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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
South Australian Civil and Administrative Tribunal
Bill 2013
A BILL FOR
An Act to establish a tribunal with jurisdiction to review certain
administrative decisions and to act with respect to certain disciplinary, civil
or other proceedings; to confer powers on the tribunal; and for other
purposes.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Interpretation
4Relevant Acts
prevail
Part 2—South Australian Civil and
Administrative Tribunal
Division 1—Establishment of
Tribunal
5Establishment of Tribunal
6Jurisdiction of
Tribunal
7Tribunal to operate throughout
State
Division 2—Main objectives of
Tribunal
8Main objectives of Tribunal
Division 3—Members of
Tribunal
Subdivision 1—The members
9The
members
Subdivision 2—The
President
10Appointment of President
11President's functions generally
12Acting President
Subdivision 3—The Deputy
Presidents
13Number of Deputy Presidents
14Appointment of Deputy Presidents
15Deputy President's functions
generally
16Acting Deputy Presidents
17Supplementary Deputy Presidents
Subdivision 4—Magistrates
18Magistrates
Subdivision 5—Senior members and
ordinary members
19Appointment of senior members and ordinary
members
20Member ceasing to hold office and
suspension
21Supplementary members
Subdivision 6—Assessors
22Assessors
Division 4—Constitution of Tribunal
and its decision-making processes
23Constitution
of Tribunal
24Who presides at proceedings of
Tribunal
25Decision if 2 or more members constitute
Tribunal
26Determination of questions
of law
Division 5—Related
matters
27Streams
28Validity of acts of
Tribunal
29Disclosure of interest by members of
Tribunal
30Delegation
Division 1—Preliminary
31Sources of jurisdiction
32Kinds of
jurisdiction
Division 2—Original
jurisdiction
33Original jurisdiction
Division 3—Review
jurisdiction
34Decisions within review
jurisdiction
35Decision-maker must assist
Tribunal
36Effect of review proceedings on decision being
reviewed
37Decision on
review
38Tribunal may invite decision-maker to
reconsider decision
Part 4—Principles,
powers and procedures
Division 1—Principles governing
hearings
39Principles governing hearings
Division 2—Evidentiary
powers
40Power to require person to give evidence or to
produce evidentiary material
41Entry and inspection of property
42Expert reports
Division 3—Procedures
43Practice and procedure generally
44Directions for conduct of
proceedings
45Consolidating and splitting
proceedings
46More appropriate forum
47Dismissing
proceedings on withdrawal or for want of jurisdiction
48Frivolous,
vexatious or improper proceedings
49Proceedings being conducted to cause
disadvantage
Division 4—Conferences, mediation and
settlement
50Conferences
51Mediation
52Settling
proceedings
Division 5—Parties
53Parties
54Person may be joined as
party
55Intervening
Division 6—Representation
56Representation
Division 7—Costs
57Costs
58Costs—related
matters
Division 8—Other procedural and
related provisions
59Sittings
60Hearings in public
61Preserving subject matter of
proceedings
62Security as to costs etc
63Interlocutory orders
64Declaratory
judgments
65Conditional, alternative and ancillary orders
and directions
66Special referees
67Relief from time
limits
68Electronic hearings and proceedings without
hearings
69Completion of part-heard matters
70Disclosures contrary to
public interest
71Tribunal's duties as to protected
matter
72Privilege against
self-incrimination
73Other claims of privilege
Division 3—Related
matters
76Reservation of questions of law
77Effect of review or appeal
on decision
Division 1—Registrars
78Registrars
79Functions of
registrars
80Delegation
Division 2—Other
staff of Tribunal
81Other staff of Tribunal
Division 3—Use of services or
staff
82Use of services or staff
Part 7—Miscellaneous
83Immunities
84Protection from
liability for torts
85Protection for compliance with Act
86Alternative orders and relief
87Power to cure irregularities
88Correcting mistakes
89Tribunal may
review its decision if person was absent
90Tribunal may authorise person
to take evidence
91Miscellaneous provisions relating to legal
process and service
92Proof of decisions and orders of
Tribunal
93Enforcement of decisions and orders of
Tribunal
94Accessibility of evidence
95Contempt
96Costs of proceedings
97Annual
report
98Additional reports
99Rules
100Regulations
101Review
The Parliament of South Australia enacts as
follows:
This Act may be cited as the South Australian Civil and Administrative
Tribunal Act 2013.
This Act will come into operation on a day to be fixed by
proclamation.
(1) In this Act, unless the contrary intention appears—
appear, at a hearing, means to appear in person or
participate in a way allowed under this Act or a relevant Act;
applicant means—
(a) in the context of the Tribunal's review jurisdiction, the person
who—
(i) applies to the Tribunal for a review; or
(ii) otherwise brings a matter before the Tribunal; or
(iii) requests, requires, or otherwise seeks that a matter be referred to,
or otherwise be brought before, the Tribunal; and
(b) in any other context, the person who—
(i) brings a matter before the Tribunal; or
(ii) requests, requires, or otherwise seeks that a matter be referred to,
or otherwise brought before, the Tribunal,
except that, unless the rules otherwise provide, it does not include a
person who is required by this Act or a relevant Act to refer a matter to the
Tribunal, or otherwise bring a matter before the Tribunal, as sought by another
person;
decision, of the Tribunal, includes a direction or
determination of the Tribunal;
decision-maker—see
section 34(2);
Department means the administrative unit of the Public
Service that is, under the Minister, responsible for the administration of this
Act;
Deputy President means a Deputy President of the
Tribunal;
District Court means the District Court of South
Australia;
evidentiary material means any document, object or substance
of evidentiary value in proceedings before the Tribunal and includes any
document, object or substance that should, in the opinion of the Tribunal, be
produced for the purpose of enabling the Tribunal to determine whether or not it
has evidentiary value;
exempt document means an exempt document under the Freedom
of Information Act 1991;
legally qualified member means—
(a) a Presidential member; or
(b) a magistrate who is a member of the Tribunal; or
(c) another member of the Tribunal who is a legal practitioner of at least
5 years standing;
Magistrates Court means the Magistrates Court of South
Australia;
monetary order means an order of the Tribunal requiring the
payment of money and includes—
(a) an order made for the payment of a fine or other pecuniary penalty;
and
(b) an order as to the payment of any costs; and
(c) an order for the payment of compensation for breach of an
Act;
ordinary member means a person holding office as an ordinary
member of the Tribunal;
original jurisdiction of the Tribunal—see
Part 3
Division 2;
President means the President of the Tribunal;
Presidential member means the President or a Deputy President
of the Tribunal;
protected matter means—
(a) any information or document to which a certificate under
section 70(2)
applies, except to the extent that an order of the Tribunal under
section 70(4)
provides that disclosure would not be contrary to the public interest;
or
(b) an exempt document, or any matter in an exempt document;
registrar means the Registrar or a Deputy Registrar of the
Tribunal;
relevant Act means an Act which confers jurisdiction on the
Tribunal;
reviewable decision—see
section 34(2);
review jurisdiction of the Tribunal—see
Part 3
Division 3;
rules means the rules of the Tribunal in force under this
Act;
senior member means a person holding office as a senior
member of the Tribunal;
Tribunal means the South Australian Civil and Administrative
Tribunal established by this Act.
(2) If under a relevant Act a person's failure or omission to do something
is reviewable under this Act as a decision—
(a) this Act applies as if that person had made that decision;
and
(b) any provision of the relevant Act as to when the decision is taken to
have been made has effect.
(3) The members of the staff of the Tribunal are—
(a) the registrars; and
(b) the other members of staff appointed or made available for the
purposes of the Tribunal under this Act.
(4) The officers of the Tribunal are—
(a) the registrars; and
(b) members of the staff of the Tribunal who are designated as officers of
the Tribunal by the Registrar of the Tribunal.
If there is an inconsistency between this Act and a relevant Act, the
relevant Act prevails to the extent of the inconsistency.
Part 2—South
Australian Civil and Administrative Tribunal
Division 1—Establishment
of Tribunal
The South Australian Civil and Administrative Tribunal is
established.
The Tribunal has the jurisdiction described in
Part 3.
7—Tribunal
to operate throughout State
(1) The Tribunal is to facilitate access to its services throughout the
State and may sit at any place (either within or outside the State).
(2) Registries of the Tribunal will be at the places determined by the
President after consultation with the Minister.
Division 2—Main
objectives of Tribunal
The main objectives of the Tribunal in dealing with matters within its
jurisdiction are—
(a) in the exercise of its jurisdiction in the field of administrative
law, to promote the best principles of administrative law,
including—
(i) independence in decision-making; and
(ii) natural justice and procedural fairness; and
(iii) high-quality, consistent decision-making; and
(iv) transparency and accountability in the exercise of statutory
functions, powers and duties; and
(b) to be accessible by being easy to find and easy to access, and to be
responsive to parties, especially people with special needs; and
(c) to ensure that applications are processed and resolved as quickly as
possible while achieving a just outcome, including by resolving disputes through
high-quality processes and the use of mediation and alternative dispute
resolution procedures wherever appropriate; and
(d) to keep costs to parties involved in proceedings before the Tribunal
to a minimum insofar as is just and appropriate; and
(e) to use simple language and procedures that can be understood by the
general public and that will, as appropriate, lead to a reduction in the need
for legal representation; and
(f) to act with as little formality and technicality as possible,
including by informing itself in such manner as the Tribunal thinks fit;
and
(g) to be flexible in the way in which the Tribunal conducts its business
and to adjust its procedures to best fit the circumstances of a particular
case.
Division 3—Members
of Tribunal
The members of the Tribunal are—
(a) the President; and
(b) the Deputy President or Deputy Presidents; and
(c) the magistrates who are designated as members of the Tribunal under
this Act; and
(d) the senior members; and
(e) the ordinary members; and
(f) assessors.
(1) The President of the Tribunal will be a judge of the Supreme Court or
the District Court assigned by the Governor, by proclamation, to be the
President of the Tribunal.
(2) The appointment of
a judge of the Supreme Court or the District Court as President of the
Tribunal does not affect—
(a) the judge's tenure of office or status as a judge; or
(b) the payment of the judge's salary or allowances as a judge (subject to
the operation of
subsection (5));
or
(c) the ability of the person to do anything in the person's capacity as a
judge (including as to the exercise of the jurisdiction of the
Supreme Court or the District Court (as the case may be)); or
(d) any other right or privilege that the judge has as a judge.
(3) Service in the
office of President of the Tribunal is taken, for all purposes, to constitute
service as a judge of the Supreme Court or the District Court (as the case
may be).
(4) Subject to
subsections (2) and
(3), an assignment may be
subject to conditions determined by the Governor.
(5) Without limiting
subsection (4), the
Governor may determine that the President's salary or allowances as a judge will
have an additional component on account of holding office under this Act (and
this determination will have effect according to its terms and will be in
addition to any determination of remuneration under the Remuneration
Act 1990).
(6) A person ceases to
be the President of the Tribunal if—
(a) the person ceases to be a judge of the Supreme Court or the
District Court; or
(b) the person resigns as President by written notice to the
Attorney-General; or
(c) the proclamation making the assignment as President of the Tribunal is
revoked by further proclamation.
(7) Before the Governor makes a proclamation under this section, the
Attorney-General must consult with—
(a) the Chief Justice; and
(b) if the proclamation relates to a judge of the District Court—the
Chief Judge.
