--50 penalty units or imprisonment for 12 months, or 35
both. 36
70 Nature of proceedings for offences 37
Proceedings for an offence under this Act or the regulations may be dealt with 38
summarily before the Local Court. 39
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Schedule 2 Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal
71 Regulations 1
(1) The Governor may make regulations, not inconsistent with this Act, for or 2
with respect to any matter that by this Act is required or permitted to be 3
prescribed or that is necessary or convenient to be prescribed for carrying out 4
or giving effect to this Act. 5
(2) The regulations may create offences punishable by a penalty not exceeding 6
10 penalty units. 7
[32] Schedules 1-4 8
Omit the Schedules. 9
[33] Schedule 5, heading 10
Omit the heading (including the source reference). Insert instead: 11
Schedule 1 Savings, transitional and other provisions 12
[34] Schedule 5, clause 1 (1) 13
Insert at the end of the clause: 14
any other Act that amends this Act 15
[35] Schedule 5, clause 1 (3) 16
Omit "in the Gazette". Insert instead "on the NSW legislation website". 17
[36] Schedule 5, clause 1A 18
Insert after clause 1: 19
1A References to ADT 20
A reference to the Administrative Decisions Tribunal or the Tribunal 21
established by this Act (however expressed) in a provision of this Schedule 22
that was inserted before the establishment day (within the meaning of the Civil 23
and Administrative Tribunal Act 2013) is a reference to the Administrative 24
Decisions Tribunal that was formerly established under this Act when this Act 25
was named the Administrative Decisions Tribunal Act 1997. 26
2.3 Administrative Decisions Tribunal Regulation 2009 27
[1] Clause 1 Name of Regulation 28
Omit "Administrative Decisions Tribunal Regulation 2009". 29
Insert instead "Administrative Decisions Review Regulation 2009". 30
[2] Clause 3 Definition 31
Omit "Tribunal" from the definition of the Act in clause 3 (1). Insert instead "Review". 32
[3] Clauses 4 and 5 33
Omit "Reviewable decisions", "reviewable decisions" and "reviewable decision" wherever 34
occurring (including headings). 35
Insert instead "Administratively reviewable decisions", "administratively reviewable 36
decisions" and "administratively reviewable decision", respectively. 37
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Schedule 2 Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal
[4] Clause 6 Witness allowances and expenses 1
Omit the clause. 2
[5] Clause 7 Oath to be taken by members of Tribunal 3
Omit the clause. 4
[6] Clause 8 Fees 5
Omit the clause. 6
[7] Schedule 1 Fees 7
Omit the Schedule. 8
2.4 Administrative Decisions Tribunal Rules 1998 9
Repeal the Rules. 10
Page 88
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