Tasmanian Civil and Administrative Tribunal Act 2020
An Act to establish the Tasmanian Civil and Administrative Tribunal, to enable the appointment of members and staff of the Tribunal, to make provision for the functions, powers and procedures of the Tribunal, to provide for certain transitional matters related to the establishment of the Tribunal, and for related purposes
[The long title Amended by No. 17 of 2021, s. 4, Applied:05 Nov 2021][Royal Assent 4 November 2020]
Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Tasmanian Civil and Administrative Tribunal Act 2020 .
This Act commences on the day on which this Act receives the Royal Assent.
(1) In this Act, unless the contrary intention appears –Acting Deputy President means an Acting Deputy President appointed under section 35(1) ;Acting President means the Acting President appointed under section 21(1) ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Anti-Discrimination stream means the Anti-Discrimination stream established by clause 1 of Part 4 of Schedule 2 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] applicant means –[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021]but, unless and to the extent that the Tribunal rules otherwise provide, 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;(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 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 –[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] code of conduct means the code of conduct issued under section 94 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] commencement day means the day on which the Tasmanian Civil and Administrative Tribunal Amendment Act 2021 commences;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] compulsory conference means a compulsory conference held under Division 7 of Part 8 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] decision of the Tribunal includes a direction, determination or order of the Tribunal;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] decision-maker – see section 74(2) ;Deputy President means a Deputy President of the Tribunal appointed under section 26(2) ;Deputy Registrar means a Deputy Registrar of the Tribunal appointed under section 53(3) ;Division Head means –(a) a person appointed under section 60(3) to be the Division Head in relation to a Division of the Tribunal; and(b) a person acting as a Division Head under section 60(7) ;Division of the Tribunal means a Division of the Tribunal that is established by section 59(1) ;Division Schedule, in relation to a Division of the Tribunal, means the Schedule to this Act that is entitled with the name of the Division of the Tribunal;establishment day has the meaning it has in section 4(1) ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] evidentiary material includes any document, object, and substance, of evidentiary value in proceedings before the Tribunal and includes any other document, object, and 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;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Forestry Practices stream means the Forestry Practices stream established by clause 1 of Part 6 of Schedule 2 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] General Division means the General Division established by section 59(1) ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Guardianship stream means the Guardianship stream established by clause 2 of Part 4 of Schedule 3 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Health Practitioners stream means the Health Practitioners stream established by clause 1 of Part 5 of Schedule 2 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] legally qualified member means –(a) the President; and(b) a magistrate who is a member; and(c) a member who is an Australian lawyer of at least 5 years’ standing as an Australian legal practitioner;Magistrates Court means the Magistrates Court of Tasmania;member means a member of the Tribunal under section 11 ;members of the staff of the Tribunal means –(a) the registrars; and(b) the other persons whose services are made available to the Tribunal under section 56 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Mental Health stream means the Mental Health stream established by clause 1 of Part 5 of Schedule 3 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] 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;officers of the Tribunal means –(a) the registrars; and(b) the members of the staff of the Tribunal, or other persons, who are, under section 57 , designated to be officers of the Tribunal by the Registrar;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] order of the Tribunal includes an interim order, interlocutory order, consequential order and ancillary order;ordinary member means –(a) an ordinary member of the Tribunal appointed under section 44(1)(b) ; and(b) except in Subdivision 2 of Division 4 of Part 3 , a supplementary ordinary member of the Tribunal appointed under section 48(1) ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] original jurisdiction of the Tribunal – see section 72 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] party, in relation to proceedings, means a person who is, under this Act or a relevant Act, a party to the proceedings;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Personal Compensation stream means the Personal Compensation stream established by clause 1 of Part 7 of Schedule 2 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] practice directions means practice directions given under section 93 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] prescribed means prescribed in the regulations;President means the President of the Tribunal appointed under section 12(2) ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] proceedings means proceedings of the Tribunal and includes a hearing of the Tribunal and proceedings of the Tribunal that do not consist of a hearing;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Protective Division means the Protective Division established by section 59(1) ;registrar means the Registrar or a Deputy Registrar;Registrar means the Registrar of the Tribunal appointed under section 53(1) ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] registry means a registry of the Tribunal;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] regulations means regulations made under this Act;relevant Act means an Act specified in Schedule 1 and any other Act that confers jurisdiction on the Tribunal;relevant Board or Tribunal means –(a) the Anti-Discrimination Tribunal established under the Anti-Discrimination Act 1998 ; and(b) the Asbestos Compensation Tribunal established under the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 ; and(c) the Forest Practices Tribunal established under the Forest Practices Act 1985 ; and(d) the Guardianship and Administration Board established under the Guardianship and Administration Act 1995 ; and(e) the Health Practitioners Tribunal established under the Health Practitioners Tribunal Act 2010 ; and(f) the Mental Health Tribunal established under the Mental Health Act 2013 ; and(g) the Motor Accidents Compensation Tribunal established under the Motor Accidents (Liabilities and Compensation) Act 1973 ; and(h) the Resource Management and Planning Appeal Tribunal established under the Resource Management and Planning Appeal Tribunal Act 1993 ; and(i) the Workers Rehabilitation and Compensation Tribunal established under the Workers Rehabilitation and Compensation Act 1988 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Resource and Planning stream means the Resource and Planning stream established by clause 2 of Part 8 of Schedule 2 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] reviewable decision – see section 74(1) ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Rules Committee means the Rules Committee established under section 91 ;senior member means –(a) a senior member of the Tribunal appointed under section 44(1)(a) ; and(b) except in Subdivision 2 of Division 4 of Part 3 , a supplementary senior member of the Tribunal appointed under section 48(1) ;sessional basis, in relation to an appointment of a member, means the appointment of the member on the basis that the person is to act in the office during the periods, within the person’s term of appointment, determined from time to time by the President;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] stream – see section 63 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Tribunal means the Tasmanian Civil and Administrative Tribunal established by section 8 ;[Section 3 Subsection (1) amended by No. 17 of 2021, s. 5, Applied:05 Nov 2021] Tribunal rules means the Tribunal rules, made under section 92 , that are in force under this Act.(2) A reference in this Act (however expressed) to the performance and exercise by the Tribunal of its functions and powers in relation to other legislation includes a reference both to the Tribunal’s functions and powers under the legislation and to its functions and powers under this Act in relation to the legislation.(3) [Section 3 Subsection (3) inserted by No. 17 of 2021, s. 5, Applied:05 Nov 2021] For the purposes of this Act, a reference in a relevant Act to an appeal to the Tribunal is to be taken to be a reference, as the case requires, to –(a) an application for a review by the Tribunal; or(b) a review by the Tribunal.
4. Meaning of establishment day
(1) For the purposes of this Act, the establishment day is –(a) 1 July 2021; or(b) if another day is fixed as the establishment day by a proclamation made under subsection (2) , that day.(2) The Governor, by proclamation, may, before 1 July 2021, fix a day that is later than 1 July 2021 as the establishment day for the purposes of this Act.