11—President's
functions generally
(1) The President of the Tribunal has the functions conferred on the
President under this Act or any other Act.
(2) The functions of the President include—
(a) participating as a member of the Tribunal; and
(b) having primary responsibility for the administration of the Tribunal;
and
(c) managing the business of the Tribunal, including by ensuring that the
Tribunal operates efficiently and effectively and continually improves the way
in which it carries out its functions; and
(d) providing leadership and guidance to the Tribunal and engendering
cohesiveness and collaboration amongst the members and staff of the Tribunal;
and
(e) giving directions about the practices and procedures to be followed by
the Tribunal; and
(f) developing and implementing performance standards and setting
benchmarks for the Tribunal; and
(g) being responsible for promoting the training, education and
professional development of members of the Tribunal; and
(h) overseeing the proper use of the resources of the Tribunal;
and
(i) providing advice about—
(i) the membership of the Tribunal; and
(ii) the operations and activities of the Tribunal.
(3) The President may do all things necessary or convenient to be done in
the performance of the President's functions.
(4) In the performance of the President's functions, the President is not
subject to direction or control by the Minister.
(1) If there is a vacancy in the office of President or the President is
absent or for any other reason is unable to perform the functions of office, the
Governor may, by proclamation, appoint a person to act as President of the
Tribunal for a period not exceeding 6 months.
(2) The Governor may
only appoint—
(a) a Deputy President; or
(b) a judge of the
Supreme Court or the District Court,
to act as President.
(3) However, the Governor may not appoint a person acting as a Deputy
President to act as President unless the person is a judge of the District
Court.
(4) A person appointed to act as a President—
(a) has all the functions of the President; and
(b) is taken to be the President for all purposes related to this Act or a
relevant Act.
(5) A person appointed to act as President is, for the period of his or
her appointment, entitled to be paid additional salary and allowances to ensure
that his or her salary and allowances equal the salary and allowances payable to
a President of the Tribunal.
(6) The Governor may, by further proclamation—
(a) extend or renew an appointment under this section; or
(b) revoke an appointment under this section.
(7) Before the Governor makes a proclamation under this section, the
Attorney-General must consult with—
(a) the Chief Justice; and
(b) if the proclamation relates to a judge of the District Court—the
Chief Judge.
Subdivision 3—The
Deputy Presidents
13—Number
of Deputy Presidents
There will be at least 1 Deputy President of the Tribunal.
14—Appointment
of Deputy Presidents
(1) A Deputy President
will be—
(a) a judge of the
District Court assigned by the Governor, by proclamation, to be a Deputy
President of the Tribunal; or
(b) a person who is
eligible for appointment as a judge of the District Court appointed by the
Governor to be a Deputy President of the Tribunal.
(2) The appointment of
a judge of the District Court as a Deputy President of the Tribunal under
subsection (1)(a)
does not affect—
(a) the judge's tenure of office or status as a judge; or
(b) the payment of the judge's salary or allowances as a judge (subject to
the operation of
subsection (5));
or
(c) the ability of the person to do anything in the person's capacity as a
judge (including as to the exercise of the jurisdiction of the District Court);
or
(d) any other right or privilege that the judge has as a judge of the
District Court.
(3) Service in the
office of Deputy President of the Tribunal by a judge of the District Court is
taken, for all purposes, to constitute service as a judge of that
Court.
(4) Subject to
subsections (2) and
(3), an assignment under
subsection (1)(a)
may be subject to conditions determined by the Governor.
(5) Without limiting
subsection (4), in
the case of an assignment under
subsection (1)(a),
the Governor may determine that a Deputy President's salary or allowances as a
judge will have an additional component on account of holding office under this
Act (and this determination will have effect according to its terms and will be
in addition to any determination of remuneration under the Remuneration
Act 1990).
(6) The appointment of
a person as a Deputy President of the Tribunal under
subsection (1)(b)—
(a) will be for a term of 5 years (and the person is eligible for
reappointment at the expiration of a term of office); and
(b) will be on a full-time or part-time basis (and this may be altered
from time to time with the agreement of the Attorney-General and the President
of the Tribunal).
(7) An appointment
under
subsection (1)(b)
may be subject to conditions determined by the Governor.
(8) Without limiting
subsection (7), in
the case of an appointment under
subsection (1)(b),
the Governor will determine the salary or allowances to be paid to the person on
account of holding office under this Act.
(9) A person ceases to
be a Deputy President of the Tribunal if—
(a) in the case of an assignment under
subsection (1)(a)—
(i) the person ceases to be a judge of the District Court; or
(ii) the proclamation making the assignment as Deputy President of the
Tribunal is revoked by further proclamation; or
(b) in the case of an
appointment under
subsection (1)(b)—
(i) the person completes a term of office and is not reappointed;
or
(ii) the appointment is
revoked by the Governor, on the recommendation of the Attorney-General,
for—
(A) mental or physical incapacity to carry out duties satisfactorily;
or
(B) neglect of duty; or
(C) dishonourable conduct; or
(c) the person resigns by written notice to the
Attorney-General.
(10) The Attorney-General must consult with the President of the Tribunal
before making a recommendation under
subsection (9)(b)(ii).
(11) Before the Governor makes a proclamation under this section, the
Attorney-General must consult with the Chief Justice and the Chief
Judge.
15—Deputy
President's functions generally
(1) A Deputy President of the Tribunal has the functions conferred on the
Deputy President under this Act or any other Act.
(2) The functions of a Deputy President include—
(a) participating as a member of the Tribunal; and
(b) assisting the President in the management of the business of the
Tribunal; and
(c) assisting the President in managing the members of the Tribunal,
including in connection with the training, education and professional
development of members of the Tribunal; and
(d) other functions assigned by the President.
(3) A Deputy President may do all things necessary or convenient to be
done in the performance of the Deputy President's functions.
(4) A Deputy President is subject to the direction of the President in
performing the Deputy President's functions, other than adjudicating in the
Tribunal.
(1) If there is a vacancy in an office of Deputy President or a Deputy
President is absent or for any other reason is unable to perform the duties of
office, the Attorney-General may appoint a person to act as a Deputy President
for a period not exceeding 6 months.
(2) An appointment under this section must be made in writing.
(3) The
Attorney-General may only appoint—
(a) a judge of the
District Court; or
(b) a person who is eligible for appointment as a judge of the District
Court (who may already be a member of the Tribunal on some other
basis),
to act as a Deputy President.
(4) The Attorney-General must consult with the President of the Tribunal
before making an appointment under
subsection (3) and
with the Chief Judge before making an appointment under
subsection (3)(a).
(5) A person appointed to act as a Deputy President—
(a) has all the functions of a Deputy President; and
(b) is taken to be a Deputy President for all purposes related to this Act
or a relevant Act (and the other provisions of this subdivision apply with any
necessary modifications in relation to a person appointed under this
section).
(6) However, if the person appointed to act as a Deputy President is not a
judge of the District Court, the person is, for the period of appointment,
entitled to be paid any salary or allowances determined by the Attorney-General
after consultation with the President of the Tribunal (with a judge of the
District Court being paid any salary and allowances of a Deputy
President).
(7) A person appointed to act as a Deputy President may be appointed to
act as a Deputy President for a further period—
(a) by the Attorney-General, if the appointment is continuous on 1 or
more of the person's previous appointments as an acting Deputy President and the
total period of continuous appointments does not exceed 6 months;
or
(b) by the Governor in other circumstances.
(8) The Governor may at
any time, on the recommendation of the Attorney-General, cancel the appointment
of a person to act as a Deputy President.
(9) Before the Governor acts under
subsection (8),
the Attorney-General must consult with—
(a) the President of the Tribunal (unless the Attorney-General is acting
at the request of the President); and
(b) if the relevant person is a judge of the District Court—the
Chief Judge.
17—Supplementary
Deputy Presidents
(1) Even though there is no vacancy in an office of Deputy President (and
any Deputy President is performing the duties of office), the Attorney-General
may, on the request of the President of the Tribunal, temporarily appoint a
person to act as a supplementary Deputy President of the Tribunal in relation to
a particular matter or matters or for a specified period.
(2) The
Attorney-General may only appoint—
(a) a judge of the
District Court; or
(b) a person who is eligible to act in a judicial office on an auxiliary
basis under section 3(2) of the Judicial
Administration (Auxiliary Appointments and Powers) Act 1988 (even
though office under this Act is not a judicial office under that Act).
(3) The Attorney-General must consult with the Chief Judge before making
an appointment under
subsection (2)(a).
(4) An appointment under this section must be made in writing.
(5) The person may act as a Deputy President in relation to a matter, or
for the period, for which the person is appointed, and when acting under the
appointment the person is to be regarded as a Deputy President of the Tribunal
for the purposes of this Act and any relevant Act (and the other provisions of
this subdivision apply with any necessary modifications in relation to a person
appointed under this section).
(6) However, if a person appointed under this section is not a judge of
the District Court, the person is, for the period of appointment, entitled to be
paid any salary or allowances determined by the Attorney-General after
consultation with the President of the Tribunal (with a judge of the District
Court being paid any salary or allowances of a Deputy President).
(7) A person appointed under this section for a particular period may be
appointed to act for a further period by the Attorney-General after consultation
with, or at the request of, the President of the Tribunal.
(8) The Governor may at
any time, on the recommendation of the Attorney-General, cancel the appointment
of a person under this section.
(9) Before the Governor acts under
subsection (8),
the Attorney-General must consult with—
(a) the President of the Tribunal (unless the Attorney-General is acting
at the request of the President); and
(b) if the relevant person is a judge of the District Court—the
Chief Judge.
(1) Any magistrate
holding office under the Magistrates
Act 1983 who is designated by the Governor, by proclamation, as a
member of the Tribunal on a recommendation of the Attorney-General will (while
he or she continues to hold office as a magistrate) be a member of the
Tribunal.
(2) The Attorney-General must consult with the President of the Tribunal
and the Chief Magistrate before making a recommendation under
subsection (1).
(3) A magistrate appointed under this section will act as a full-time,
part-time or sessional member of the Tribunal under an arrangement established
by the President and the Chief Magistrate (being an arrangement that may be
varied from time to time).
(4) The designation of a magistrate under this section does not
affect—
(a) the magistrate's tenure of office or status as a magistrate;
or
(b) the payment of the magistrate's salary or allowances as a magistrate;
or
(c) the ability of the person from doing anything in the person's capacity
as a magistrate; or
(d) any other right or privilege that the magistrate has as a
magistrate.
Subdivision 5—Senior
members and ordinary members
19—Appointment
of senior members and ordinary members
(1) The Governor may,
on the recommendation of the Minister, appoint a person as—
(a) a senior member of the Tribunal; or
(b) an ordinary member of the Tribunal.
(2) The Minister must
from time to time appoint a panel of persons who will—
(a) after consultation
with the President, recommend the selection criteria for the senior members and
ordinary members of the Tribunal; and
(b) assess a candidate
or candidates for appointment as a senior member or ordinary member of the
Tribunal (and, as appropriate, to provide advice to the Minister for the
purposes of
subsection (1)).
(3) In order to select
a person for appointment as a senior member or ordinary member of the Tribunal,
the Minister must advertise for applications from appropriately qualified
persons to be considered for selection.
