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.
"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 Guardianship Division of the Tribunal.
(2) For the purposes of this Schedule--(a) a Division member has a
"professional qualification" if the member is a person (such as a medical practitioner, psychologist or social worker) who has experience in assessing or treating persons to whom the Guardianship Act 1987 relates, or(b) a Division member has a
"community based qualification" if the member is a person who has experience with persons to whom the Guardianship Act 1987 relates.
(3) A Division member is taken to have a professional qualification or community based qualification for the purposes of the Schedule if the President has, by written instrument, designated the member as having that qualification.
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 functions of the Tribunal in relation to the following legislation are allocated to the Division--Children and Young Persons (Care and Protection) Act 1998Guardianship Act 1987NSW Trustee and Guardian Act 2009Powers of Attorney Act 2003
(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).
(3) However, the functions allocated to the Division do not include any functions of the Tribunal involving the exercise of its administrative review jurisdiction.Note--: Functions that are not expressly allocated to this Division or another Division are allocated to the Administrative and Equal Opportunity Division. See clause 3(1) of Schedule 3.
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.
(1) The Tribunal, when exercising its substantive Division functions, is to be constituted by 3 Division members as follows--(a) 1 member who is an Australian lawyer,(b) 1 member with a professional qualification,(c) 1 member with a community based qualification.
(2) Despite subclause (1), the Tribunal may be constituted by 1 or 2 Division members in exercising its substantive Division functions for the purposes of the following provisions of the Guardianship Act 1987 --(a) Division 4 (Assessment and review of guardianship orders) of Part 3,(b) Division 2 (Review and revocation of financial management orders) of Part 3A,(c) Division 3 (Review of appointment of manager) of Part 3A,(d) section 36 (Who may give consent) in respect of giving consent to the carrying out of minor treatment or major treatment (but not special treatment or treatment in the course of a clinical trial),(e) Part 5A (Reciprocal arrangements).
(2A) Despite subclause (1), the Tribunal may be constituted by 1 or 2 Division members when exercising its substantive Division functions for the purposes of determining an application under the Guardianship Act 1987 , section 46A if--(a) the application is made during the exercise of substantive Division functions for the purposes of a provision referred to in subclause (2)(a)-(c) in relation to the person who is the subject of the application, or(b) the application is urgent.
(2B) For subclause (2A), an application is
"urgent" if the Tribunal considers a delay caused by the operation of subclause (1) would be likely to cause a real, material and imminent risk of harm to the person who is the subject of the application.
(2C) Despite subclause (1), the Tribunal may be constituted by 1 or 2 Division members in exercising its substantive Division functions for the purposes of clause 10.
(3) When the Tribunal is constituted by 2 members, each member must--(a) be an Australian lawyer or have a qualification referred to in subclause (1)(b) or (c), and(b) not have the same qualification (including that of an Australian lawyer) as the other member.
(4) In this clause,
"clinical trial" ,
"major treatment" ,
"minor treatment" and
"special treatment" have the same meanings as in Part 5 of the Guardianship Act 1987 .
(1) The Tribunal, when exercising its Division functions in relation to persons who have disabilities, is under a duty to observe the principles referred to in the Guardianship Act 1987 , section 4.Note--: Section 4 of the Guardianship Act 1987 sets out principles that everyone must observe when exercising functions under that Act with respect to persons with disabilities.
(2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36(5) of this Act.
(1) Despite section 50 of this Act, the Tribunal is required to hold a hearing in proceedings that involve the exercise of a substantive Division function.
(2) However, the Tribunal may dispense with a hearing for the purposes of making an ancillary or interlocutory decision of the Tribunal.
The Tribunal may dispense with a requirement to serve notice of a hearing under the Guardianship Act 1987 , section 10 or 25I if the Tribunal considers compliance with the requirement would be likely to cause a real, material and imminent risk of harm to the person who is the subject of the application to which the hearing relates.
(1) The Tribunal may make an order under section 44(1) of this Act joining a person as a party to proceedings for the exercise of a Division function if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person's concern for the welfare of the person the subject of the proceedings or for any other reason).
(2) If the Tribunal joins a person as a party to any such proceedings, the Tribunal must, as soon as practicable, notify the applicant (if any) for the proceedings accordingly.
(3) This clause does not limit section 35 (Who are interested persons and parties in relation to applications) of the Powers of Attorney Act 2003 in its application to the Tribunal.