5. Reductions in remuneration and allowances
A reference in Part 3 to a reduction in remuneration or allowances in relation to a person does not include a reference to such a reduction that is related to a reduction, over a particular period, in the number of hours of service of a person under this Act –(a) who is appointed on a sessional basis; or(b) if the basis on which the person is appointed is altered under a provision of this Act so that the person becomes appointed on a part-time basis or a sessional basis.
6. When person appointed for particular proceeding completes term of office
For the purposes of this Act, a person who is appointed to an office in relation to a particular proceeding or proceedings in the Tribunal completes the term of office if –(a) the proceedings have been withdrawn or dismissed; or(b) the proceedings have been finally determined by the Tribunal, including, where required, by the giving of reasons for the determination and the determination of costs.
This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.
7A. Inconsistency with relevant Act
[Section 7A Inserted by No. 17 of 2021, s. 6, Applied:05 Nov 2021] If there is an inconsistency between a provision of a relevant Act and a provision of this Act, the regulations or the Tribunal rules, the provision of the relevant Act prevails to the extent of the inconsistency.
PART 2 - Tasmanian Civil and Administrative Tribunal
The Tasmanian Civil and Administrative Tribunal is established on the establishment day.
9. 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 are to be at the places determined by the President after consultation with the Minister.
10. Main objectives of Tribunal
(1) 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 public administration, 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 performance and 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 greater needs for assistance than others; and(c) [Section 10 Subsection (1) amended by No. 17 of 2021, s. 7, Applied:05 Nov 2021] to ensure that applications, referrals, reviews and appeals 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 alternative dispute resolution processes, or compulsory conferences, 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 the manner that 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.(2) In furtherance of the Tribunal’s main objectives, the Tribunal should, in relation to the conferral and exercise of the Tribunal’s jurisdiction, consult from time to time with the agencies, organisations or bodies that it thinks appropriate.
PART 3 - Membership and Staff of Tribunal
Division 1 - Membership
The members of the Tribunal are –(a) the President; and(b) each Deputy President; and(c) the senior members; and(d) the ordinary members.
Division 2 - President of Tribunal
Subdivision 1 - President
(1) There is to be a President of the Tribunal.(2) The Governor is to appoint as the President of the Tribunal a person who is a magistrate or eligible for appointment as a magistrate.(3) The first term of appointment, of the first person appointed under subsection (2) as the President, is 7 years.(4) The Governor may extend for a period of 3 years the first term of appointment of the first person appointed as the President.(5) The term of appointment, of a person appointed under subsection (2) as the President (other than the first term of appointment of the first person so appointed), is 5 years.(6) A person (including the first person so appointed) may be appointed under subsection (2) as the President as many times as may be and the term of any such appointment may be, but is not required to be, consecutive with a previous term of appointment as the President.(7) An appointment under subsection (2) must be in writing.(8) Before a person who is a magistrate is appointed to be the President or the term of appointment as the President of a person who is a magistrate is extended, the Minister must consult with the Chief Magistrate.
13. Terms and conditions, &c., of appointment as President
(1) A person appointed as the President holds office on the terms and conditions, not inconsistent with this Act, from time to time determined by the Governor.(2) A person appointed as the President is –(a) if the President is not a magistrate, entitled to be paid the remuneration and allowances that a magistrate is entitled to be paid under the Magistrates Court Act 1987 , together with an amount equivalent to the additional component, if any, determined under subsection (3) ; or(b) if the President is a magistrate, entitled to be paid, in addition to his or her salary and allowances as a magistrate, an additional component, if any, determined under subsection (3) .(3) The Governor may determine that the President’s salary or allowances as a magistrate are to have an additional component because the magistrate holds office as the President.(4) An amount to which a person appointed as President is entitled under subsection (2) cannot be reduced during the person’s term of office.
14. President’s functions generally
(1) The President 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 performs its functions and exercises its powers; 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) [Section 14 Subsection (3) amended by No. 17 of 2021, s. 8, Applied:05 Nov 2021] Without limiting subsections (1) and (2) , the President, or the Acting President, has, if appointed before the establishment day, the following functions before the commencement day:(a) assigning functions and powers to any Registrar, Deputy Registrar or other member of staff appointed before the establishment day;(b) performing functions that are necessary or convenient to facilitate the establishment of the Tribunal.(4) The President has the power to do all things necessary or convenient to be done in connection with, or incidental to, the performance of the President’s functions.(5) In the performance and exercise of the President’s functions and powers, the President is not subject to direction or control by the Minister.
[Section 14A Inserted by No. 17 of 2021, s. 9, Applied:05 Nov 2021](1) The President may delegate a function or power of the President under this or any other Act, other than this power of delegation, to –(a) another member of the Tribunal; or(b) a member of the staff of the Tribunal; or(c) 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.
15. When person ceases to be President
A person ceases to be the President if –(a) the person ceases to be a magistrate and he or she was a magistrate when he or she was appointed, or reappointed, as the President; or(b) the person resigns as the President by written notice to the Minister; or(c) the person completes a term of office as the President and is not appointed as the President for a term beginning immediately after the end of the term of office that is completed; or(d) the appointment of the person as the President is revoked under section 19(4) ; or(e) the person dies.
16. Suspension of appointment as President
(1) The Governor may suspend from office a person holding office as the President if the Governor is satisfied that the person –(a) except by reason of temporary illness, is, by reason of disability or infirmity, incapable of performing the functions of the President; or(b) has become bankrupt, applied to take, or has taken, advantage of any law relating to bankruptcy or insolvent debtors, compounded with his or her creditors, or made an assignment of his or her remuneration or estate for their benefit; or(c) has been convicted in Tasmania of –or has been convicted of a crime, or of an offence, which would, if committed in Tasmania, be a crime, or be an offence punishable by imprisonment for a term of 12 months or more.(i) a crime; or(ii) an offence that is punishable by imprisonment for a term of 12 months or more –(2) The Governor may suspend the President from office if the Governor is satisfied that the person has been charged with –(a) a crime; or(b) an offence that is punishable by imprisonment for a term of 12 months or more; or(c) a crime, or an offence, which would, if committed in Tasmania, be a crime, or be an offence punishable by imprisonment for a term of 12 months or more.(3) The Governor may suspend the President from office if the Governor is satisfied that the person has engaged in –(a) misconduct as a member of the Tribunal; or(b) misbehaviour that brings the office into disrepute.(4) If the President was a magistrate when appointed as the President, the Minister must consult with the Chief Magistrate before the President is suspended under this section.(5) If a person has been suspended from office under subsection (1) , (2) or (3) , the Minister must cause a statement setting out the grounds for the suspension to be laid before each House of Parliament during the first 7 sitting-days of that House following the suspension or a longer period allowed by resolution of the House of Parliament before which it is laid.