(4) A person is eligible for appointment as a senior member or ordinary
member of the Tribunal only if the person—
(a) is a legal practitioner of at least 5 years standing (taking into
account, for that purpose, periods of legal practice and judicial service within
and outside the State); or
(b) has, in the Minister's opinion, extensive knowledge, expertise or
experience relating to a class of matter for which functions may be exercised by
the Tribunal.
(5) In recommending persons for appointment as members, the Minister must
have regard to—
(a) the criteria applying under
subsection (2)(a);
and
(b) the advice provided under
subsection (2)(b);
and
(c) the following:
(i) the need for balanced gender representation in the membership of the
Tribunal;
(ii) the need for the membership of the Tribunal to reflect social and
cultural diversity;
(iii) the range of knowledge, expertise and experience required within the
membership of the Tribunal.
(6) The Minister must consult with the President of the Tribunal before
making a recommendation under
subsection (1).
(7) A senior member or
ordinary member of the Tribunal will be appointed for a term of office, of
between 3 and 5 years, specified in the instrument of
appointment.
(8) A person appointed
as a senior member or ordinary member of the Tribunal is eligible for
reappointment at the expiration of a term of office (and without the need for
seeking advice from a panel established under
subsection (2) or
advertising under
subsection (3)).
(9) A senior member or
ordinary member of the Tribunal is appointed on conditions specified in the
instrument of appointment.
(10) A senior member or
ordinary member of the Tribunal may be appointed on a full-time, part-time or
sessional basis (and this may be altered from time to time with the agreement of
the Minister).
(11) However, a senior member or ordinary member of the Tribunal may only
perform work outside the Tribunal that has been approved by the President of the
Tribunal (and the President may grant an approval on such conditions as the
President thinks fit).
(12) The Minister must consult with the President about—
(a) the conditions of an appointment under
subsection (9);
and
(b) the basis of an appointment under
subsection (10).
20—Member
ceasing to hold office and suspension
(1) The Governor may,
on the recommendation of the Minister, remove a senior member or ordinary member
of the Tribunal from office for—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct.
(2) A person ceases to be a senior member or an ordinary member of the
Tribunal if the person—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) ceases to satisfy any qualification by virtue of which the person was
eligible for appointment to the Tribunal; or
(e) is removed from office under
subsection (1).
(3) The Minister must consult with the President before making a
recommendation under
subsection (1).
(4) The President may,
on his or her own initiative or at the request of the Minister, suspend a senior
member or ordinary member of the Tribunal from office if it appears that there
may be grounds for the removal of the member from the member's office.
(5) If a senior member or ordinary member of the Tribunal who is appointed
on a full-time or part-time basis is suspended under
subsection (4), the
member remains entitled to the member's usual remuneration and allowances during
the period of suspension.
(1) The
Attorney-General may, at the request or with the agreement of the President of
the Tribunal, temporarily appoint a person to act as a supplementary senior
member or a supplementary ordinary member of the Tribunal in relation to a
particular matter or matters or for a specified period.
(2) The Attorney-General may only appoint a person under this section if
he or she is eligible for appointment as a senior member or an ordinary member
of the Tribunal.
(3) An appointment under this section must be made in writing.
(4) The person may act as a member of the Tribunal in relation to a
matter, or for the period, for which the person is appointed, and when acting
under the appointment the person is to be regarded as a senior member or an
ordinary member of the Tribunal (according to the basis on which the appointment
was made) for the purposes of this Act and any relevant Act (and the other
provisions of this subdivision apply with any necessary modifications in
relation to a person appointed under this section).
(5) A person appointed under this section is, for the period of
appointment, entitled to be paid any salary or allowances determined by the
Attorney-General after consultation with the President of the
Tribunal.
(6) A person appointed under this section for a particular period may be
appointed to act for a further period by the Attorney-General after consultation
with the President of the Tribunal.
(7) The Governor may at
any time, on the recommendation of the Attorney-General, cancel the appointment
of a person under this section.
(8) Before the Governor acts under
subsection (7),
the Attorney-General must consult with the President of the Tribunal (unless the
Attorney-General is acting at the request of the President).
(1) There will be such
panels of assessors as may be necessary for the purposes of any relevant
Act.
(2) An assessor will be
appointed by the Governor on the recommendation of the Minister.
(3) An assessor must be a person who, in the opinion of the Minister, is
qualified, by reason of his or her knowledge, expertise and experience, to
provide specialist knowledge in a field or fields in which the Tribunal
exercises jurisdiction (after taking into account the provisions of any relevant
Act).
(4) The Minister must consult with a President of the Tribunal before
making a recommendation under
subsection (2).
(5) An assessor will be appointed for a term of office, not exceeding
5 years, specified in the instrument of appointment and is eligible for
reappointment at the expiration of a term of office.
(6) An assessor is appointed on conditions specified in the instrument of
appointment.
(7) An assessor will sit on a sessional basis.
(8) Subject to the conditions of appointment, an assessor may perform work
outside the Tribunal.
(9) The Governor may,
on the recommendation of the Minister, remove an assessor from office
for—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct.
(10) A person ceases to be an assessor if the person—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) ceases to satisfy any qualification by virtue of which the person was
eligible for appointment to the Tribunal; or
(e) is removed from office under
subsection (9).
(11) The Minister must consult with the President of the Tribunal before
making a recommendation under
subsection (9).
(12) The Governor may make appointments from time to time for the purpose
of maintaining or increasing the membership of panels established under this
section.
Division 4—Constitution
of Tribunal and its decision-making processes
(1) Subject to this section, the President may determine, in relation to a
particular matter or matters, or particular classes of matters, which member or
members of the Tribunal will constitute the Tribunal.
(2) The Tribunal is not to be constituted by more than 3 members
(unless a relevant Act provides otherwise).
(3) In determining the member or members of the Tribunal who are to
constitute the Tribunal with respect to any matter (and the number of members),
the President is to have regard to—
(a) the degree of public importance and the complexity of the matter;
and
(b) if the matter comes within the review jurisdiction of the Tribunal,
the nature and status of the office of the decision-maker who made the
reviewable decision; and
(c) the extent to which any sitting member of the Tribunal needs to have
special knowledge, expertise or experience that is relevant to the matter;
and
(d) the need to ensure that a person who has had previous involvement with
the matter, otherwise than as a member of the Tribunal, is not a sitting member
of the Tribunal; and
(e) any relevant provision of this Act or the provisions of a relevant
Act; and
(f) anything else that the President considers relevant.
(4) A person is not allowed to be a sitting member of the Tribunal, or
perform any function as a member of the Tribunal, in relation to a matter in the
review jurisdiction of the Tribunal if the person was—
(a) the decision-maker in relation to that matter; or
(b) a member of a body that was the decision-maker in relation to that
matter.
(5) The President may, as he or she thinks fit—
(a) alter who is to constitute the Tribunal for the purpose of dealing
with a matter, or anything relating to a matter, and the Tribunal as constituted
after the alteration can have regard to any record of the proceedings of the
Tribunal in relation to the matter before the alteration or any evidence taken
in the proceedings before the alteration;
(b) provide that different aspects of the same matter may be dealt with by
different members of the Tribunal, and the members of the Tribunal may then come
together and have regard to any evidence taken by the respective members of the
Tribunal for the purposes of the proceedings of the Tribunal.
(6) In addition, the Tribunal may be constituted of—
(a) a registrar for the purpose of adjourning proceedings; or
(b) a registrar or other member of the staff of the Tribunal for any other
purpose specified by this Act or a relevant Act, prescribed by the rules of the
Tribunal, or determined by the President.
(7) The Tribunal may, at any one time, be separately constituted in
accordance with this section for the hearing and determination of any number of
separate matters.
(8) The Tribunal may, if it considers it appropriate to do so, organise
its business and regulate proceedings before the Tribunal in such a way that 2
or more proceedings in respect of the same matter are heard together.
(9) Where a registrar or other member of the staff of the Tribunal
exercises the jurisdiction of the Tribunal, the registrar or other member of the
staff may, and must if the Tribunal or the President of the Tribunal so directs,
refer the matter to the Tribunal for determination by the Tribunal.
(10) If a provision of this Act and the provisions of a relevant Act deal
with the manner in which the Tribunal is to be constituted for the purposes of
proceedings or any other business under a relevant Act, this section applies
subject to those provisions of the relevant Act.
24—Who
presides at proceedings of Tribunal
(1) If, for dealing with a particular matter, the Tribunal is constituted
by 2 or more members, the most senior of them is to preside at the proceedings
of the Tribunal.
(2) The seniority of members of the Tribunal depends on which of the
offices held takes precedence and, if that does not determine a member's
seniority, the matter is to be resolved by the President of the
Tribunal.
(3) The order of precedence of offices is as follows:
(a) President;
(b) Deputy President;
(c) magistrate;
(d) senior member;
(e) ordinary member;
(f) assessor.
25—Decision
if 2 or more members constitute Tribunal
If the Tribunal is constituted by 2 or more members, a question they are
required to decide is resolved, unless
section 26
applies, according to the opinion of the majority of them but, if their opinions
on the question are equally divided, the question is to be resolved according to
the opinion of the presiding member.
26—Determination
of questions of law
(1) Subject to
subsection (9), a
question of law is decided by the Tribunal according to the opinion of the
presiding member if that member is a legally qualified member.
(2) If the presiding
member is not a legally qualified member but there is at least 1 sitting member
who is a legally qualified member, a question of law is decided by the Tribunal
according to the opinion of that legally qualified member, or according to the
unanimous opinion of those legally qualified members if there are 2 (or more) of
them.
(3) The presiding
member may choose to refer a question of law to a Presidential member of the
Tribunal whether or not the question has been decided under
subsection (1) or
(2).
(4) If
subsection (2)
applies to a question of law, the presiding member is to refer the question to a
Presidential member of the Tribunal if—
(a) the presiding member is requested to do so by a sitting member who is
a legally qualified member (whether or not the question has been decided under
subsection (2));
or
(b) for any reason the question has not been decided under
subsection (2).
(5)
Subsection (1) no
longer applies to a question of law if the question is referred to a
Presidential member of the Tribunal under
subsection (3).
(6)
Subsection (2) no
longer applies to a question of law if the question is referred to a
Presidential member of the Tribunal under
subsection (3)
or
(4).
(7) If no sitting
member is a legally qualified member, the presiding member is to refer a
question of law to a Presidential member of the Tribunal.
(8)
Subsection (9)
applies to the resolution of a question of law if the presiding member is a
Presidential member of the Tribunal or the question is referred to a
Presidential member of the Tribunal under
subsection (3),
(4) or
(7).
(9) If this subsection
applies to a question of law—
(a) the question is decided by the Tribunal according to the opinion of
the Presidential member of the Tribunal; or
(b) the Presidential member may refer the question to the Supreme Court
for decision by the Full Court of the Supreme Court.
(10) If a Presidential member of the Tribunal decides a question of law
under
subsection (9), the
Presidential member may, in addition—
(a) decide any other questions remaining between the parties;
and
(b) make such orders that are necessary to dispose of the
matter.
Without limiting any other provisions, the President of the Tribunal may,
in order to facilitate the expeditious conduct of its proceedings, and the
proper and effective resolution of matters before the Tribunal, establish
various streams or lists that reflect the areas of jurisdiction of the
Tribunal.
28—Validity
of acts of Tribunal
An act or proceeding of the Tribunal is not invalid by reason only of a
vacancy in the membership of, or a defect in the appointment of a person to, the
Tribunal or a panel from which members of the Tribunal are drawn, or a defect in
the appointment of any other person to act on behalf of the Tribunal.