(1) Despite clause 4, a registrar may, at the direction of the President, exercise any Division function of the Tribunal in respect of--(a) refusing under section 25A of the Guardianship Act 1987 a request to review a guardianship order, or(b) refusing under section 25O of the Guardianship Act 1987 a request to review a financial management order on an application under section 25R, or(c) refusing under section 25T of the Guardianship Act 1987 a request to review the Tribunal's appointment of the manager of a protected person's estate, or(d) recognising under section 48B of the Guardianship Act 1987 a person's status as the guardian of another person or as the manager of the estate of another person.
(2) The President may direct a registrar to refer the exercise of such a function in a particular matter to the Tribunal. The registrar must comply with such a direction.
(3) A registrar may refer a particular matter to the Tribunal if the registrar considers it would be more appropriate for the Tribunal to deal with the matter.
(4) A decision of a registrar under subclause (1) is declared to be an appealable decision for the purposes of section 32 of this Act.Note--: A decision of a registrar under subclause (1) is an internally appealable decision for the purposes of this Act.
Despite section 45 of this Act, a party to proceedings for the exercise of a Division function for the purposes of section 175 of the Children and Young Persons (Care and Protection) Act 1998 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.
An application to the Tribunal for the exercise of a substantive Division function cannot be withdrawn except with the consent of the Tribunal.
(1) Subject to subclause (2), the Tribunal (however constituted) must give each party to proceedings for the exercise of a Division function a written statement of reasons for any decision it makes in the proceedings.
(2) The Tribunal is not required to provide a written statement of reasons for any of the following kinds of decisions unless requested to do so by a party under section 62 of this Act--(a) a decision for the purposes of section 36 (Who may give consent) of the Guardianship Act 1987 in respect of giving consent to the carrying out of minor treatment,(b) a decision for the purposes of Part 5A (Reciprocal arrangements) of the Guardianship Act 1987 ,(c) an ancillary or interlocutory decision of the Tribunal made in the proceedings.
(3) A statement of reasons for the purposes of this clause must set out the matters referred to in section 62(3) of this Act.
(4) A requirement under this clause to provide a statement of reasons applies even if the Tribunal has not been (or cannot be) requested under section 62 of this Act to provide a statement of reasons.
(1) A party to proceedings in which a Division decision that is an internally appealable decision is made (an
"appealable Division decision" ) may appeal against the decision by either--(a) an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6 of this Act, or(b) an appeal to the Supreme Court in accordance with this Part.
(2) However, a decision of a registrar made under clause 8(1) may only be appealed as an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6 of this Act.
(3) An internal appeal precludes an appeal to the Supreme Court against the same decision unless the internal appeal is withdrawn with the approval of an Appeal Panel for the purpose of enabling an appeal to the Supreme Court against the decision.
(4) An appeal to the Supreme Court precludes an internal appeal against the same decision unless the appeal to the Supreme Court is withdrawn with the approval of the Court for the purpose of enabling an internal appeal against the decision.
(1) Except as provided by subclause (2), an Appeal Panel determining an internal appeal against an appealable Division decision is to be constituted by 3 members (whether or not Division members) as follows--(a) 1 member who is an Australian lawyer of at least 7 years' standing,(b) 1 other member who is an Australian lawyer,(c) 1 senior or general member who is not an Australian lawyer.
(2) An Appeal Panel may be constituted by 1 member when making an ancillary or interlocutory decision of the Tribunal in an internal appeal against an appealable Division decision.
(3) Nothing in subclause (2) prevents an Appeal Panel from being constituted as provided by subclause (1) when making an ancillary or interlocutory decision of the Tribunal in an internal appeal against an appealable Division decision.
(1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision--(a) in the case of an interlocutory decision of the Tribunal--with the leave of the Court, or(b) in the case of any other kind of decision--as of right on any question of law, or with the leave of the Court, on any other grounds.Note--: See also section 84 (Practice and procedure for appeals to courts under this Act).
(2) An appeal under this Part is to be instituted--(a) in the case of an ancillary or interlocutory decision of the Tribunal--within the period ending 28 days after the relevant decision has been made, or(b) in any other case--within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal, or(c) within such further time as the Supreme Court may, in any case, allow.
(3) The Supreme Court in an appeal under this Part may--(a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
(4) In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following--(a) the decision under appeal to be confirmed, affirmed or varied,(b) the decision under appeal to be quashed or set aside,(c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,(d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court.
(5) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal.