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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
South Australian Employment Tribunal
Bill 2014
A BILL FOR
An Act to establish a tribunal with jurisdiction to review certain
decisions relating to rights or circumstances arising out of or in the course of
employment; 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 Employment
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
13Appointment of Deputy Presidents
14Deputy
President's functions generally
Subdivision 4—Magistrates
15Magistrates
Subdivision 5—Conciliation
officers
16Appointment of conciliation
officers
17Conciliation officer ceasing to hold office
and suspension
18Supplementary conciliation
officers
Division 4—Constitution of Tribunal
and its decision-making processes
19Constitution of
Tribunal
20Who presides at proceedings of
Tribunal
21Decision if 2 or more members constitute
Tribunal
22Determination of
questions of law
Division 5—Related
matters
23Streams
24Validity of acts of
Tribunal
25Disclosure of interest by members of
Tribunal
26Delegation
Part 3—Exercise of
jurisdiction
27General nature of
proceedings
28Decision-maker must
assist Tribunal
29Effect of review proceedings on decision being
reviewed
30Decision on
review
31Tribunal may invite decision-maker to
reconsider decision
Part 4—Principles,
powers and procedures
Division 1—Principles governing
hearings
32Principles governing hearings
Division 2—Evidentiary
powers
33Power to require person to give evidence or to
produce evidentiary material
34Entry and inspection of property
35Expert
reports
Division 3—Procedures
36Practice
and procedure generally
37Directions for conduct of
proceedings
38Consolidating and splitting
proceedings
39More appropriate forum
40Dismissing
proceedings on withdrawal or for want of prosecution
41Frivolous, vexatious
or improper proceedings
42Proceedings being conducted to cause
disadvantage
Division 4—Conferences, mediation and
settlement
43Conferences
44Mediation
45Settling
proceedings
Division 5—Parties
46Parties
47Person may be joined as
party
48Intervening
Division 6—Representation
49Representation
Division 7—Costs
50Costs
51Costs—related
matters
Division 8—Other procedural and
related provisions
52Sittings
53Hearings in public
54Preserving subject matter of
proceedings
55Security as to costs etc
56Interlocutory orders
57Conditional,
alternative and ancillary orders and directions
58Special
referees
59Relief from time limits
60Electronic hearings
and proceedings without hearings
61Completion of part-heard matters
62Other claims of
privilege
Division 1—Appeals
63Appeals
to Industrial Relations Court
Division 2—Related
matters
64Effect of appeal on
decision
65Reservation of questions of law
Division 1—Registrars
66Registrars
67Functions of
registrars
68Delegation
Division 2—Other
staff of Tribunal
69Other staff of Tribunal
Division 3—Use of services or
staff
70Use of services or staff
Part 7—Miscellaneous
71Immunities
72Protection from liability for
torts
73Protection for compliance with Act
74Alternative orders and relief
75Power to
cure irregularities
76Correcting mistakes
77Tribunal may review
its decision if person was absent
78Tribunal may authorise person to take
evidence
79Miscellaneous provisions relating to legal
process and service
80Proof of decisions and orders of
Tribunal
81Enforcement of decisions and orders of
Tribunal
82Accessibility of evidence
83Costs of
proceedings
84Annual report
85Additional
reports
86Disrupting proceedings of Tribunal
87Rules
88Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the South Australian Employment Tribunal
Act 2014.
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 the person who—
(a) brings a matter before the Tribunal; or
(b) requests, requires, or otherwise seeks that a matter be referred to,
or otherwise brought before, the Tribunal,
except to the extent that the regulations or the rules otherwise
provide;
conciliation officer means a person holding office as a
conciliation officer of the Tribunal;
decision, of the Tribunal, includes a direction,
determination or order of the Tribunal but, in prescribed circumstances, does
not include an interlocutory direction, determination or order;
decision-maker—see
section 27(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 includes any document, object or
substance of evidentiary value in proceedings before the Tribunal and includes
any other 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;
Industrial Relations Court means the Industrial Relations
Court of South Australia;
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;
President means the President of the Tribunal;
Presidential member means the President or a Deputy President
of the Tribunal;
registrar means the Registrar or a Deputy Registrar of the
Tribunal;
relevant Act means an Act which confers jurisdiction on the
Tribunal;
rules means the rules of the Tribunal in force under this
Act;
Tribunal means the South Australian Employment 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; and
(c) other persons who are designated as officers of the Tribunal under
this Act.
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 Employment Tribunal
Division 1—Establishment
of Tribunal
The South Australian Employment Tribunal is established.
(1) The Tribunal has
the jurisdiction conferred by statute.
(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.
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, to promote the best principles of
decision-making, 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 straightforward language and procedures (including, insofar as
is reasonably practicable and appropriate, by using simple and standardised
forms); 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
or a particular jurisdiction.
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 conciliation officers.
The Senior Judge of the Industrial Relations Court is the President of the
Tribunal.
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 Deputy President to act as President of the
Tribunal.
(2) Until an
appointment is made under
subsection (1) (or
unless such an appointment is made) the most senior Deputy President who is also
a Judge of the Industrial Relations Court will be taken to hold an appointment
to act as President of the Tribunal.
(3) A person appointed to act as 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.
Subdivision 3—The
Deputy Presidents
13—Appointment
of Deputy Presidents
(1) A Judge (other than the Senior Judge) of the Industrial Relations
Court is a Deputy President of the Tribunal.
(2) The Governor may,
on the nomination of the Minister, appoint a person who is eligible for
appointment as a Judge of the Industrial Relations Court to be a Deputy
President of the Tribunal.
(3) A person may be appointed under
subsection (2)
on a permanent or acting basis.
(4) A person appointed as a Deputy President of the Tribunal under
subsection (2)
ceases to hold that office if the person—
(a) dies; or
(b) reaches the age of 65 years; or
(c) in the case of a Deputy President appointed on an acting
basis—completes the term of appointment and is not reappointed;
or
(d) resigns by written notice given to the Minister; or
(e) is removed from office by the Governor for—
(i) misconduct; or
(ii) neglect of duty; or
(iii) incompetence; or
(iv) incapacity to carry out official duties satisfactorily.
(5) A Deputy President appointed under
subsection (2)
is entitled to remuneration allowances and expenses on a basis approved by the
Governor.
(6) This section does not derogate from the operation of the Judicial
Administration (Auxiliary Appointments and Powers)
Act 1988.
14—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) 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—Conciliation
officers
16—Appointment
of conciliation officers
(1) The Governor
may, on the recommendation of the Minister, appoint a person as a conciliation
officer.
(2) The Minister
may from time to time appoint a panel of persons who will, at the request of the
Minister—
(a) after
consultation with the President, recommend the selection criteria for
conciliation officers;
(b) assess a
candidate or candidates for appointment as a conciliation officer (and, as
appropriate, to provide advice to the Minister for the purposes of
subsection (1)).
(3) A person is eligible for appointment as a conciliation officer 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.
(4) In recommending persons for appointment as conciliation officers, the
Minister must have regard to—
(a) any criteria applying under
subsection (2)(a);
and
(b) any 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.
(5) The Minister must consult with the President of the Tribunal before
making a recommendation under
subsection (1).
(6) A conciliation
officer will be appointed for a term of office, not exceeding 5 years,
specified in the instrument of appointment.
(7) A person
appointed as a conciliation officer 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)).
(8) A conciliation
officer is appointed on conditions specified in the instrument of
appointment.
(9) A conciliation
officer 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).
(10) A conciliation officer—
(a) must advise the President of the Tribunal of the nature of any paid
employment or professional work undertaken outside his or her duties as a member
of the Tribunal; and
(b) must not engage in any such employment or work if the President
informs the member that, in the President's opinion, to do so would or may
conflict with the proper performance of the member's duties of office.
(11) The Minister must consult with the President about—
(a) the conditions of an appointment under
subsection (8);
and
(b) the basis of an appointment under
subsection (9).
17—Conciliation
officer ceasing to hold office and suspension
(1) The Governor
may, on the recommendation of the Minister, remove a conciliation officer from
office for—
(a) misconduct; or
(b) neglect of duty; or
(c) incompetence; or
(d) incapacity to carry out official duties satisfactorily.
(2) A person ceases to be a conciliation officer 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
conciliation officer from office if it appears that there may be grounds for the
removal of the member from the member's office.
(5) If a conciliation officer 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.
18—Supplementary
conciliation officers
(1) The Minister
may, at the request or with the agreement of the President of the Tribunal,
temporarily appoint a person to act as a supplementary conciliation officer in
relation to a particular matter or matters or for a specified period.
(2) The Minister may only appoint a person under this section if he or she
is eligible for appointment as a conciliation officer.
(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 conciliation officer 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
Minister 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 Minister after consultation with
the President of the Tribunal.
(7) The Governor
may at any time, on the recommendation of the Minister, cancel the appointment
of a person under this section.
(8) Before the Governor acts under
subsection (7),
the Minister must consult with the President of the Tribunal (unless the
Minister is acting at the request of the President).
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.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
20—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) conciliation officer.
21—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 22
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.
22—Determination
of questions of law
(1) The member of the Tribunal constituting the Tribunal or, if the
Tribunal is constituted by 2 or more members, the presiding member, may
refer a question of law to a Presidential member of the Tribunal.
(2) If a question
of law is referred under this section—
(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.
(3) If a Presidential member of the Tribunal decides a question of law
under
subsection (2),
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
or the classes of matters that may come before the Tribunal.
24—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.
25—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; or
(c) to the person (being either a member of the Tribunal or a member of
the staff of the Tribunal) 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 President to act in any
matter; and
(d) is revocable at will by the President.
Part 3—Exercise
of jurisdiction
27—General
nature of proceedings
(1) Subject to a relevant Act, a matter that comes before the Tribunal
will be dealt with as a review of the decision that constitutes the
matter.
(2) Where the review of
a decision is to be undertaken, the person or body that made or is taken to have
made the decision is the decision-maker for the purposes of these
provisions.
(3) Subject to
subsections (4),
(5) and
(6), the Tribunal
will examine the decision of the decision-maker by way of rehearing.
(4) On a rehearing,
the Tribunal must reach the correct or preferable decision but in doing so must
have regard to, and give appropriate weight to, the decision of the original
decision-maker.
(5) A procedure on
a rehearing will include—
(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.
(6) In exercising
its jurisdiction, the Tribunal is to deal with a matter in accordance with this
Act and the relevant Act.
(7) Furthermore, the relevant Act may modify the operation of this Act in
relation to a matter that comes within the Tribunal's jurisdiction.
28—Decision-maker
must assist Tribunal
(1) In proceedings
for the review of a decision, the decision-maker 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.
29—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 decision pending the determination of the matter, or until such time
(whether before or after the determination of the matter) as the Tribunal or the
decision-maker may specify, 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—
(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 interim order pending the reconsideration and determination of
the matter by the decision-maker, or 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).
31—Tribunal
may invite decision-maker to reconsider decision
(1) At any stage of proceedings for the review of a decision, the Tribunal
may invite the decision-maker to reconsider the decision.
(2) On being invited by the Tribunal to reconsider the 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 are 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.
(4) The Tribunal may specify a period within which the decision-maker
should act under this section (and if the decision-maker does not take action
within that period then the Tribunal may resume its proceedings under this Part
in such manner as it thinks fit).
Part 4—Principles,
powers and procedures
Division 1—Principles
governing hearings
32—Principles
governing hearings
(1) On the hearing
of any 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, may adopt, as in its discretion it considers
appropriate, any findings, decision or judgment of a court or other tribunal
(insofar as may be relevant to the proceedings before the Tribunal), and may
otherwise 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 this
Act affects any rule or principle of law relating to—
(a) legal professional privilege; or
(b) "without prejudice" privilege; or
(c) public interest immunity.
(3) This section does not limit the operation of
section 62.
33—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 without reasonable excuse to appear before the
Tribunal in response to a summons; or
(d) refuses or fails without reasonable excuse to give evidence before the
Tribunal or otherwise refuses or fails without reasonable excuse 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, wilfully insults the Tribunal or 1 or
more members or officers of the Tribunal in the exercise of official duties, or
wilfully interrupts the proceedings of the Tribunal,
is guilty of an offence.
Maximum penalty: $25 000 or imprisonment for 1 year.
(5) 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.
34—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) Any action taken 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.
36—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 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 to any 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); and
(f) may proceed to hear and determine proceedings in the absence of a
party.
(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.
37—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.
38—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.
40—Dismissing
proceedings on withdrawal or for want of prosecution
(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.
41—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
involves a trivial matter or amount; 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.
42—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) However, subject to a relevant Act, the Tribunal may dispense with a
conference in prescribed circumstances.
(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 (11),
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) If a question of law is referred to a Presidential member of the
Tribunal under
subsection (8)(a),
the Presidential member may refer the question to the Supreme Court for decision
by the Full Court of the Supreme Court.
(10) 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.
(11) 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.
(12) 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.
(13) 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.
(14) A registrar is expressly authorised to constitute the Tribunal for
the purposes of this section.
(15) The rules may set out circumstances where the outcome of any
proceedings under this section (including details of a settlement) are to be
available to members of the public.
(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.
(13) The rules may set out circumstances where the outcome of any
proceedings under this section (including details of a settlement) are to be
available to members of the public.
(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 or that the terms of the settlement are inappropriate.
(1) A person is a
party to proceedings before the Tribunal if the person is—
(a) the applicant; or
(b) in the case of proceedings involving the review of a
decision—the decision-maker; or
(c) without limiting a preceding paragraph, a respondent to an application
before the Tribunal, a person against whom a claim is made by proceedings
brought before the Tribunal, or a party to a dispute before the Tribunal;
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.
47—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) A person may not act as a representative in proceedings before the
Tribunal if—
(a) the person is a legal practitioner whose practising certificate has
been suspended; or
(b) the person's name has been struck off the roll of legal practitioners;
or
(c) the person would be acting in any other manner that is inconsistent
with disciplinary proceedings that have been taken under the Legal
Practitioners Act 1981.
(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 for 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 or loss
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.
54—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.
57—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.
60—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 had been
heard before the Tribunal with the attendance in person of all persons involved
in the proceedings.
61—Completion
of part-heard matters
A person who ceases to hold office as a member of the Tribunal (other than
on account of having his or her appointment revoked or being removed from
office) 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.
(1) 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.
63—Appeals
to Industrial Relations Court
(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 Industrial Relations Court; or
(b) in any other case—to the Industrial Relations Court constituted
of a single Judge.
(2) An appeal under this section is only by leave of the Industrial
Relations 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 Industrial Relations 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 (even if the time for instituting the appeal has expired).
(4) An appeal under this section will be by way of rehearing.
(5) The Industrial Relations Court may, in conducting an appeal, draw
inferences of fact from evidence or material before the Tribunal and may, as it
thinks fit, allow further evidence or material to be presented to it.
(6) The Industrial Relations 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, if it thinks fit, return
the matter to the Tribunal for reconsideration in accordance with any directions
that the Court considers appropriate.
(7) The Industrial Relations Court may, on an appeal, make any interim,
ancillary or consequential order that the Court considers appropriate.
(8) The regulations may prescribe scales of costs that are payable in
respect of proceedings before the Industrial Relations Court on an appeal under
this section (and if a regulation is made under this section then the costs so
prescribed will apply in substitution for any costs under the Fair
Work Act 1994).
64—Effect
of appeal on decision
(1) The commencement of proceedings under this Part does not affect the
operation of a decision to which the proceedings relate or prevent the taking of
action to implement such a decision.
(2) However, the
Tribunal or the relevant court may make an order staying the operation of a
relevant decision (including a decision of a relevant decision-maker) until the
proceedings are finally decided (on such conditions as may be specified in the
order).
(3) The Tribunal or a 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.
65—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.
(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 or under any
other Act.
(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 selected by the Registrar with the concurrence of the
Chief Executive of the Department.
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; or
(d) another tribunal or court.
(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 or produces
books, papers or documents to 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.
72—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 or an
officer 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.
73—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.
74—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.
75—Power
to cure irregularities
(1) Where in proceedings before the Tribunal or a court on appeal 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 be conducive 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 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, a 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.
77—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 is part of the original
proceedings.
78—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.
79—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).
80—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.
81—Enforcement
of decisions and orders of Tribunal
(1) If the Tribunal makes a monetary order, the amount specified in the
order may be recovered in the appropriate court, by a person recognised by the
regulations for the purposes of this subsection, as if it were a debt.
(2) 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: $50 000 or imprisonment for 2 years.
(3) 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 may, 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 (1)
or
(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) 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 Minister on the administration and operation of the
Tribunal during the previous financial year.
(2) The Minister 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.
(3) The report must include any information prescribed by the
regulations.
The President of the Tribunal must, at the request of the Minister, report
to the Minister on any matter relevant to the administration or operation of the
Tribunal.
86—Disrupting
proceedings of Tribunal
(1) A person who is present at a place where proceedings of the Tribunal
are being conducted must not—
(a) wilfully interrupt any proceedings; or
(b) behave in a disorderly or offensive manner; or
(c) use offensive language.
Maximum penalty: $10 000 or imprisonment for 6 months.
(2) Nothing in this section derogates from the operation of another
provision of this Act.
(3) In this section—
offensive includes threatening, abusive or
insulting.
(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; and
(e) make provisions of
a saving or transitional nature consequent on the vesting of jurisdiction on the
Tribunal under another Act.
(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.
(4) A regulation under
subsection (2)(e)
may (without limiting that subsection)—
(a) operate in addition to any saving or transitional provision enacted
under another Act in connection with the vesting of jurisdiction in the
Tribunal; and
(b) operate so as to modify the operation or effect of another Act insofar
as may be expedient in connection with the transfer of jurisdiction to the
Tribunal from another entity; and
(c) take effect from the day on which jurisdiction is vested in the
Tribunal under another Act (including so as to provide for the retrospective
operation of the regulations).