29—Disclosure
of interest by members of Tribunal
If the Tribunal is constituted of, or includes, a member who has a
pecuniary or other interest that could conflict with the proper performance of
the member's functions in proceedings before the Tribunal, the
member—
(a) must disclose the interest to the parties to the proceedings and to
the President of the Tribunal; and
(b) must not take part in the proceedings or exercise powers affecting the
proceedings—
(i) if the President directs the member to withdraw from the proceedings;
or
(ii) if a party to the proceedings does not consent to the member hearing
and determining, or participating in the hearing and determination of, the
proceedings.
(1) The President of
the Tribunal may delegate a function or power of the President under this or any
other Act—
(a) to another member of the Tribunal; or
(b) to a member of the staff of the Tribunal.
(2) A delegation under
subsection (1)—
(a) must be made by instrument in writing; and
(b) may be conditional; and
(c) does not derogate from the ability of the President to act in any
matter; and
(d) is revocable at will by the President.
(1) The Tribunal will
have the jurisdiction conferred on it by or under this or any other
Act.
(2) Without limiting
subsection (1), if a
provision of an Act enables an application, referral or appeal to be made to the
Tribunal, or a claim to be brought before the Tribunal, the Act will be taken to
confer jurisdiction on the Tribunal to deal with the matter concerned.
(1) Subject to
subsection (2), a
matter in which the Tribunal has jurisdiction comes within—
(a) its original jurisdiction; or
(2)
Subsection (1)(b)
does not encompass the jurisdiction that is exercised under
Part 5.
Division 2—Original
jurisdiction
(1) Subject to
subsection (2), if
the matter that a relevant Act gives the Tribunal to deal with does not involve
a review of a decision, the matter comes within the Tribunal's original
jurisdiction.
(2) Subject to
subsections (3) and
(4), the Tribunal will,
in its original jurisdiction, act as the original decision-maker in the matter
(and accordingly apply those principles which, according to law, are to be
applied to bodies that make such decisions pursuant to statute).
(3) In exercising its
original jurisdiction, the Tribunal is to deal with a matter in accordance with
this Act and the relevant Act.
(4) Furthermore, the
relevant Act may modify the operation of this Act in relation to a matter that
comes within the Tribunal's original jurisdiction.
Division 3—Review
jurisdiction
34—Decisions
within review jurisdiction
(1) If the matter that
a relevant Act gives the Tribunal jurisdiction to deal with is a matter that
expressly or necessarily involves a review of a decision, the matter comes
within the Tribunal's review jurisdiction.
(2) For the purposes of
this Act, a decision mentioned in
subsection (1) is a
reviewable decision and the person or body that made or is taken
to have made the decision is the decision-maker for the reviewable
decision.
(3) Subject to
subsection (4) and
(5), the Tribunal will,
in exercising its review jurisdiction, examine the decision of the
decision-maker by way of rehearing.
(a) an examination of the evidence or material before the decision-maker
(unless any such evidence or material is to be excluded under another provision
of this Act or under any other law); and
(b) a consideration of any further evidence or material that the Tribunal
decides, in the circumstances of the particular case, to admit for the purposes
of rehearing the matter.
(5) In exercising its
review jurisdiction, the Tribunal is to deal with a matter in accordance with
this Act and the relevant Act.
(6) Furthermore, the relevant Act may modify the operation of this Act in
relation to a matter that comes within the Tribunal's review
jurisdiction.
35—Decision-maker
must assist Tribunal
(1) In proceedings for
the review of a reviewable decision, the decision-maker for the reviewable
decision must use his or her best endeavours to help the Tribunal so that it can
make its decision on the review.
(2) Without limiting
subsection (1), the
decision-maker must provide the following to the Tribunal within a reasonable
period and in any event within the time prescribed by the regulations:
(a) a written statement
of the reasons for the decision;
(b) any document or thing in the decision-maker's possession or control
that may be relevant to the Tribunal's review of the decision.
(3) The decision-maker must, in providing any document or thing under
subsection (2), take
reasonable steps to identify the documents or things that were taken into
account in making the relevant decision.
(4) If the Tribunal
considers that there are additional documents or things in the decision-maker's
possession or control that may be relevant to the Tribunal's review of the
reviewable decision, the Tribunal may, by written notice, require the
decision-maker to provide the documents or things.
(5) If the Tribunal
considers the statement of reasons given under
subsection (2)(a) is
not adequate, the Tribunal may, by written notice, require the decision-maker to
give the Tribunal an additional statement containing stated further
particulars.
(6) The decision-maker must comply with a notice given under
subsection (4) or
(5) within the period
stated in the notice.
(7) A requirement under this section that the decision-maker give the
Tribunal information or a document or thing applies despite any provision in
another Act prohibiting or restricting the disclosure of the information or the
information contained in the document or thing.
(8) The Tribunal may examine any document or thing provided under this
section and draw any conclusions of fact it considers proper.
36—Effect
of review proceedings on decision being reviewed
(1) The commencement of proceedings for the review of a decision does not
affect the operation of the decision or prevent the taking of action to
implement the decision unless—
(a) the relevant Act states otherwise; or
(b) an order is made under
subsection (2).
(2) On or after the
commencement of proceedings for the review of a decision, the Tribunal or the
decision-maker may, on application or on its own initiative, make an order
staying or varying the operation or the implementation of the whole or a part of
the reviewable decision pending the determination of the matter if the Tribunal,
or the decision-maker, is satisfied that it is just and reasonable in the
circumstances to make the order.
(3) An order by the Tribunal or the decision-maker under this
section—
(a) is subject to such conditions as are specified in the order;
and
(b) may be varied or revoked—
(i) in any case—by further order of the Tribunal; or
(ii) if the order was made by the decision-maker—by further order by
the decision-maker or the Tribunal.
(1) The Tribunal may,
on a review under this Division—
(a) affirm the decision that is being reviewed; or
(b) vary the decision that is being reviewed; or
(c) set aside the
decision being reviewed and—
(i) substitute its own decision; or
(ii) send the
matter back to the decision-maker for reconsideration in accordance with any
directions or recommendations that the Tribunal considers appropriate,
and, in any case, may make any order the Tribunal considers appropriate
(including any ancillary or consequential order that the Tribunal considers
appropriate).
(2) The fact that a
decision is made on reconsideration under
subsection (1)(c)(ii)
does not prevent the decision from being open to review by the
Tribunal.
(3) The
decision-maker's decision as affirmed or varied by the Tribunal or a decision
that the Tribunal substitutes for the decision-maker's decision—
(a) is to be regarded
as, and given effect as, a decision of the decision-maker; and
(b) unless the relevant Act states otherwise or the Tribunal orders
otherwise, is to be regarded as having effect, from the time when the decision
reviewed would have, or would have had, effect.
(4) Without limiting
subsection (3)(a),
the decision-maker has power to do anything necessary to implement the
Tribunal's decision.
(5) Despite
subsection (3)(a),
the decision as affirmed, varied or substituted is not again open to review
before the Tribunal as a decision of the decision-maker (but may be subject to
appeal under this Act).
38—Tribunal
may invite decision-maker to reconsider decision
(1) At any stage of proceedings for the review of a reviewable decision,
the Tribunal may invite the decision-maker to reconsider the decision.
(2) On being invited by the Tribunal to reconsider the reviewable
decision, the decision-maker may—
(a) affirm the decision; or
(b) vary the decision; or
(c) set aside the decision and substitute a new decision.
(3) If the decision-maker varies the decision or sets it aside and
substitutes a new decision, unless the proceedings for a review is withdrawn,
the proceedings will then be taken to be for—
(a) the review of the decision as varied; or
(b) the review of the substituted decision.
Part 4—Principles,
powers and procedures
Division 1—Principles
governing hearings
39—Principles
governing hearings
(1) On the hearing of
any proceedings (other than contempt proceedings), but subject to the provisions
of a relevant Act—
(a) the procedure of the Tribunal will, subject to this Act, be conducted
with the minimum of formality; and
(b) the Tribunal is not
bound by the rules of evidence and may inform itself as it thinks fit;
and
(c) the Tribunal must
act according to equity, good conscience and the substantial merits of the case
and without regard to legal technicalities and forms.
(2) Nothing in
subsection (1)
limits the extent to which the Tribunal should, in the exercise of its original
jurisdiction, apply the laws and rules of evidence and procedure to the extent
that is appropriate in view of any adjudicative function that is required to be
performed for the purposes of determining a dispute between 2 or more
parties.
40—Power
to require person to give evidence or to produce evidentiary
material
(1) The Tribunal may,
on the application of a party to proceedings or on its own initiative, issue a
summons requiring a person to appear before the Tribunal at a specified time and
place to give evidence or to produce evidentiary material (or both).
(2) A summons to produce evidentiary material may, instead of providing
for production of the material before the Tribunal, provide for production of
the material to an officer of the Tribunal, or to any person nominated in the
summons.
(3) The Tribunal may—
(a) retain any document, object or substance produced before it for such
reasonable period as it thinks fit, and make copies of any document;
and
(b) require a person to make an oath or affirmation (which may be
administered by any member or officer of the Tribunal) to answer truthfully
questions put by any member of the Tribunal or any person appearing before the
Tribunal; and
(c) require any person to answer any questions put by any member of the
Tribunal or any person appearing before the Tribunal that are determined by the
Tribunal to be relevant to the proceedings before the Tribunal.
(4) A person who is called to give evidence or to produce evidentiary
material before the Tribunal and—
(a) refuses or fails to make an oath or affirmation when required to do so
under this section; or
(b) refuses or fails without reasonable excuse to produce evidentiary
material that the person is required by the Tribunal to produce; or
(c) refuses or fails to appear before the Tribunal in response to a
summons; or
(d) refuses or fails to give evidence before the Tribunal or otherwise
refuses or fails to answer any question put in proceedings before the Tribunal
or otherwise required under this Act; or
(e) gives false or misleading evidence to the Tribunal; or
(f) misbehaves before the Tribunal, willfully insults the Tribunal or 1 or
more members or officers of the Tribunal in the exercise of official duties, or
willfully interrupts the proceedings of the Tribunal,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 6 months.
(5) If a person
summoned under
subsection (1) fails
to appear before the Tribunal or to produce any evidentiary material or any
person, having appeared, refuses or fails to be sworn or to affirm, or to answer
a relevant question when required to do so by the Tribunal, a certificate of the
failure or refusal, signed by a member of the Tribunal or by the Registrar, may
be filed in the Supreme Court.
(6) If a certificate
has been filed under
subsection (5), a
party requiring the appearance of a person, or the production of any material or
the giving of any evidence, may apply to the Supreme Court for an order
directing that the person attend or that any material be produced, or that an
oath or affirmation be made, or that any question put by or before the Tribunal
be answered and on that application the Supreme Court may make such orders
as the Court thinks fit (including orders for costs).
(7) The Supreme Court may require that notice be given of an
application under
subsection (6) to
the person against whom the order is sought or any other person (but an order
may be made, if the Court thinks fit, although no notice has been given of the
application).
(8) A summons under this section may be issued on behalf of the Tribunal
by—
(a) any member of the Tribunal; or
(b) a registrar; or
(c) any other officer authorised under the rules or by the President of
the Tribunal to issue such summonses.
(9) This section does not limit the operation or effect of
section 95.
41—Entry
and inspection of property
(1) A member of the Tribunal may enter any land or building and carry out
any inspection that the Tribunal considers relevant to any proceedings before
the Tribunal.
(2) A member of the Tribunal may authorise an officer of the Tribunal to
enter any land or building and carry out an inspection that the member considers
relevant to any proceedings before the Tribunal.
(3) A person who obstructs a member of the Tribunal, or a person
authorised by the Tribunal, in the exercise of a power of entry or inspection
under this section is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 6 months.
(1) The Tribunal may refer any question arising in any proceedings for
investigation and report by an expert in the relevant field.
(2) The Tribunal must seek submissions from the parties to the proceedings
before making a reference under this section.
(3) A person to whom a question is referred under this section becomes an
officer of the Tribunal and may exercise such powers of the Tribunal as the
Tribunal delegates.
(4) The Tribunal may
adopt a report obtained under this section in whole or in part (or may reject
it).
(5) The rejection of a report under
subsection (4)
does not prevent the Tribunal from making a further reference to an
expert.
(6) The Tribunal may order a party to pay or contribute to the costs of an
expert's investigation and report under this section.
43—Practice
and procedure generally
(1) The Tribunal is to take measures that are reasonably
practicable—
(a) to ensure that the parties to any proceedings have a reasonable
opportunity to understand the nature of the matter under consideration;
and
(b) to ensure that the parties to any proceedings understand the nature of
any assertions made in the proceedings and the legal implications of those
assertions; and
(c) to explain to the parties, if requested to do so, any aspect of the
procedure of the Tribunal, or any decision or ruling made by the Tribunal;
and
(d) to ensure that the parties have the opportunity in any
proceedings—
(i) to call or give evidence; and
(ii) to examine, cross-examine or re-examine witnesses; and
(iii) to be heard or otherwise have their submissions received.
(2) The Tribunal—
(a) is to take all practicable steps to ensure that all relevant material
is disclosed to the Tribunal so as to enable it to determine all the relevant
facts in issue in any proceedings; and
(b) may require evidence or argument to be presented in writing and decide
on the matters on which it will hear oral evidence or argument; and
(c) may limit the time available for presenting the respective cases of
parties before it at a hearing to an extent that it considers would not impede
the fair and adequate presentation of the cases; and
(d) may require a document to be served outside the State; and
(e) may adjourn any proceedings at any time and place (including for the
purpose of enabling the parties to negotiate a settlement or for the purpose of
reconsideration of a decision by the decision-maker).
(3) To the extent that the practice or procedure of the Tribunal is not
prescribed by or under this Act or a relevant Act, it is to be as the Tribunal
determines.
44—Directions
for conduct of proceedings
(1) The Tribunal may give directions at any time in any proceedings and do
whatever is necessary for the speedy and fair conduct of the
proceedings.
(2) The Tribunal may give directions on its own initiative or at the
request of a party.
(3) A directions hearing may be held for the purposes of this section
before any other hearing in any proceedings.
(4) The Tribunal may give a direction requiring a party to produce a
document or other material, or to provide information, to the Tribunal or
another party despite any rule of law relating to privilege (other than legal
professional privilege).
45—Consolidating
and splitting proceedings
(1) The Tribunal may direct that 2 or more proceedings that concern the
same or related facts or circumstances—
(a) be consolidated into 1 proceeding; or
(b) remain as separate proceedings but be heard and determined
together.
(2) If proceedings are consolidated, evidence given in the consolidated
proceedings is admissible in relation to matters involved in either of the
proceedings that were consolidated.
(3) The Tribunal may direct—
(a) that any aspect of any proceedings be heard and determined
separately;
(b) that proceedings commenced by 2 or more persons jointly be split into
separate proceedings.
The Tribunal may, at any time, make an order striking out all, or any part,
of any proceedings if it considers that the matter, or any aspect of it, would
be more appropriately dealt with by another tribunal, a court, or any other
person.
47—Dismissing
proceedings on withdrawal or for want of jurisdiction
(1) The applicant in
any proceedings may withdraw or agree to the withdrawal of the proceedings or a
part of the proceedings.
(2) Unless otherwise provided by the rules, an applicant can only act
under
subsection (1) with
the leave of the Tribunal.
(3) The Tribunal may make an order dismissing or striking out all, or any
part, of any proceedings if the applicant withdraws or agrees to the withdrawal
of the proceedings or that part of it.
(4) At any time, the
Tribunal may make an order dismissing or striking out all, or any part, of any
proceedings for want of prosecution.
(5) The Tribunal's power to make an order under
subsection (4) is
exercisable only by a legally qualified member of the Tribunal.
(6) The Tribunal may make an order under this section on the application
of a party or on its own initiative.
48—Frivolous,
vexatious or improper proceedings
(1) This section applies if the Tribunal believes that a
proceeding—
(a) is frivolous, vexatious, misconceived or lacking in substance;
or
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process.
(2) If this section
applies, the Tribunal may order that the proceeding be dismissed or struck out
and may make any related or ancillary order.
(3) The Tribunal may act under
subsection (2) on
the application of a party or on its own initiative.
(4) If a proceeding is dismissed or struck out under this section, another
proceeding of the same kind in relation to the same matter cannot be commenced
before the Tribunal without the leave of a Presidential member.
49—Proceedings
being conducted to cause disadvantage
(1) This section applies if the Tribunal believes that a party to any
proceedings is conducting the proceedings in a way that unnecessarily
disadvantages another party to the proceedings by conduct such
as—
(a) failing to comply
with an order or direction of the Tribunal without reasonable cause;
or
(b) failing to comply
with this Act or a relevant Act; or
(c) asking for an adjournment the need for which is attributable to a
failure described in
paragraph (a) or
(b); or
(d) attempting to deceive another party or the Tribunal; or
(e) vexatiously conducting the proceedings; or
(f) failing to attend any hearing in the proceedings.
(2) If this section
applies, the Tribunal may—
(a) if the party causing the disadvantage is the applicant, order that the
proceedings be dismissed or struck out; and
(b) if the party causing the disadvantage is not the
applicant—
(i) determine the proceedings in favour of the applicant and make any
appropriate orders; or
(ii) order that the party causing the disadvantage be struck out of the
proceedings.
(3) The Tribunal may act under
subsection (2) on
the application of a party or on its own initiative.
(4) If any proceedings are dismissed or struck out under this section,
another proceeding of the same kind in relation to the same matter cannot be
commenced before the Tribunal without the leave of a Presidential
member.
Division 4—Conferences,
mediation and settlement
(1) The Tribunal may, at an initial directions hearing or at any other
time, require parties to any proceedings to attend a compulsory
conference.
(2) The Tribunal must,
if so required by the rules or a relevant Act, require parties to attend a
compulsory conference.
(3) Despite
subsection (2), the
Tribunal may dispense with a conference if it is of the opinion
that—
(a) no useful purpose would be served by a conference between the parties;
or
(b) there is some other reason that justifies dispensing with the
conference.
(4) The purpose of a compulsory conference is to identify and clarify the
issues in the proceedings and to promote the resolution of the matters by a
settlement between the parties.
(5) A compulsory conference may, at the discretion of the member of the
Tribunal presiding at the conference, be adjourned or reconvened from time to
time.
(6) Unless the member of the Tribunal presiding at the conference directs
otherwise, a compulsory conference is to be held in private.
(7) Subject to this section and except to the extent to which the rules
may specify the procedure for a compulsory conference, the member of the
Tribunal presiding at a compulsory conference may determine the procedure for
the conference.
(8) The member of the Tribunal presiding at a compulsory conference
may—
(a) if that member is not a Presidential member—refer any question
of law to a Presidential member of the Tribunal for determination;
(b) require a party to the proceedings to furnish particulars of his or
her case;
(c) determine who, apart from the parties to the proceedings (and their
representatives), may be present at the conference;
(d) subject to
subsection (10),
record any settlement reached at a conference and make any determination or
order (including an order under, or for the purposes of, a relevant Act)
necessary to give effect to a settlement;
(e) on his or her own initiative, close the conference at any time if, in
his or her opinion, settlement cannot be reached;
(f) advise the Tribunal if the conference does not reach a settlement
within a reasonable time;
(g) permit a party to withdraw from the proceedings (and make any
consequential order that is appropriate in the circumstances);
(h) determine a matter against any party who obstructs or delays the
conference, fails to attend the conference, or fails to comply with a rule or
order of the Tribunal and, in so doing, make any order as the member of the
Tribunal thinks fit (including an order as to costs);
(i) do such other things as the rules of the Tribunal so
provide.
(9) Evidence of anything said or done in the course of a compulsory
conference under this section is inadmissible in proceedings before the Tribunal
except by consent of all parties to the proceedings.
(10) The member of the
Tribunal presiding at a compulsory conference—
(a) must not accept a settlement that appears to be inconsistent with a
relevant Act (but he or she may adjourn the proceedings to enable the parties to
explore the possibility of varying the settlement to comply with a relevant
Act); and
(b) may decline to accept a settlement on the basis that the settlement
may materially prejudice any person who was not represented at the conference
but who has a direct or material interest in the matter.
(11) If the member of the Tribunal presiding at a conference is unable to
continue with the conference, another member of the Tribunal may be appointed to
continue and complete the conference.
(12) Unless all parties to the proceedings agree to his or her continued
participation, the member of the Tribunal who presided at the conference is
disqualified from sitting as a member of the Tribunal for the purpose of hearing
and determining the matter.
(13) A registrar is expressly authorised to constitute the Tribunal for
the purposes of this section.
(1) The Tribunal may, at an initial directions hearing or at any other
time, refer the matter, or any aspect of the matter, for mediation by a person
specified as a mediator by the Tribunal.
(2) The person specified as a mediator must be a person who has been
approved by the President of the Tribunal to act as a mediator.
(3) The referral may be made with or without the consent of the
parties.
(4) The purpose of a mediation is to achieve the resolution of the matters
by a settlement between the parties.
(5) The rules may specify how notice of the mediation is to be given, how
the mediation is to be conducted, and the fees to be paid by a party to the
mediation.
(6) Unless the mediator directs otherwise, the mediation is to be held in
private.
(7) Subject to this section and except to the extent to which the rules
may specify the procedure for a mediation, the mediator may determine the
procedure for the mediation.
(8) If the mediator is a member of the Tribunal and a settlement is
reached at the mediation, the mediator may reduce the terms of the settlement to
writing and make any determination or order (including an order under, or for
the purposes of, a relevant Act) necessary to give effect to the
settlement.
(9) If a settlement is not reached at the mediation or the mediator is not
a member of the Tribunal, the mediator is to report on the outcome of the
mediation to the Tribunal as constituted when it made the referral.
(10) Any settlement under this section—
(a) must not be inconsistent with a relevant Act; and
(b) may be rejected by the Tribunal on the basis that the settlement may
materially prejudice any person who has not participated in the mediation but
who has a direct or material interest in the matter.
(11) Evidence of anything said or done in the course of a mediation under
this section is inadmissible in proceedings before the Tribunal except by
consent of all parties to the proceedings.
(12) If the mediator is a member of the Tribunal, the member cannot take
any further part in dealing with the proceedings after the mediation, unless all
parties to the proceedings agree to his or her continued
participation.
(1) The Tribunal may itself endeavour to achieve a negotiated settlement
of a matter before the Tribunal.
