New South Wales Consolidated Acts New South Wales Consolidated Acts
(1) In this Schedule--
"Division decision" means a decision of the Tribunal in exercise of a Division function.
"Division function" means a function of the Tribunal allocated to the Division by this Schedule.
"Division Head" means the Division Head of the Division.
"Division member" means a member who is assigned to the Division.
"lands legislation" means the following legislation--(a) the Agricultural Industry Services Act 1998 ,(b) the Australian Oil Refining Agreements Act 1954 ,(c) the Commons Management Act 1989 ,(d) the Crown Land Management Act 2016 ,(g) the Local Land Services Act 2013 ,(h) the Port Kembla Inner Harbour Construction and Agreement Ratification Act 1955 ,(i) the Water Act 1912 .
"substantive Division function" means a Division function other than--(a) a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal, or(b) a Division function exercised by a registrar.
"the Division" means the Administrative and Equal Opportunity Division of the Tribunal.
(2) Except as otherwise provided by this Schedule, a provision of this Schedule that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made.
The Division is to be composed of the following members--
(a) the Division Head,
(b) such other members as may be assigned to the Division by or under this Act.
(1) The following functions of the Tribunal are allocated to the Division--(a) the functions of the Tribunal in relation to the following legislation--Anti-Discrimination Act 1977Building Products (Safety) Act 2017Child Protection (Working with Children) Act 2012Combat Sports Act 2008Combat Sports Act 2013Community Services (Complaints, Reviews and Monitoring) Act 1993Dormant Funds Act 1942Education Act 1990Government Information (Public Access) Act 2009lands legislationNational Disability Insurance Scheme (Worker Checks) Act 2018Native Title (New South Wales) Act 1994Paintball Act 2018Public Health Act 2010Victims Rights and Support Act 2013(b) any other function of the Tribunal in relation to legislation that is not specifically allocated to any other Division of the Tribunal by another Division Schedule for a Division.
(2) The functions allocated to the Division by subclause (1) include--(a) any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and(b) any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal), and(c) in relation to the exercise of administrative review jurisdiction in this Division--any functions conferred or imposed on the Tribunal by or under the Administrative Decisions Review Act 1997 in connection with the exercise of such jurisdiction.
(3) The President may, if the President considers it appropriate, reallocate a function of the Division allocated under subclause (1)(b) to another Division of the Tribunal.
Note : If special constitution requirements for the exercise of a Division function are not specified by the following provisions, the Tribunal may be constituted in accordance with the general provisions of section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions of that section in connection with the exercise of Division functions for the purposes of making ancillary or interlocutory decisions of the Tribunal.
The Tribunal, when exercising its substantive Division functions for the purposes of the Anti-Discrimination Act 1977 , is to be constituted by--
(a) 1 Division member who is an Australian lawyer, or
(b) 2 or more Division members (with at least one being an Australian lawyer).
The Tribunal, when exercising its substantive Division functions for the purposes of the Combat Sports Act 2008 or Combat Sports Act 2013 , is to be constituted by 1 Division member who is an Australian lawyer.
The Tribunal, when exercising its substantive Division functions for the purposes of the Dormant Funds Act 1942 , is to be constituted by--
(a) 1 Division member who is an Australian lawyer, or
(b) 2 or more Division members (with at least one being an Australian lawyer).
The Tribunal, when exercising its substantive Division functions for the purposes of the Education Act 1990 , is to be constituted by--
(a) 1 Division member who is an Australian lawyer, or
(b) 2 or more Division members (with at least one being an Australian lawyer).
(1) The Tribunal, when exercising its substantive Division functions for the purposes of section 64 of the Public Health Act 2010 , is to be constituted by one Division member who is an Australian lawyer.
(2) The Tribunal, when exercising its substantive Division functions for the purposes of section 7, 65 or 66 of that Act, is to be constituted by 3 Division members as follows--(a) 1 presidential member,(b) 1 member who is an Australian lawyer,(c) 1 member who is a registered medical practitioner with experience in public health matters.
(1) Despite section 45 of this Act, a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.Note : The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.
(2) The Ombudsman has a right to appear in proceedings for the purposes of the Community Services (Complaints, Reviews and Monitoring) Act 1993 before the Tribunal in order to assist the Tribunal (otherwise than as a party in proceedings).
(3) The Secretary (within the meaning of the Teaching Service Act 1980 ) is entitled to appear and be represented at any proceedings arising out of an administrative review application made by a person under Part 4 of the Child Protection (Working with Children) Act 2012 .
(4) The following persons have a right to appear and be heard in proceedings for the exercise of a Division function for the purposes of the Government Information (Public Access) Act 2009 --(a) the Information Commissioner,(b) the Privacy Commissioner,(c) any person who could be aggrieved by a decision of the Tribunal on an administrative review on an application made under Division 4 of Part 5 of that Act.
(1) The parties to proceedings before the Tribunal relating to a complaint under the Anti-Discrimination Act 1977 are--(a) the complainant who, for the purposes of that Act, is taken to be the applicant, and(b) the respondent, and(c) any other person who has been made a party to the proceedings under this Act, and(d) the Attorney General if the Attorney General intervenes under this Act.
(2) Without limiting section 44 of this Act, the Tribunal may substitute a complainant or respondent if the Tribunal is of the opinion that the other parties to the proceedings will not be prejudiced by the substitution.
(3) The Tribunal may remove or agree to the withdrawal of a complainant from proceedings if the Tribunal is satisfied that the complainant does not wish to proceed with the complaint.
(1) This clause applies to proceedings for the exercise of a Division function for the purposes of Division 4 (Public health orders for Category 4 and 5 conditions) of Part 4 of the Public Health Act 2010 .
(2) If an application for an order under section 64 (Tribunal may restrict disclosures concerning proceedings) of this Act is made by a party to proceedings to which this clause applies, the onus is on the other party to show cause why the application should be refused.
(1) Despite section 60(1) and (2) of this Act, the Tribunal may, in its discretion, award costs in relation to proceedings for the exercise of a Division function for the purposes of the Dormant Funds Act 1942 .
(2) Without limiting section 60(4) of this Act, the Tribunal may determine that costs are to be paid out of the fund to which such proceedings relate.
(3) The Tribunal may, in determining the costs in relation to a successful appeal for the purposes of section 15B of Dormant Funds Act 1942 against a determination of the Commissioner of Dormant Funds, order the trustees of the fund to which the appeal relates to pay out of the fund the costs incurred by the Commissioner before the appeal in making the determination.
(4) Costs payable out of a fund because of an order made under subclause (3) must not exceed 1% of the value of the fund (as determined by the Tribunal).
(5) In this clause--
"costs" includes the costs of, or incidental to, proceedings.
"fund" has the same meaning as in the Dormant Funds Act 1942 .
Despite section 60 of this Act, the Tribunal may not award costs in proceedings for any of the following Division decisions--
(b) a decision for the purposes of the Child Protection (Working with Children) Act 2012 ,
(b1) a decision for the purposes of the National Disability Insurance Scheme (Worker Checks) Act 2018 ,
(c) an administrative review decision for the purposes of the Victims Rights and Support Act 2013 .
The functions of the Tribunal in relation to the Building Products (Safety) Act 2017 are subject to sections 81 and 82 of that Act.
Despite section 46 of this Act, the Tribunal may not compel a witness to give evidence or produce documents in review proceedings under Part 5 of the Victims Rights and Support Act 2013 if the witness is the victim of the relevant offence (within the meaning of that Part) to which the review proceedings relate.
(1) Except as otherwise provided by the lands legislation, an external appeal made under that legislation--(a) may be made without requiring the leave of the Tribunal concerning the grounds for the appeal, and(b) is to be by way of a rehearing.
(2) Fresh evidence, or evidence in addition to or in substitution for the evidence received by the external decision-maker, may be given in the appeal with the leave of the Tribunal.
Despite section 32 of this Act, each of the following Division decisions is not an internally appealable decision for the purposes of an internal appeal--
(a) a decision of the Tribunal for the purposes of section 96 of the Anti-Discrimination Act 1977 with respect to the granting of leave for the purposes of that section,
(b) a Division decision for the purposes of the Child Protection (Working with Children) Act 2012 ,
(c) a Division decision for the purposes of the National Disability Insurance Scheme (Worker Checks) Act 2018 ,
(d) a Division decision for the purposes of the lands legislation,
(e) a determination of the Tribunal for the purposes of Part 7 of the Native Title (New South Wales) Act 1994 ,
(f) an administrative review decision for the purposes of section 21 of the Plant Diseases Act 1924 ,
(g) an administrative review decision for the purposes of section 51 of the Victims Rights and Support Act 2013 .
Despite section 80(2) of this Act, an internal appeal against an interim order of the Tribunal under the Anti-Discrimination Act 1977 may only be made with the leave of the Appeal Panel even if it is on a question of law.
(1) A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision--(a) a Division decision for the purposes of the Child Protection (Working with Children) Act 2012 ,(b) a Division decision for the purposes of the National Disability Insurance Scheme (Worker Checks) Act 2018 .Note : Internal appeals against such decisions are not available because of clause 15. See also section 84 (Practice and procedure for appeals to courts under this Act).
(2) The Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following--(a) an order affirming, varying or setting aside the decision under appeal,(b) an order varying the decision under appeal,(c) an order setting aside the decision under appeal and, if it considers appropriate, making a decision in substitution of that decision,(d) an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.
(3) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court does not affect the operation of the decision under appeal or prevent the taking of action to implement the decision.
(1) A party to proceedings in which a Division decision is made for the purposes of the lands legislation may appeal to the Land and Environment Court against the decision.Note : Internal appeals against these decisions are not available because of clause 15.
(2) Subject to any interlocutory order made by the Land and Environment Court, an appeal to the Land and Environment Court does not affect the operation of the decision under appeal or prevent the taking of action to implement the decision.