(2) If the parties
agree in writing to settle a matter before the Tribunal, the Tribunal may make
any determination or order (including an order under, or for the purposes of a
relevant Act) necessary to give effect to the settlement.
(3) A settlement under this section must not be inconsistent with a
relevant Act and the Tribunal may reject a settlement under
subsection (2) on
the basis that the settlement may materially prejudice any person who is not a
party to the settlement but who has a direct or material interest in the
matter.
(1) A person is a
party to proceedings before the Tribunal if the person is—
(a) the applicant; or
(b) in the case of any disciplinary proceedings or any proceedings
constituted by any inquiry into a person—the person who is the subject of
the proceedings; or
(c) in the case of proceedings involving the review of a
decision—the decision-maker; or
(d) a person joined in the proceedings by order of the Tribunal;
or
(e) a person lawfully intervening in the proceedings; or
(f) a person specified by another provision of this Act or a relevant Act
to be a party to the proceedings.
(2)
Subsection (1)
applies subject to any provision or exclusion made by the rules of the
Tribunal.
(3) In any proceedings where a decision-maker is a party, the official
description rather than the personal name of the decision-maker is to be used so
far as is practicable.
54—Person
may be joined as party
(1) The Tribunal may order that a person be joined as a party to
proceedings before the Tribunal if the Tribunal considers that—
(a) the person should be bound by, or have the benefit of, a decision of
the Tribunal in the proceedings; or
(b) the person's interests are affected by the proceedings; or
(c) for any other reason it is desirable that the person be joined as a
party.
(2) The Tribunal may make an order under this section—
(a) on the application of any person or on its own initiative;
and
(b) without notice to the person to whom the order relates.
(1) The Attorney-General may, on behalf of the State, intervene in any
proceedings before the Tribunal at any time.
(2) The Tribunal may give leave at any time for any other person to
intervene in proceedings before the Tribunal on conditions, if any, that the
Tribunal thinks fit.
(1) A party to proceedings before the Tribunal is entitled to appear
(subject to the provisions of a relevant Act)—
(a) personally; or
(b) by counsel; or
(c) with the leave of the Tribunal and subject to the rules—by other
representative.
(2) Unless otherwise determined by the Tribunal, a person appearing before
the Tribunal may be assisted by another person as a friend.
(3) If 1 party appears in person and another party is represented by
counsel, the Tribunal should adopt an inquisitional approach with respect to any
matter to the extent necessary to ensure that the unrepresented party is not
unreasonably disadvantaged.
(1) Unless otherwise specified in this Act, a relevant Act, or an order of
the Tribunal under this section, parties bear their own costs in any proceedings
before the Tribunal.
(2) Unless otherwise
specified in a relevant Act, the Tribunal may make an order for the payment by a
party of all or any of the costs of another party, or of a person required to
appear before the Tribunal or to produce evidential material, if the Tribunal
thinks that it is appropriate to do so after taking into
account—
(a) the main objectives of the Tribunal that are relevant to simplifying
proceedings and issues before the Tribunal and to keeping costs to parties in
proceedings before the Tribunal to a minimum insofar as is just and appropriate;
and
(b) the need to ensure that proceedings are fair and that parties are not
disadvantaged by proceedings that have little or no merit; and
(c) any provision made by the rules; and
(d) any other matter considered relevant by the Tribunal.
(3) Without limiting
subsection (2), if
the Tribunal dismisses or strikes out any proceedings in any prescribed
circumstances, the Tribunal should also make an order for costs against the
party against whom the action is directed unless the Tribunal is of the opinion
that there is a good reason for not making an order in the circumstances of the
particular case.
(4) If the Tribunal makes an order of the payment of costs and does not
fix the amount of costs, that amount is to be assessed and settled in accordance
with the rules.
(1) The power of the Tribunal to make an order for the payment by a party
of the costs of another party includes the power to make an order for the
payment of an amount to compensate the other party for any expenses, loss,
inconvenience or embarrassment resulting from any proceedings or
matter.
(2) Without limiting anything else that may be considered in making an
order for the payment by a party of the costs of another party, where the matter
that is the subject of any proceedings comes within the Tribunal's review
jurisdiction, the Tribunal is to have regard to—
(a) whether the party genuinely attempted to enable and assist the
decision-maker to make a decision on its merits;
(b) whether the party (being the decision-maker) genuinely attempted to
make a decision on its merits.
(3) The rules may deal with the effect of certain offers to settle, and
the response, if any, to the offer, on the making of an order for the payment by
a party of the costs of another party.
(4) The Tribunal may order that the representative of a party, rather than
the party, in the representative's own capacity compensate that or any other
party for costs incurred because the representative acted in, or delayed, any
proceedings in a way that resulted in unnecessary costs.
Division 8—Other
procedural and related provisions
The Tribunal will sit at such times and places as the President of the
Tribunal may direct (including at different places at the same time).
(1) Subject to this or any other Act, proceedings before the Tribunal must
be heard in public.
(2) The Tribunal may,
where it is satisfied that it is desirable to do so—
(a) in the interest of justice; or
(b) by reason of the confidential nature of the evidence to be given
before the Tribunal; or
(c) in order to expedite proceedings of the Tribunal; or
(d) for any other reason that the Tribunal thinks sufficient,
give directions—
(e) requiring that a hearing, or part of a hearing, be held in private;
or
(f) prohibiting or restricting the publication of the name and address of
a witness appearing before the Tribunal; or
(g) prohibiting or restricting the publication of evidence given before
the Tribunal or of the contents of any document produced to the Tribunal;
or
(h) prohibiting or restricting the disclosure to some or all of the
parties to proceedings before the Tribunal of evidence given before the Tribunal
or of the contents of any document produced to the Tribunal; or
(i) excluding any person from the hearing before the Tribunal of any part
of the proceedings.
(3) A person must comply with a direction of the Tribunal under
subsection (2).
Maximum penalty: $10 000.
61—Preserving
subject matter of proceedings
(1) The Tribunal may,
on such terms as appear just, make any order that may be necessary to preserve
the subject matter of proceedings, or to otherwise protect the interests of a
party, until questions arising in the proceedings have been finally
determined.
(2) The Tribunal's power to make an order under
subsection (1) is
exercisable by—
(a) a Presidential member of the Tribunal; or
(b) any other legally qualified member of the Tribunal who is authorised
by the President of the Tribunal to make orders under this section.
(3) The Tribunal may make the order on the application of a party or on
its own initiative.
(4) An order may be made under this section whether or not a person whose
interests may be affected—
(a) is a party; or
(b) has been given an opportunity to be heard.
(5) An order may be made under this section—
(a) for a specified period; or
(b) until a specified event or stage in the proceedings.
(6) In making an order
under this section, the Tribunal—
(a) may require an
undertaking as to costs or damages as it considers appropriate; and
(b) may provide for the revocation of the order if specified conditions
are met.
(7) The Tribunal may assess any costs or damages referred to in
subsection (6)(a)
and any amount so assessed is recoverable as a debt in a court of competent
jurisdiction.
(8) The rules may place conditions on the Tribunal's power to make an
order under this section.
(9) The Tribunal's power under this section is in addition to, and does
not limit, any power of the Tribunal under a relevant Act to make an order in
the nature of an injunction or interim injunction.
(1) The Tribunal may
order a party to proceedings before the Tribunal to give security for the
payment of costs or to give an undertaking as to the payment of other monetary
amounts that may be awarded against the party.
(2) The security referred to in
subsection (1)
will be of such amount, and given at such time and in such manner and form, as
the Tribunal directs.
(3) The Tribunal may reduce or increase the amount of security ordered
under
subsection (1) to be
given and may vary the time at which, or the manner or form in which, the
security is to be given.
(4) If security, or further security, or an undertaking, is not given in
accordance with an order under this section, the Tribunal may order that the
proceedings be dismissed (with costs), or that a determination (with costs) be
made against the party.
(5) The provisions of this section relating to security, or the giving of
an undertaking, do not affect the operation of any provision made by or under a
relevant Act or by the rules for or in relation to the furnishing of security,
the giving of an undertaking or the imposition of costs.
(6) A member of the Tribunal who is not a legally qualified member of the
Tribunal may not make an order under this section except with the concurrence of
a legally qualified member.
The Tribunal has power, in relation to matters within its jurisdiction, to
make interlocutory orders.
(1) The Tribunal may,
on matters within its jurisdiction, make binding declarations of right whether
or not any consequential relief is or could be claimed.
(2)
Subsection (1)
operates subject to any provision made by the rules about how the Tribunal must
be constituted in order that it may make such a declaration.
65—Conditional,
alternative and ancillary orders and directions
(1) The Tribunal may make orders and give directions on conditions the
Tribunal considers appropriate.
(2) The Tribunal may make orders in the alternative so that a particular
order takes effect, or does not take effect, according to whether stipulated
conditions are complied with.
(3) The Tribunal may, when making an ancillary order, provide that a
decision of the Tribunal is to be implemented by a person who is not a party to
the relevant proceedings.
(1) The Tribunal may refer any question arising in any proceedings to a
special referee for the special referee—
(a) to decide the question; or
(b) to give his or her opinion in relation to it.
(2) The Tribunal may adopt a special referee's decision or opinion, in
whole or in part, or reject it.
(1) The rules may provide for the Tribunal to extend or abridge a time
limit for doing anything in connection with any proceedings, or the commencement
of any proceedings, even though the limit is imposed under this Act or a
relevant Act.
(2) The extension—
(a) may be authorised even though the time for complying has passed;
and
(b) may be given on conditions specified by the Tribunal.
68—Electronic
hearings and proceedings without hearings
(1) If the Tribunal thinks it appropriate, it may allow the parties and
their representatives and any witnesses (or 1 or more of them) to participate in
a hearing in any proceedings by means of telephone, video link, or any other
system or method of communication.
(2) If the Tribunal thinks it appropriate, it may conduct all or part of
any proceedings entirely on the basis of documents without the parties or their
representatives or any witnesses attending or participating in a
hearing.
(3) If the Tribunal acts under this section, the Tribunal is to take steps
to ensure that the public has access to, or is precluded from access to, matters
disclosed in the proceedings to the same extent as if the proceedings have been
heard before the Tribunal with the attendance in person of all persons involved
in the proceedings.
69—Completion
of part-heard matters
A person who ceases to hold office as a member of the Tribunal may
nevertheless continue to act in the relevant office for the purpose of
completing the hearing and determination of proceedings part-heard by the person
when he or she ceased to hold that office.
70—Disclosures
contrary to public interest
(1) In this section—
certificate means a certificate under
subsection (2);
document includes a part of a document.
(2) The
Attorney-General may certify in writing that the disclosure of information about
a specified matter, or the disclosure of any matter contained in a document, in,
or in connection with, proceedings of the Tribunal would be contrary to the
public interest for a reason described in
subsection (3)
that is specified in the certificate.
(3) The certificate may
specify that the disclosure would be contrary to the public
interest—
(a) because the disclosure would reveal deliberations or decisions
of—
(i) Cabinet; or
(ii) a committee of Cabinet; or
(iii) a subcommittee of a committee of Cabinet; or
(iv) Executive Council; or
(b) because the disclosure would reveal something that parliamentary
privilege protects from disclosure; or
(c) because the disclosure would endanger the national or international
security of South Australia or Australia; or
(d) because the disclosure would damage inter-governmental relations;
or
(e) for any other reason that could form the basis for a claim by the
State in a proceeding in the Supreme Court that the information or matter should
not be disclosed.
(4) The Tribunal
constituted by the President sitting alone may order that the disclosure of any
particular information or document to which a certificate applies would not be
contrary to the public interest and, subject to
subsection (7), the
order has effect despite the certificate.
(5) Any information or document to which a certificate applies is
required, if requested, to be disclosed to the Tribunal constituted by the
President sitting alone for the purpose of deciding whether to make an order
under
subsection (4).
(6) For the purposes of this Act, the question of whether or not the
disclosure of any particular information or document would be contrary to the
public interest is a question of law.
(7) If the
Attorney-General appeals under this Act against a decision of the Tribunal to
make an order under
subsection (4), the
Attorney-General may notify the Tribunal in writing that the certificate is
confirmed and in that case the certificate continues to have effect and the
order ceases to have effect pending the determination of the appeal.
71—Tribunal's
duties as to protected matter
(1) The Tribunal is to ensure that matter provided to the Tribunal, that
the Tribunal considers to be protected matter, is returned to the person by whom
it was provided when no longer required by the Tribunal.
(2) The Tribunal is to ensure that matter provided to the Tribunal that
the Tribunal considers to be protected matter is not disclosed in any way other
than to—
(a) a sitting member of the Tribunal; or
(b) a person to whom disclosure is allowed under
subsection (3).
(3) The Tribunal, with
the consent of the President, may allow a party, or a representative of a party,
to have access to information, or inspect a document, to which a certificate
under
section 70(2)
applies on any conditions the Tribunal thinks fit except that a person cannot be
given access to matter that the Tribunal considers to be exempt matter, or
allowed to inspect a document that the Tribunal considers to be an exempt
document.
(4) This section prevails over any other section of this Act relating to
the production, disclosure or publication of any document, information or
evidentiary material.
(5) In this section—
exempt matter means any matter included in an exempt
document.
72—Privilege
against self-incrimination
(1) A person is not excused from complying with a requirement under this
Act to answer a question or produce a document or other material in any
proceedings on the ground that the answer or the production of the document or
other material might incriminate the person or render the person liable to a
penalty.
(2) However, neither—
(a) an answer given by the person that was given to comply with the
requirement; nor
(b) the fact that a document or other material produced by the person to
comply with the requirement was produced,
is admissible in evidence in any criminal proceedings against the person
other than proceedings for perjury or for an offence against this Act arising
out of the false or misleading nature of an answer.
(1) Unless it would be contrary to section 72 or a direction under
section 44(4), a person is excused from answering a question or producing a
document or other material in any proceedings if the person could not be
compelled to answer the question or produce the document or material in
proceedings in the Supreme Court.
(2) The Tribunal may require a person to produce a document or other
material to it for the purpose of determining whether or not it is a document or
material that the Tribunal has power to compel the person to produce.
(1) Subject to this
section and to any provision of a relevant Act as to the review of, or appeal
against, a decision of the Tribunal, an application for a review of a decision
of the Tribunal in the exercise of its original jurisdiction may be made under
this section.
(2) An application for
review must be instituted within 1 month of the making of the decision to
which the application relates but the Tribunal may, if it is satisfied that it
is just and reasonable in the circumstances to do so, dispense with the
requirement that the application should be instituted within that
period.
(3) If an application
for review relates to an interlocutory matter or a costs matter (and no other
matter), the Tribunal will, for the purposes of the review, according to a
determination of the President, be constituted by—
(a) a Presidential member of the Tribunal; or
(b) another legally qualified member of the Tribunal.
(4) If an application
for review falls outside the ambit of
subsection (3)—
(a) unless
paragraph (b) or
(c) applies, the Tribunal
will, for the purposes of the review, be constituted by—
(i) a Presidential member of the Tribunal; or
(ii) another legally qualified member of the Tribunal; or
(b) unless
paragraph (c)
applies, in the case of an application that relates to a decision made by the
Tribunal when—
(i) constituted of a Presidential member of the Tribunal; or
(ii) constituted of 2 or 3 members including a Presidential
member,
the Tribunal will, for the purposes of the review, be constituted by the
President; or
(c) in a case where the
President considers that the justice of the case requires, the Tribunal will,
for the purposes of the review, be constituted by 3 members including at
least 1 Presidential member.
(5) Any question as to the constitution of the Tribunal under this section
will be determined by the President of the Tribunal.
(6) On a review, the Tribunal will examine the decision of the Tribunal at
first instance on the evidence or material before the Tribunal at that time but
the Tribunal may, as it thinks fit, allow further evidence or material to be
presented to it.
(7) The Tribunal may, on a review under this section—
(a) affirm the decision that is being reviewed; or
(b) vary the decision that is being reviewed; or
(c) set aside the decision being reviewed and—
(i) substitute a new decision; or
(ii) return the matter to the Tribunal as constituted at first instance
for reconsideration in accordance with any directions or recommendations that
the Tribunal acting on review considers appropriate.
(8) The Tribunal may, on a review, make any ancillary or consequential
order that the Tribunal considers appropriate.
(9) In this section—
costs matter—this is a decision of the Tribunal under
Part 4
Division 7;
decision includes an order;
interlocutory matter—this is a decision of the Tribunal
that is made before the conclusion of the hearing of proceedings before the
Tribunal.
(1) Subject to this section and to any provision of a relevant Act as to
the review of, or appeal against, a decision of the Tribunal, an appeal
lies—
(a) in the case of a decision of the Tribunal—
(i) constituted of a Presidential member of the Tribunal; or
(ii) constituted of 2 or 3 members including a Presidential
member,
to the Full Court of the Supreme Court; or
(b) in any other case—to the Supreme Court constituted of a single
Judge.
(2) An appeal under this section is only by leave of the Supreme Court
(but this principle may be displaced or modified by the provisions of a relevant
Act).
(3) An appeal must be instituted within 1 month of the making of the
decision to which the appeal relates but the Supreme Court may, if it is
satisfied that it is just and reasonable in the circumstances to do so, dispense
with the requirement that the appeal should be instituted within that
period.
(4) The Supreme Court may, on an appeal under this
section—
(a) affirm the decision appealed against; or
(b) vary the decision appealed against; or
(c) set aside the decision appealed against and—
(i) substitute a new decision; or
(ii) return the matter to the Tribunal for reconsideration in accordance
with any directions or recommendations that the Court considers
appropriate.
(5) The Supreme Court may, on an appeal, make any ancillary or
consequential order that the Court considers appropriate.
(6) In this section—
decision includes an order.
76—Reservation
of questions of law
(1) A Presidential member of the Tribunal may reserve any question of law
arising in any proceedings (including on referral to the Presidential member)
for determination by the Full Court of the Supreme Court.
(2) If a question of law is reserved, the Supreme Court may determine the
question and give any consequential orders or directions considered by the Court
to be appropriate to the circumstances of the case.
77—Effect
of review or appeal on decision
(1) The commencement of proceedings under this Part does not affect the
operation of the decision to which the proceedings relate or prevent the taking
of action to implement such a decision.
(2) However, the
Tribunal or the Supreme Court may make an order staying the operation of the
relevant decision until the proceedings are finally decided (on such conditions
as may be specified in the order).
(3) The Tribunal or the Supreme Court may act under
subsection (2) on
application or on its own initiative.
(4) The Tribunal's
power to act under
subsection (2) is
exercisable only by a Presidential member of the Tribunal.
(1) There is to be a principal registrar of the Tribunal (to be known as
the Registrar).
(2) There will be 1 or more other registrars of the Tribunal (to be known
as Deputy Registrars).
(3) A registrar
will be appointed by the Governor on terms and conditions determined by the
Governor for a term, not exceeding 5 years, specified in the instrument of
appointment (and is, on the expiration of a term of office, eligible for
reappointment).
(4) The Governor
may remove a person from the office of registrar for—
(a) mental or physical incapacity to carry out official duties
satisfactorily; or
(b) neglect of duty; or
(c) dishonourable conduct.
(5) A person ceases to be a registrar if the person—
(a) dies; or
(b) completes a term of office and is not reappointed; or
(c) resigns by written notice to the Minister; or
(d) is removed from office under
subsection (4).
(6) If there is a vacancy in the office of a registrar or a registrar is
absent or for any other reason is unable to perform the duties of the office,
the Minister may appoint a person to act in the relevant position.
(7) The Minister must consult with the President of the Tribunal before an
appointment is made under this section.
(8) The office of the Registrar or of a Deputy Registrar may be held in
conjunction with another office in the public service of the State.
(1) The functions of the Registrar are—
(a) to assist the President of the Tribunal in the administration of the
Tribunal; and
(b) to be responsible for the registry and records of the Tribunal;
and
(c) to undertake responsibility for the day-to-day case management of the
Tribunal; and
(d) to constitute the Tribunal to the extent specified under this Act;
and
(e) other functions assigned to the Registrar by the President or under
the rules of the Tribunal.
(2) The functions of a Deputy Registrar are—
(a) to assist the Registrar in the performance of the Registrar's
functions; and
(b) to constitute the Tribunal to the extent specified under this Act;
and
(c) other functions assigned to the Deputy Registrar by the Registrar or
under the rules of the Tribunal.
(3) A registrar is, in the performance of any function or the exercise of
any power, subject to the direction of the President of the Tribunal.
(1) A registrar may
delegate a function of the registrar under this Act—
(a) to a particular person or committee; or
(b) to the person for the time being performing particular duties or
holding or acting in a particular position.
(2) A delegation under
subsection (1)—
(a) must be made by instrument in writing; and
(b) may be conditional; and
(c) does not derogate from the ability of the registrar to act in any
matter; and
(d) is revocable at will by the registrar.
Division 2—Other
staff of Tribunal
There will be other staff of the Tribunal consisting of persons employed in
a public sector agency and made available to act as members of the staff of the
Tribunal.
Division 3—Use
of services or staff
The Tribunal may, by arrangement with the relevant body, make use of the
facilities, staff or equipment of—
(a) an administrative unit in the Public Service; or
(b) the State Courts Administration Council; or
(c) another public agency or authority.
(1) A member of the Tribunal, mediator, expert or special referee has the
same protections, privileges and immunities from liability as a Judge of the
Supreme Court.
(2) A member of the staff of the Tribunal incurs no civil or criminal
liability for an honest act or omission in carrying out or purportedly carrying
out official functions.
(3) A person representing a party to proceedings before the Tribunal has
the same protection and immunity as a legal practitioner has in representing a
party in proceedings in the Supreme Court.
(4) A party to proceedings before the Tribunal has the same protection and
immunity as a party to proceedings in the Supreme Court.
(5) A person who appears as a witness before the Tribunal has the same
protection as a witness in proceedings before the Supreme Court.
(6) A person taking evidence on behalf of the Tribunal has, in doing so,
the same protections, privileges and immunities as a member of the
Tribunal.
84—Protection
from liability for torts
(1) An action in tort
does not lie against a person for anything that the person has done, in good
faith, in the performance or purported performance of a function under this Act
or a relevant Act as a member of the Tribunal or as a member of staff of the
Tribunal.
(2) The Crown is also relieved of any liability that it might otherwise
have had for a person having done anything as described in
subsection (1).
(3) The protection given by this section applies even though the thing
done as described in
subsection (1) may
have been capable of being done whether or not this Act or a relevant Act had
been enacted.
(4) In this section, a reference to the doing of anything includes a
reference to an omission to do anything.
85—Protection
for compliance with Act
(1) No civil or criminal liability attaches to a person for compliance, or
purported compliance, in good faith, with a requirement of this Act.
(2) In particular, if a person produced a document or other material as
required under this Act, no civil liability attaches to the person for producing
the document or material, whether the liability would arise under a contract or
otherwise.
86—Alternative
orders and relief
Although a particular form of order or relief is sought by an applicant in
proceedings before the Tribunal, the Tribunal may make any other form of order
or grant any other form of relief that it considers more appropriate in the
circumstances of the case.
87—Power
to cure irregularities
(1) Where in proceedings before the Tribunal or on appeal from the
Tribunal to the Supreme Court it appears to the Tribunal or the
Court—
(a) that some irregularity has occurred affecting the proceedings or any
matter to which the proceedings relate; and
(b) that it would conduce to the expeditious resolution of the questions
of substance at issue between the parties if the powers conferred by this
section were exercised,
the Tribunal or the Court may cure the irregularity by ordering that,
subject to the fulfilment of such conditions as may be stipulated by the
Tribunal or the Court, the requirement of this Act, or of any other Act or law,
be dispensed with to the extent necessary for the purpose.
(2) An order under this section does not affect the rights or liabilities
of persons who are not parties to the proceedings.
(1) The Tribunal may correct a decision it gives or a statement of the
reasons it has given for its decision to the extent necessary to
rectify—
(a) a clerical mistake; or
(b) an error arising from an accidental slip or omission; or
(c) a material miscalculation of figures or a material mistake in the
description of any person, thing or matter referred to in the decision;
or
(d) a defect of form.
(2) The correction may be made—
(a) on a party's application made in accordance with the rules;
or
(b) on the Tribunal's own initiative.
89—Tribunal
may review its decision if person was absent
(1) In this section—
relevant hearing, in relation to a decision of the Tribunal,
means a hearing at which the decision was made or which preceded the making of
the decision but does not include a compulsory conference or
mediation.
(2) A person in respect of whom the Tribunal makes a decision may apply to
the Tribunal for a review of the decision if the person did not appear and was
not represented at a relevant hearing.
(3) The application has to be made within the time limits specified by,
and otherwise in accordance with, the rules.
(4) The rules may limit the number of applications that can be made under
this section in respect of the same matter without leave of the
Tribunal.
(5) If on hearing the application the Tribunal is satisfied that the
applicant had a reasonable excuse for not attending or being represented at the
relevant hearing, the Tribunal is to review the decision and may revoke or vary
it if the Tribunal considers it appropriate to do so.
(6) For the hearing of the application, the Tribunal is to be constituted
by the members by whom it was constituted when it made the decision, if that is
practicable.
(7) A review under this section—
(a) is part of the original proceedings; and
(b) is not a review of a decision for the purposes of
section 34.
90—Tribunal
may authorise person to take evidence
(1) The Tribunal may
authorise, in writing, a person (whether or not a member of the Tribunal) to
take evidence on behalf of the Tribunal for the purposes of any
proceedings.
(2) The Tribunal's power under
subsection (1) to
authorise the taking of evidence is exercisable only by a Presidential
member.
(3) The Tribunal may authorise evidence to be taken under this section
outside South Australia.
(4) The Tribunal may give directions as to the taking of evidence under
this section.
(5) If a person other than a member of the Tribunal is authorised to take
evidence the person has all the powers of a member of the Tribunal in relation
to the taking of evidence.
(6) Evidence taken under this section—
(a) is to be regarded as having been given to the Tribunal; and
(b) if taken outside South Australia, is to be regarded as having been
given in South Australia.
91—Miscellaneous
provisions relating to legal process and service
(1) Any process of the Tribunal may be issued, served or executed on a
Sunday as well as any other day.
(2) The validity of process is not affected by the fact that the person
who issued it dies or ceases to hold office.
(3) If it is not
practicable to serve any process, notice or other document relating to any
proceedings in the manner otherwise prescribed or contemplated by law, the
Tribunal may, by order—
(a) provide for service by post, or in any other way (including by
substituted service) authorised by the regulations; or
(b) make any other provision that may be necessary or desirable for
service.
(4) Any process, notice or other document served in accordance with an
order under
subsection (3) will,
despite any other law, be taken to have been duly served.
(5) A registrar is expressly authorised to make an order under
subsection (3).
92—Proof
of decisions and orders of Tribunal
An apparently genuine document purporting to be a copy of a decision or
order of the Tribunal and to be certified as such by a registrar will be
accepted in any legal proceedings, in the absence of proof to the contrary, as a
true copy of a decision or order of the Tribunal.
93—Enforcement
of decisions and orders of Tribunal
(1) Where a decision or order is made by the Tribunal, a registrar must,
on application by a party to the proceedings in which the decision was given or
the order was made, or a person claiming through or under such a party, issue a
certified copy of the decision or order.
(2) Where—
(a) a certified copy of a decision or order is lodged with the appropriate
court; and
(b) the fee (if any) payable on lodgement is paid,
the Registrar of the appropriate court must register it and proceedings may
then be taken on it, or any other action taken, as if it were a decision or
order of that court.
(3) A person who contravenes or fails to comply with an order of the
Tribunal (other than a monetary order) is guilty of an offence.
Maximum penalty: $10 000.
(4) In this section—
appropriate court means—
(a) in relation to an order of the Tribunal that is a monetary order for
an amount that does not exceed the amount that represents the jurisdictional
limit of the Magistrates Court for a monetary claim founded on
contract—the Magistrates Court;
(b) in any other case—the District Court.
(1) Subject to this section, the Tribunal must, on application by any
member of the public, allow the applicant to inspect or obtain a copy
of—
(a) any process relating to proceedings and forming part of the Tribunal's
records;
(b) a transcript of evidence taken by the Tribunal in any
proceedings;
(c) any documentary material admitted into evidence in any
proceedings;
(d) any decision or order given or made by the Tribunal;
(e) any other material of a prescribed kind.
(2) A member of the
public may inspect or obtain a copy of the following material only with the
permission of the Tribunal:
(a) material that was not taken or received in open court;
(b) material the disclosure of which would be contrary to a direction or
order of the Tribunal given under another provision of this or any other
Act;
(c) a photograph, slide, film, video tape, audio tape or other form of
recording from which a visual image or sound can be produced;
(d) material of a class prescribed by the regulations.
(3) The Tribunal may permit inspection or copying of material referred to
in
subsection (2)
subject to any condition it considers appropriate, including a condition
limiting the publication or use of the material.
(4) A decision by the Tribunal on an application under this section is
administrative and is final and not subject to any form of review.
(5) The Tribunal may charge a fee, fixed by regulation, for inspection or
copying of material under this section.
(1) If the President is
satisfied that an act or omission of a person would constitute a contempt of the
Court if a proceeding of the Tribunal were a proceeding of the Supreme Court and
that it is appropriate to proceed under this section, the President
may—
(a) refer the matter to the Supreme Court and the Supreme Court has
jurisdiction to deal with the matter as if it were a contempt of that Court;
or
(b) determine to deal with the matter as a judge of the Supreme Court or
District Court (as the case may) as if it were a contempt of the Court of which
the President is a member.
(2) If
subsection (1)
applies to an act or omission that is also an offence against this Act, the
person is not liable to be punished twice.
(1) In this section—
costs of proceedings means costs of, or incidental to, any
proceedings of the Tribunal, other than the costs of a party.
(2) The Tribunal may order that all or any of the costs of proceedings be
paid by a party.
(3) If the matter that is the subject of the proceeding comes within the
Tribunal's review jurisdiction, the Tribunal cannot make an order under this
section against a party unless—
(a) the party brought or conducted the proceedings frivolously or
vexatiously; or
(b) the Tribunal is acting in prescribed circumstances.
(1) The President of the Tribunal must on or before 31 October in each
year make a report to the Attorney-General on the administration and operation
of the Tribunal during the previous financial year.
(2) The Attorney-General must within 12 sitting days after receiving a
report under this section cause copies of the report to be laid before both
Houses of Parliament.
The President of the Tribunal must, at the request of the Attorney-General,
report to the Attorney-General on any matter relevant to the administration or
operation of the Tribunal.
(1) Rules of the Tribunal may be made—
(a) regulating the business of the Tribunal and the duties of the various
members and staff of the Tribunal; and
(b) authorising the registrars and other staff of the Tribunal to exercise
powers with respect to proceedings before the Tribunal and providing for the
internal review of specified classes of decisions in specified circumstances;
and
(c) regulating the practice and procedure of the Tribunal; and
(d) imposing obligations on persons seeking to commence proceedings before
the Tribunal to take any step, including to give a notification to another
person or to provide any specified information; and
(e) providing for the service of applications and documents; and
(f) imposing obligations on parties to proceedings before the Tribunal to
disclose to each other the contents of expert reports or other material of
relevance to the proceedings before or in connection with the hearing of the
proceedings; and
(g) regulating the referral of a matter to mediation, the conduct of
mediations or the referral of questions for investigation and report by an
expert or referee; and
(h) regulating the form in which evidence may be taken; and
(i) restricting or prohibiting certain classes of persons from appearing
as representatives in proceedings before the Tribunal; and
(j) providing for the Tribunal to waive any procedural requirement;
and
(k) regulating costs and providing for the assessment and settling of
costs; and
(l) providing for witness fees; and
(m) providing for other matters relating to the management, conduct or
settlement of proceedings before the Tribunal; and
(n) dealing with any other matters necessary or expedient for the
effective and efficient operation of the Tribunal.
(2) The power to make rules under this section includes the power to make
rules in respect of any jurisdiction conferred on the Tribunal by a relevant
Act.
(3) Rules of the Tribunal may be made by the President and a Deputy
President of the Tribunal.
(4) The rules take effect from the date of publication in the Gazette or a
later date specified in the rules.
(5) The rules must be consistent with the regulations, and with any
relevant Act.
(1) The Governor may
make such regulations as are contemplated by this Act or a relevant Act, or as
are necessary or expedient for the purposes of this Act or a relevant
Act.
(2) Without limiting the generality of
subsection (1), the
regulations may—
(a) provide information to be included in registers to be kept for the
purposes of this Act; and
(b) prescribe matters relevant to the practice or procedures of the
Tribunal; and
(c) prescribe and provide for the payment of fees in relation to
proceedings before the Tribunal; and
(d) prescribe penalties not exceeding $5 000 for contravention of, or
non-compliance with, any regulation.
(3) The regulations may provide that any matter or thing is to be
determined, dispensed with, regulated or prohibited according to the discretion
of the President of the Tribunal or another prescribed person.
(1) The Minister must appoint 1 or more independent persons to conduct a
review under
subsection (2) as
soon as practicable after the expiry of 2 years from the commencement of
Part 3 of this
Act.
(2) The review must
include an assessment of—
(a) the performance of
the Tribunal; and
(b) without limiting
paragraph (a), the
extent to which the main objectives of the Tribunal have been met over the
period to which the review relates; and
(c) the extent to which it would be advantageous to extend the
jurisdiction of the Tribunal to matters arising under other Acts identified by
the person or persons conducting the review or identified by the Minister for
the purposes of the review,
and may include any other matter specified by the Minister for the purposes
of the review.
(3) The results of the review must be incorporated into a report submitted
to the Minister.
(4) The Minister must cause a copy of the report to be laid before both
Houses of Parliament within 6 sitting days after receiving the
report.