17. Parliament may confirm or revoke suspension of President for misconduct or misbehaviour
(1) If a person has been suspended from office under section 16(3) , a House of Parliament, within 30 sitting-days after the day on which a statement has been laid before the House under section 16(5) or a longer period allowed by resolution of the House of Parliament, may pass a resolution –(a) confirming the suspension; or(b) revoking the suspension.(2) If both Houses of Parliament pass a resolution under subsection (1)(b) revoking the suspension of a person from the office of President, the suspension of the person from the office of President is revoked on and from the day on which the resolution is passed by both the Houses.
18. Governor may revoke or vary suspension of President
(1) The Governor may revoke or vary a suspension imposed under section 16(1) , (2) or (3) .(2) If the President was a magistrate when appointed or re-appointed as the President, the Minister must consult with the Chief Magistrate before the suspension of the President is revoked or varied under subsection (1) .(3) If the Governor has, under subsection (1) , revoked or varied a suspension, the Minister must cause a statement setting out the grounds for the revocation or variation to be laid before each House of Parliament within 7 sitting-days of that House following the revocation or variation or a longer period allowed by resolution of the House of Parliament before which it is laid.(4) If a suspension has been revoked or varied under subsection (1) , a House of Parliament, within 30 sitting-days after the statement in relation to the revocation or variation is laid before the House under subsection (3) or a longer period allowed by resolution of the House of Parliament before which it is laid, may pass a resolution –(a) confirming the revocation or variation of the suspension; or(b) revoking the revocation or variation of the suspension.(5) If both Houses of Parliament pass a resolution under subsection (4) confirming the revocation or variation of the suspension, the suspension is varied or revoked, respectively, on and from the day on which the resolution is passed by both Houses.
19. Revocation of appointment as President
(1) The Governor may cause to be laid before both Houses of Parliament a statement requesting the Houses of Parliament to revoke the appointment of a person as the President on the grounds for suspension, referred to in section 16(1) or (3) , that are specified in the statement, if –(a) the Governor is satisfied that the person may be suspended from the office of President on the grounds, referred to in section 16(1) or (3) , that are specified in the statement; and(b) the Governor has suspended the person from office under section 16 on any grounds specified in the statement, whether or not they are the same grounds as the grounds to which the statement relates; and(c) the statement required by section 16(5) to be laid before both Houses of Parliament in relation to the suspension of the person from the office of President has been laid before each House; and(d) where the person has been suspended from office under section 16(3) , the suspension has been confirmed under section 17(1)(a) .(2) If the President was a magistrate when appointed as the President, the Minister must consult with the Chief Magistrate before a statement is laid before a House of Parliament under subsection (1) .(3) A House of Parliament, after 10 sitting-days, or a longer period allowed by resolution of the House, after the day on which a statement in relation to a person has been laid before the House under subsection (1) , may resolve –(a) to refuse the request specified in the statement and, if the suspension of the person from office has not been revoked, to revoke the suspension; or(b) to revoke the appointment of the person as President.(4) If both Houses have resolved –on and from the day on which the resolution is passed by both Houses.(a) under subsection (3)(a) to revoke the suspension of a person from the office of President, the suspension of the person from the office of President is revoked; or(b) under subsection (3)(b) to revoke the appointment of a person as President, the appointment of the person as President is revoked –
20. Payment of person suspended from office of President
(1) If a person is suspended from the office of President under section 16 , the Governor is to specify in the instrument of suspension the proportion (which may be all, none or part) of the salary of the President to which the person is to be entitled in respect of the period of suspension.(2) If a person is suspended from the office of President under section 16 , the person is not entitled, in respect of the period of the suspension, to any more of the salary of the President to which, but for the suspension, or any variation of the suspension, the person would be entitled under this Act, than the proportion of that salary that is specified in the instrument of suspension as so varied, if at all.(3) Despite subsection (2) , if the suspension of a person from the office of President for a period under section 16 is revoked under section 17(2) , section 18(1) or section 19(3)(a) , the person is entitled to the amount of the salary in respect of the period to which, but for the suspension of the person from the office, the person would be entitled under this Part.(4) The reference in this section to salary does not include any salary that the person receives as a magistrate.
Subdivision 2 - Acting President
(1) The Governor may appoint a person as the Acting President for a term, of not more than 6 months, specified in the instrument of appointment, if –(a) there is a vacancy in the office of President; or(b) the President is absent from duty; or(c) the President is, for any other reason, unable to perform or exercise the functions or powers of the President.(2) The Governor may only appoint a person as the Acting President under subsection (1) if the person is a Deputy President or a magistrate.(3) A person appointed as the Acting President is, for the term of his or her appointment as the Acting President, entitled to be paid additional remuneration and allowances to ensure that his or her remuneration and allowances equal the remuneration and allowances payable to the President in whose stead he or she is acting.(4) The Governor may extend for a period of 3 months the term of an appointment under this section.(5) An appointment under subsection (1) , and an extension of a term of appointment under subsection (4) , must be in writing.(6) A person may be appointed under subsection (1) to be the Acting President as many times as the Governor thinks fit.(7) A person appointed as the Acting President –(a) has all the functions and powers of the President; and(b) is taken to be the President of the Tribunal for the purposes of this Act (other than the provisions of Subdivision 1 of Division 2 , apart from section 14 ) and any relevant Act.(8) The Minister must consult with the Chief Magistrate before a person who is a magistrate is appointed as the Acting President.
22. When person ceases to be Acting President
A person ceases to be the Acting President if –(a) the person ceases to be a Deputy President or a magistrate; or(b) the person resigns as the Acting President by written notice to the Minister; or(c) the person completes a term of office as the Acting President (which may be a term that is extended under section 21(4) ) and is not appointed as the Acting President for a term beginning immediately after the end of the term of office that is completed; or(d) the appointment of the person as the Acting President is revoked under section 23(1) ; or(e) the person dies.
23. Revocation of appointment as Acting President
(1) The Governor may at any time revoke an appointment under section 21(1) .(2) A revocation under subsection (1) must be in writing.(3) The Minister must consult with the Chief Magistrate before the appointment of an Acting President who is a magistrate is revoked under subsection (1) .
Subdivision 3 - Miscellaneous
24. Appointment of magistrate as President or Acting President not to affect tenure, &c.
(1) The appointment of a person, who is a magistrate, as the President under section 12(2) or as the Acting President under section 21 , does not affect –(a) the person’s tenure of office or status as a magistrate; or(b) subject to section 13 , the payment of the person’s salary or allowances as a magistrate; or(c) despite any other Act, including the Magistrates Court Act 1987 , the ability of the person to do anything in the person’s capacity as a magistrate, including constituting the Magistrates Court or exercising the jurisdiction of the Magistrates Court; or(d) any other right or privilege that the person has as a magistrate.(2) Service in the office of the President, or service as the Acting President, is taken, for all purposes, in relation to a person who is a magistrate and who was, when a magistrate, appointed to serve in the office of the President or Acting President, to constitute service as a magistrate.
25. Relationship of Act to Magistrates Court, &c.
(1) Despite the Magistrates Court Act 1987 or any other Act, the Chief Magistrate –(a) may not assign to a Division of the Magistrates Court a magistrate who is the President or the Acting President; and(b) may not arrange the business of the Tribunal; and(c) may not issue practice directions in relation to the Tribunal; and(d) may not direct, or impose a requirement on, a member of the Tribunal or a member of the staff of the Tribunal; and(e) may not require a magistrate who is the President, or who is serving as the Acting President, to perform the functions, or exercise the powers, of a magistrate, and may not delegate to such a person any functions or powers of a magistrate; and(f) may not otherwise perform or exercise, in relation to a magistrate who is the President, or who is serving as the Acting President, a function or power under an Act if the performance or exercise may interfere with the President’s, or Acting President’s, ability to appropriately perform or exercise a function or power under this Act or a function or power of the Tribunal under another Act.(2) Nothing in this section prevents a magistrate who is the President, or who is serving as the Acting President, from attending any training or professional development provided to magistrates generally, or from engaging, with the magistrate’s agreement, in other activities engaged in by magistrates generally.(3) Despite the Magistrates Court Act 1987 , the President is not a member of the Magistrates Rule Committee under that Act.
Division 3 - Deputy Presidents of Tribunal
Subdivision 1 - Deputy Presidents
26. Appointment of Deputy Presidents
(1) There is to be at least one Deputy President of the Tribunal.(2) The Governor may appoint a person as a Deputy President of the Tribunal.(3) The Governor may only appoint a person under subsection (2) as a Deputy President if the person is an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner.(4) The appointment of a person under subsection (2) must be in writing.(5) The appointment of a person as a Deputy President under subsection (2) –(a) is to be specified in the instrument of appointment to be –(i) an appointment for a term of 5 years; or(ii) an appointment in relation to a particular proceeding or particular proceedings; and(b) is to be specified in the instrument of appointment to be –(i) on a full-time basis; or(ii) on a part-time basis; or(iii) on a sessional basis.(6) A person may be appointed as a Deputy President as many times as may be and the term of any such appointment may be, but is not required to be, consecutive with a previous term of appointment as a Deputy President.(7) The Minister, by notice in writing to a person who is a Deputy President, may, at the request of the President and the person, alter the basis, referred to in subsection (5)(b) , on which the Deputy President is appointed so that the person becomes appointed on a full-time basis, a part-time basis or a sessional basis.
27. Terms and conditions of appointment as Deputy President
(1) A person appointed as a Deputy President holds office on the terms and conditions, not inconsistent with this Act, from time to time determined by the Governor.(2) A person appointed as a Deputy President is entitled to be paid the remuneration and allowances that the Governor determines from time to time to be payable to that Deputy President.(3) Any remuneration and allowances that are, during a person’s term of office as Deputy President, determined under subsection (2) to be payable to the person as Deputy President, cannot, subject to section 5 , be reduced during the person’s term of office.
28. Deputy President’s functions generally
(1) A Deputy President has the functions conferred on a 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 to manage the business of the Tribunal; and(c) assisting the President to manage 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 has the power to do all things necessary or convenient to be done in connection with, or incidental to, the performance of a Deputy President’s functions.(4) A Deputy President is subject to the direction of the President in performing or exercising the functions or powers of a Deputy President, other than in adjudicating in the Tribunal.
29. When person ceases to be Deputy President
A person ceases to be a Deputy President if –(a) the person ceases to be an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or(b) the person resigns as a Deputy President by written notice to the Minister; or(c) the person completes a term of office as a Deputy President and is not appointed again to the office for a term beginning immediately after the end of the term of office that is completed; or(d) the appointment of the person as a Deputy President is revoked under section 33(3) ; or(e) the person dies.
30. Suspension of appointment as Deputy President
(1) The Governor may suspend from office a person holding office as a Deputy President if the Governor is satisfied that the person –(a) except by reason of temporary illness, is, by reason of disability or infirmity, incapable of performing the functions of a Deputy President; or(b) has become bankrupt, applied to take, or has taken, advantage of any law relating to bankruptcy or insolvent debtors, compounded with his or her creditors, or made an assignment of his or her remuneration or estate for their benefit; or(c) has been convicted in Tasmania of –or has been convicted of a crime, or of an offence, which would, if committed in Tasmania, be a crime, or be an offence punishable by imprisonment for a term of 12 months or more.(i) a crime; or(ii) an offence that is punishable by imprisonment for a term of 12 months or more –(2) The Governor may suspend a Deputy President from office if the Governor is satisfied that the person has been charged with –(a) a crime; or(b) an offence that is punishable by imprisonment for a term of 12 months or more; or(c) a crime, or an offence, which would, if committed in Tasmania, be a crime, or be an offence punishable by imprisonment for a term of 12 months or more.(3) The Governor may suspend a Deputy President from office if the Governor is satisfied that the person has –(a) engaged in misconduct as a member of the Tribunal; or(b) engaged in misbehaviour that brings the office into disrepute; or(c) breached the code of conduct and the President has recommended the revocation of the appointment.(4) The Minister must consult with the President before a Deputy President is suspended under this section.(5) If a person has been suspended from office under subsection (1) , (2) or (3) , the Minister must cause a statement setting out the grounds for the suspension to be laid before each House of Parliament during the first 7 sitting-days of that House following the suspension or a longer period allowed by resolution of the House of Parliament before which it is laid.
31. Parliament may confirm or revoke suspension of Deputy President for misconduct or misbehaviour
(1) If a person has been suspended from office under section 30(3) , a House of Parliament, within 30 sitting-days after the day on which a statement has been laid before the House under section 30(5) or a longer period allowed by resolution of the House of Parliament, may pass a resolution –(a) confirming the suspension; or(b) revoking the suspension.(2) If both Houses of Parliament pass a resolution under subsection (1)(b) revoking the suspension of a person from the office of Deputy President, the suspension of the person from the office of Deputy President is revoked on and from the day on which the resolution is passed by both the Houses.
32. Governor may revoke or vary suspension of person from office of Deputy President
(1) The Governor may revoke or vary a suspension imposed under section 30(1) , (2) or (3) .(2) If the Deputy President who has been suspended was a magistrate when appointed as a Deputy President, the Minister must consult with the Chief Magistrate before the suspension of the Deputy President is revoked or varied under subsection (1) .(3) If the Governor has, under subsection (1) , revoked or varied a suspension, the Minister must cause a statement setting out the grounds for the revocation or variation to be laid before each House of Parliament within 7 sitting-days of that House following the revocation or variation or a longer period allowed by resolution of the House of Parliament before which it is laid.(4) If a suspension has been revoked or varied under subsection (1) , a House of Parliament, within 30 sitting-days after the statement in relation to the revocation or variation is laid before the House under subsection (3) or a longer period allowed by resolution of the House of Parliament before which it is laid, may pass a resolution –(a) confirming the revocation or variation of the suspension; or(b) revoking the revocation or variation of the suspension.(5) If both Houses of Parliament pass a resolution under subsection (4)(a) confirming the revocation or variation of the suspension, the suspension is varied or revoked, respectively, on and from the day on which the resolution is passed by both Houses.
33. Revocation of appointment as Deputy President
(1) The Governor may cause to be laid before both Houses of Parliament a statement requesting the Houses of Parliament to revoke the appointment of a person as a Deputy President on the grounds for suspension, referred to in section 30(1) or (3) , that are specified in the statement, if –(a) the Governor is satisfied that the person may be suspended from the office of Deputy President on the grounds, referred to in section 30(1) or (3) , that are specified in the statement; and(b) the Governor has suspended the person from office under section 30 on any grounds specified in the statement, whether or not they are the same grounds as the grounds to which the statement relates; and(c) the statement required by section 30(5) to be laid before both Houses of Parliament in relation to the suspension of the person from the office of Deputy President has been laid before each House; and(d) where the person has been suspended from office under section 30(3) , the suspension has been confirmed under section 31(1)(a) .(2) A House of Parliament, after 10 sitting-days, or a longer period allowed by resolution of the House, after the day on which a statement in relation to a person has been laid before the House under subsection (1) , may resolve –(a) to refuse the request specified in the statement and, if the suspension of the person from office has not been revoked, to revoke the suspension; or(b) to revoke the appointment of the person as a Deputy President.(3) If both Houses have resolved –on and from the day on which the resolution is passed by both Houses.(a) under subsection (2)(a) to revoke the suspension of a person from the office of Deputy President, the suspension of the person from the office of Deputy President is revoked; or(b) under subsection (2)(b) to revoke the appointment of a person as a Deputy President, the appointment of the person as a Deputy President is revoked –
34. Payment of person suspended from office of Deputy President
(1) If a person is suspended from the office of Deputy President under section 30 , the Governor is to specify in the instrument of suspension the proportion (which may be all, none or part) of the salary of a Deputy President to which the person is to be entitled in respect of the period of suspension.(2) If a person is suspended from the office of Deputy President under section 30 , the person is not entitled, in respect of the period of the suspension, to any more of the salary of the Deputy President to which, but for the suspension, or any variation of the suspension, the person would be entitled under this Act, than the proportion of that salary that is specified in the instrument of suspension as so varied, if at all.(3) Despite subsection (2) , if the suspension of a person from the office of Deputy President for a period under section 30 is revoked under section 31(2) , section 32(1) or section 33(2)(a) , the person is entitled to the amount of the salary in respect of the period to which, but for the suspension of the person from the office, the person would be entitled under this Part.
Subdivision 2 - Acting Deputy Presidents
(1) The Minister may appoint a person as an Acting Deputy President if –(a) there is a vacancy in an office of Deputy President; or(b) a Deputy President is absent or for any other reason is unable to perform the duties of office.(2) The Minister may only appoint a person as an Acting Deputy President if the person is an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner.(3) An appointment under this section must be in writing.(4) The appointment of a person as an Acting Deputy President is to be –(a) for a term, of not more than 6 months, specified in the instrument of appointment; and(b) specified in the instrument of appointment to be –(i) on a full-time basis; or(ii) on a part-time basis; or(iii) on a sessional basis.(5) The Minister must consult with the President before making an appointment under subsection (1) .(6) A person appointed as an Acting Deputy President –(a) has all the functions and powers of a Deputy President; and(b) is taken to be a Deputy President for the purposes of this Act (other than the provisions of Subdivision 1 of Division 2 , apart from section 14 ) and any relevant Act.(7) The Minister, by notice in writing to a person who is appointed as an Acting Deputy President, may, at the request of the President and the person, alter the basis, referred to in subsection (4)(b) , on which the person is appointed so that the person becomes appointed on a full-time basis, a part-time basis or a sessional basis.
36. Terms and conditions of appointment as Acting Deputy President
(1) A person appointed as an Acting Deputy President is, for the term of the appointment, entitled to be paid the salary and allowances determined by the Minister after consultation with the President.(2) Any remuneration and allowances that are, before or during a person’s term of office as an Acting Deputy President, determined under subsection (1) to be payable to the person as Acting Deputy President, cannot, subject to section 5 , be reduced during the person’s term of office as an Acting Deputy President.(3) A person appointed as an Acting Deputy President may be appointed under section 35 as an Acting Deputy President for a further term that is continuous on one or more of the person’s previous appointments as an Acting Deputy President –(a) by the Minister, if the total period of continuous appointments is not more than 6 months; or(b) by the Governor, if the total period of continuous appointments is more than 6 months.(4) Nothing in subsection (3) is to be taken to prevent a person being appointed under section 35 , as many times as may be, for a period, if the period is not within 2 months of the end of one or more of the person’s previous appointments as an Acting Deputy President.
37. When person ceases to be Acting Deputy President
A person appointed under section 35(1) as an Acting Deputy President ceases to be an Acting Deputy President if –(a) the person ceases to be an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or(b) the person resigns his or her office as Acting Deputy President by written notice to the Minister; or(c) the person completes a term of office as an Acting Deputy President and is not appointed again to the office for a term beginning immediately after the end of the term of office that is completed; or(d) the appointment is revoked under section 38(1) ; or(e) the person dies.
38. Revocation of appointment as Acting Deputy President
(1) The Governor may at any time revoke the appointment under section 35(1) of a person as an Acting Deputy President.(2) A revocation under subsection (1) must be in writing.(3) The Minister must consult with the President before the appointment of a person as an Acting Deputy President is revoked under subsection (1) .
Subdivision 3 - Supplementary Deputy Presidents
39. Supplementary Deputy Presidents
(1) The Minister, on the request of the President, may appoint a person as a supplementary Deputy President of the Tribunal.(2) The Minister may appoint a person under subsection (1) –(a) even though there is no vacancy in an office of Deputy President; and(b) whether or not there is more than one Deputy President; and(c) even though a person is acting under section 35 as a Deputy President.(3) The Minister may only appoint a person under subsection (1) as a supplementary Deputy President if the person is an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner.(4) An appointment under subsection (1) must be in writing.(5) The appointment of a person as a supplementary Deputy President –(a) is to be specified in the instrument of appointment to be –(i) an appointment for a term, of not more than 2 years, specified in the instrument of appointment; or(ii) an appointment in relation to a particular proceeding or particular proceedings; and(b) is to be specified in the instrument of appointment to be –(i) on a full-time basis; or(ii) on a part-time basis; or(iii) on a sessional basis.(6) A person appointed as a supplementary Deputy President –(a) may act as a Deputy President in relation to the proceedings, or for the term, for which he or she is appointed; and(b) when acting under the appointment, is to be taken to be a Deputy President for the purposes of this Act (other than the provisions of Subdivision 1, apart from section 28 ) and any relevant Act.(7) If a person is appointed as a supplementary Deputy President for a term, the Minister may, in writing, after consultation with, or at the request of, the President of the Tribunal, extend the term for which the person is appointed as a supplementary Deputy President for a further 12-month period.(8) The Minister may appoint a person under subsection (1) as many times as may be, and the period of any such appointment may be, but is not required to be, consecutive with a previous period of appointment as a Deputy President, an Acting Deputy President under section 35 or a supplementary Deputy President.(9) The Minister, by notice in writing to a person who is appointed as a supplementary Deputy President, may, at the request of the person, alter the basis, referred to in subsection (5)(b) , on which the person is appointed so that the person becomes appointed on a full-time basis, a part-time basis or a sessional basis.
40. Terms and conditions of appointment as supplementary Deputy President
(1) A person appointed as a supplementary Deputy President holds office on the terms and conditions, not inconsistent with this Act, from time to time determined by the Minister.(2) A person appointed as a supplementary Deputy President is, for the term of the appointment, entitled to be paid any remuneration or allowances determined by the Minister after consultation with the President.(3) Any remuneration and allowances that are, during a person’s term of office as a supplementary Deputy President, determined under subsection (2) to be payable to the person as a supplementary Deputy President, cannot, subject to section 5 , be reduced during the person’s term of office as a supplementary Deputy President.
41. When person ceases to be supplementary Deputy President
A person ceases to be a supplementary Deputy President of the Tribunal if –(a) the person ceases to be an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or(b) the person resigns as a supplementary Deputy President by written notice to the Minister; or(c) the person completes a term of office as a supplementary Deputy President and is not appointed again to the office for a term beginning immediately after the end of the term of office that is completed; or(d) the appointment of the person as a supplementary Deputy President is revoked under section 42(1) ; or(e) the person dies.
42. Revocation of appointment as supplementary Deputy President
(1) The Governor may at any time revoke the appointment under section 39(1) of a person as a supplementary Deputy President.(2) A revocation under subsection (1) must be in writing.(3) The Minister must consult with the President of the Tribunal before the appointment of a person as a supplementary Deputy President is revoked under subsection (1) .
Division 4 - Other members
Subdivision 1 - Selection and assessment panel
43. Selection and assessment panel
The Minister may from time to time appoint a panel of persons who, at the request of the Minister –(a) are, after consultation with the President, to recommend the selection criteria for the senior members, supplementary senior members, ordinary members and supplementary ordinary members; and(b) are to 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 section 44(1) .
Subdivision 2 - Senior members and ordinary members
44. Appointment of senior members and ordinary members
(1) The Governor may appoint a person as –(a) a senior member of the Tribunal; or(b) an ordinary member of the Tribunal.(2) The Governor may only appoint a person as a senior member of the Tribunal, or an ordinary member of the Tribunal, if the person –(a) is an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or(b) has, in the Governor’s opinion, extensive knowledge, expertise or experience relating to a type of matter in relation to which functions or powers may be performed or exercised by the Tribunal and, where the Governor thinks it required, holds a particular qualification or an authority to engage in a profession that relates to that type of matter.(3) The members are to be appointed under subsection (1) having regard to –(a) any selection criteria applying under section 43(a) ; and(b) any advice provided under section 43(b) ; and(c) the range of knowledge, expertise and experience required within the membership of the Tribunal.(4) The Minister must consult with the President before a person is appointed under subsection (1) .(5) The appointment of a senior member or ordinary member under subsection (1) is to be –(a) specified in the instrument of appointment to be for a term of 5 years; and(b) specified in the instrument of appointment to be –(i) on a full-time basis; or(ii) on a part-time basis; or(iii) on a sessional basis.(6) A person appointed as a senior member or ordinary member may be appointed as such a member as many times as may be and the term of any such appointment may be, but is not required to be, consecutive with a previous term of appointment as such a member.(7) A person may be appointed as a senior member or ordinary member for a term beginning immediately after the end of a previous term of such an appointment without the advice of a panel established under section 43 being required to be sought.(8) [Section 44 Subsection (8) amended by No. 17 of 2021, s. 10, Applied:05 Nov 2021] The Minister, by notice in writing to a person who is appointed under subsection (1) as a senior member or an ordinary member, may, at the request of the President, alter the basis, referred to in subsection (5)(b) , on which a person is appointed so that the person becomes appointed as a senior member or an ordinary member, respectively, on a full-time basis, a part-time basis or a sessional basis.(9) [Section 44 Subsection (9) amended by No. 17 of 2021, s. 10, Applied:05 Nov 2021] The Minister must consult with the President about the basis of an appointment referred to in subsection (5)(b) .
45. Terms and conditions of appointment as senior member or ordinary member
(1) A person appointed as a senior member or ordinary member holds office on the terms and conditions, not inconsistent with this Act, specified in his or her instrument of appointment.(2) The Minister must consult with the President from time to time about the terms and conditions to be included, in accordance with subsection (1) , in instruments of appointment of persons under section 44(1) .(3) A person appointed as a senior member or ordinary member is, for the term of the appointment, entitled to be paid the remuneration and allowances that are specified in the person’s instrument of appointment, as amended from time to time.(4) An amount to which a person appointed as a senior member or ordinary member is entitled under subsection (3) cannot, subject to section 5 , be reduced during the person’s term of office.
46. When senior member or ordinary member ceases to hold office
A person ceases to be a senior member or an ordinary member if –(a) where the person was appointed –(i) on the basis that the person satisfied the requirement of section 44(2)(a) – the person ceases to be an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or(ii) on the basis that the person held a particular qualification or an authority to engage in a profession – if the person ceases to hold that qualification or authority; or(b) the person resigns by written notice to the Minister; or(c) the person completes a term of office as such a member and is not appointed again to the office for a term beginning immediately after the end of the term of office that is completed; or(d) the appointment of the person as a senior member or an ordinary member is revoked under section 47(1) ; or(e) the person dies.
47. Revocation or suspension from office of senior member or ordinary member
(1) The Governor may revoke the appointment of a senior member or ordinary member for –(a) mental or physical incapacity to satisfactorily perform or exercise the functions or powers of a member; or(b) neglect of duty as a member; or(c) misconduct as a member of the Tribunal, or misbehaviour that brings the Tribunal into disrepute; or(d) breach of a code of conduct, but only on the recommendation of the President.(2) The Minister must consult with the President before the appointment of a senior member or ordinary member is revoked under subsection (1) .(3) The President may, on his or her own initiative or at the request of the Minister, suspend from office a senior member or ordinary member if it appears that there may be grounds for the revocation of the appointment of the member.(4) If a senior member, or ordinary member, who is appointed on a full-time or part-time basis is suspended under subsection (3) , the member remains entitled to the member’s usual remuneration and allowances during the period of suspension.(5) The Minister may revoke a suspension under subsection (3) .(6) A suspension under subsection (3) , and a revocation of such a suspension under subsection (5) , must be in writing.
Subdivision 3 - Supplementary members
(1) The Minister, at the request or with the agreement of the President, may appoint a person as a supplementary senior member, or a supplementary ordinary member, of the Tribunal.(2) The Minister may only appoint a person under subsection (1) if the person –(a) is an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or(b) [Section 48 Subsection (2) amended by No. 17 of 2021, s. 11, Applied:05 Nov 2021] has, in the Minister’s opinion, extensive knowledge, expertise or experience relating to a type of matter in relation to which functions or powers may be performed or exercised by the Tribunal, and, where the Minister thinks it required, holds a particular qualification or an authority to engage in a profession that relates to that type of matter; or(c) [Section 48 Subsection (2) amended by No. 17 of 2021, s. 11, Applied:05 Nov 2021] is to be designated under the Health Practitioners Tribunal Act 2010 as a professional member, or a community member, for the purposes of that Act.(3) [Section 48 Subsection (3) amended by No. 17 of 2021, s. 11, Applied:05 Nov 2021] In appointing a person under subsection (1) as a supplementary senior member or a supplementary ordinary member, the Minister must (except in relation to a person to whom subsection (2)(c) applies) have regard to –(a) any selection criteria applying under section 43(a) , whether in relation to a supplementary senior member or a supplementary ordinary member, or both; and(b) any advice provided under section 43(b) ; and(c) the range of knowledge, expertise and experience required within the membership of the Tribunal.(4) An appointment under subsection (1) must be in writing.(5) The appointment of a person under subsection (1) –(a) is to be specified in the instrument of appointment to be –(i) an appointment for a term, of not more than 2 years, specified in the instrument of appointment; or(ii) an appointment in relation to a particular proceeding or particular proceedings; and(b) is to be specified in the instrument to be –(i) on a full-time basis; or(ii) on a part-time basis; or(iii) on a sessional basis.(6) [Section 48 Subsection (6) amended by No. 17 of 2021, s. 11, Applied:05 Nov 2021] The Minister, by notice in writing to a person who is appointed under subsection (1) as a supplementary senior member or as a supplementary ordinary member, may, at the request of the President, alter the basis, referred to in subsection (5)(b) , on which a person is appointed so that the person becomes appointed on a full-time basis, a part-time basis or a sessional basis.(7) A person who is appointed under subsection (1) as a supplementary senior member or a supplementary ordinary member –(a) may act as a member of the Tribunal in relation to the particular proceeding, or particular proceedings, or for the term, for which the person is appointed; and(b) when acting under the appointment is taken to be a senior member, or an ordinary member, respectively, for the purposes of this Act and any relevant Act.(8) The Minister, after consultation with the President, may extend for a further 6 months the term of appointment of a person appointed under subsection (1) .(9) A person appointed as a supplementary senior member, or supplementary ordinary member, may be appointed as such a member as many times as may be and the term of any such appointment may be, but is not required to be, consecutive with a previous term of appointment as such a member.
49. Terms and conditions of appointment as supplementary member
(1) A person appointed under section 48(1) holds office on the terms and conditions, not inconsistent with this Act, specified in his or her instrument of appointment.(2) The Minister must consult with the President from time to time about the terms and conditions to be included in instruments of appointment of persons under section 48(1) .(3) A person appointed under section 48(1) is, for the term of the appointment, entitled to be paid the remuneration or allowances that are specified in the person’s instrument of appointment, as amended from time to time.(4) An amount to which a person appointed as a supplementary senior member or supplementary ordinary member is entitled under subsection (3) cannot, subject to section 5 , be reduced during the person’s term of office.
50. When supplementary member ceases to hold office
(1) A person appointed under section 48(1) ceases to be a supplementary senior member or a supplementary ordinary member if –(a) where the person was appointed –(i) on the basis that the person satisfied the requirement of section 48(2)(a) – the person ceases to be an Australian lawyer of not less than 5 years’ standing as an Australian legal practitioner; or(ii) on the basis that the person held a particular qualification or an authority to engage in a profession – the person ceases to hold that qualification or authority; or(iii) [Section 50 Subsection (1) amended by No. 17 of 2021, s. 12, Applied:05 Nov 2021] on the basis that the person is to be designated, under the Health Practitioners Tribunal Act 2010 , as a professional member, or a community member, for proceedings, if the person ceases under that Act to be a professional member, or community member, respectively; or(b) the person resigns by written notice to the Minister; or(c) the person completes a term of office as such a member and is not appointed again to the office for a term beginning immediately after the end of the term of office that is completed; or(d) the appointment of the person as a supplementary senior member or a supplementary ordinary member is revoked under subsection (2) ; or(e) the person dies.(2) The Governor may at any time revoke the appointment of a person under section 48(1) .(3) The Minister must, before the appointment of a person under section 48(1) is revoked under subsection (2) , consult with the President.
Subdivision 4 - Miscellaneous
51. Effect of State Service employment or appointment
(1) A person may hold the office of senior member, ordinary member, supplementary senior member or supplementary ordinary member, in conjunction with State Service employment.(2) However, the State Service Act 2000 does not apply to such a person in his or her capacity as a member.(3) A senior member, ordinary member, supplementary senior member or supplementary ordinary member is not, despite any other provision of this Act, entitled under this Act to any remuneration or allowances in relation to his or her appointment or service as such a member, except with the approval of the Minister administering the State Service Act 2000 .
52. Engagement in other work by members
(1) The President –(a) must advise the Minister of the nature of any paid employment or professional work undertaken outside the President’s duties as President or a member of the Tribunal; and(b) must not engage in any such employment or work if the Minister informs the member that, in the Minister’s opinion, to do so would or may conflict with the proper performance of the President’s duties as President or a member of the Tribunal.(2) A Deputy President, senior member or ordinary member –(a) must advise the President of the nature of any paid employment or professional work undertaken outside the member’s 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.
Division 5 - Registrars and other members of staff of Tribunal
(1) The Secretary of the Department must appoint a State Service officer, or State Service employee, to be the Registrar of the Tribunal.(2) The Registrar of the Tribunal is to be the principal registrar of the Tribunal.(3) The Secretary of the Department must appoint at least one person who is a State Service officer, or State Service employee, to be a Deputy Registrar of the Tribunal.(4) The Secretary of the Department must consult with the President of the Tribunal before making an appointment under this section.(5) The office of the Registrar or of a Deputy Registrar is to be held in conjunction with employment in the State Service.
(1) The functions of the Registrar are –(a) the functions prescribed for the purposes of this section; and(ab) [Section 54 Subsection (1) amended by No. 17 of 2021, s. 13, Applied:05 Nov 2021] the functions conferred on the Registrar under any other Act; and(b) [Section 54 Subsection (1) amended by No. 17 of 2021, s. 13, Applied:05 Nov 2021] other functions assigned to the Registrar by the President or under the Tribunal rules.(2) The functions of a Deputy Registrar are –(a) the functions prescribed for the purposes of this section; and(b) [Section 54 Subsection (2) amended by No. 17 of 2021, s. 13, Applied:05 Nov 2021] other functions assigned to the Deputy Registrar by the President or the Registrar or under the Tribunal rules.(3) A registrar is, in the performance of any function or the exercise of any power, subject to the direction of the President.
[Section 55 Amended by No. 17 of 2021, s. 14, Applied:05 Nov 2021] A registrar may delegate a function of the registrar under this Act (other than this power of delegation) or another Act –(a) to a particular person or committee; or(b) to persons from time to time performing particular duties or holding or acting in particular positions.
(1) The President may make arrangements with the Secretary of the Department for the services of State Service officers or State Service employees, who are employed in the Department, to be made available to the Tribunal to enable the Tribunal to perform and exercise the functions and powers of the Tribunal.(2) A State Service officer or State Service employee whose services are made available to the Tribunal under subsection (1) may serve the Tribunal in conjunction with State Service employment, but when so serving is subject to the direction of the President in relation to matters relating to this Act or a relevant Act.
57. Staff may be designated to be officers of Tribunal
The Registrar may, by instrument in writing, designate –(a) a member of the staff of the Tribunal, or persons within a class of members of the staff of the Tribunal, to be officers of the Tribunal; or(b) persons from time to time performing particular duties, or holding or acting in particular positions, to be officers of the Tribunal.
PART 4 - . . . . . . . .[Part 4 Repealed by No. 17 of 2021, s. 15, Applied:05 Nov 2021] [Section 58 Repealed by No. 17 of 2021, s. 15, Applied:05 Nov 2021] . . . . . . . .
PART 5 - Divisions of Tribunal
(1) The following Divisions of the Tribunal are established:(a) the General Division;(b) the Protective Division.(2) The functions and powers of the Tribunal, in relation to an Act, that are, in –allocated to a Division of the Tribunal, are to be performed and exercised in that Division and, if those functions and powers are, in the Division Schedule or in such an instrument, allocated to a stream of the Division of the Tribunal, are to be performed and exercised in that stream of the Division.(a) the Division Schedule for the Division of the Tribunal; or(b) an instrument in writing under subsection (3) –(3) [Section 59 Subsection (3) amended by No. 17 of 2021, s. 16, Applied:05 Nov 2021] The President may, by instrument in writing, allocate to a Division of the Tribunal, and to a stream of a Division of the Tribunal, the functions and powers of the Tribunal in relation to an Act that is not referred to in a Division Schedule and that are, after the commencement day, conferred on the Tribunal.(4) A Division of the Tribunal is composed of the members assigned to the Division by or under this Act.(5) A stream of a Division of the Tribunal is composed of the members assigned to the stream by or under this Act.(6) The Division Schedule for a Division of the Tribunal may include provisions about the following matters:(a) the qualifications for the appointment of a Division Head of the Division;(b) the qualifications for the assignment of members to the Division or a stream of the Division;(c) the allocation to the Division of functions and powers of the Tribunal in relation to an Act specified in the Division Schedule and an instrument under such an Act;(d) the allocation to a stream of the Division of functions and powers of the Tribunal in relation to an Act specified in the Division Schedule and an instrument under such an Act;(e) special requirements for the constitution of the Tribunal when performing or exercising functions or powers of the Tribunal allocated to the Division or to a stream of the Division;(f) special requirements in relation to the powers of, and the practice and procedure to be followed by, the Tribunal in relation to proceedings in the Division or in a stream of the Division;(g) special requirements regarding appeals from decisions made by the Tribunal in the Division or in a stream of the Division.(7) The provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provision of this Act.
(1) The President is assigned to each Division of the Tribunal and each stream of a Division of the Tribunal.(2) A Division Head –(a) is assigned to the Division of the Tribunal in respect of which he or she is appointed as the Division Head; and(b) is assigned to each stream of that Division of the Tribunal.(3) The Governor is to appoint the President or a Deputy President to be the Division Head in relation to a Division of the Tribunal.(4) The Governor may appoint the President or a Deputy President to be the Division Head in relation to a Division of the Tribunal –(a) in the instrument appointing under this Act the President or Deputy President; or(b) in another instrument under this subsection.(5) The Governor, in writing, may remove a Division Head from the office of Division Head.(6) A Division Head ceases to hold office as a Division Head if he or she –(a) ceases to hold office as the President or a Deputy President; or(b) is removed from the office under subsection (5) .(7) If there is a vacancy in the office of a Division Head, or a Division Head is absent from duty, the Minister may appoint the President, or a Deputy President, to act as the Division Head during the vacancy or absence.
61. Functions and powers of Division Heads and delegation
(1) The functions and powers of a Division Head of a Division of the Tribunal are –(a) [Section 61 Subsection (1) amended by No. 17 of 2021, s. 17, Applied:05 Nov 2021] to direct (subject to this Act, the regulations, the Tribunal rules and any direction of the President) the business of the Tribunal in that Division; and(b) to perform and exercise the other functions and powers that may be conferred or imposed on the Division Head by or under this Act or any other Act.(2) The Division Head of a Division of the Tribunal may, in writing –(a) delegate to a Deputy President a function or power of the Division Head, other than this power of delegation; and(b) [Section 61 Subsection (2) amended by No. 17 of 2021, s. 17, Applied:05 Nov 2021] delegate to a registrar or any other member of the staff of the Tribunal a function or power, of the Division Head, that is prescribed by the regulations or the Tribunal rules, other than this power of delegation.
62. Assignment of members to Divisions of Tribunal and streams
(1) Subject to this Act, the President –and may vary any such assignment at any time.(a) is to assign each member (other than the President or a Division Head), including each Deputy President, to one or more Divisions of the Tribunal; and(b) may assign a member who is a Division Head to one or more Divisions of the Tribunal in respect of which the member is not a Division Head –(2) An assignment under subsection (1) of a member to a Division of the Tribunal –(a) is to be in writing; and(b) is to be made in accordance with any applicable provisions of the Division Schedule for the Division or of this Act and any relevant Act; and(c) is subject to any limitations specified in the member’s instrument of appointment or assignment.(3) An assignment under subsection (1) of a member to a Division of the Tribunal may be limited to participation in proceedings that are in one or more streams of the Division.(4) If a person is appointed as a member in relation to proceedings that are within a Division of the Tribunal, the member is to be taken to be assigned under subsection (1) to the Division of the Tribunal.
63. Streams of Divisions of Tribunal
(1) Each stream that is specified in a Division Schedule to be a stream of the Division of the Tribunal is a stream of the Division of the Tribunal for the purposes of this Act.(2) The President may assign a Deputy President to one or more streams of a Division of the Tribunal to which the Deputy President is assigned.(3) The Division Head of a Division of the Tribunal may assign to a stream of the Division of the Tribunal a senior member, or an ordinary member, of the Tribunal who is assigned to the Division of the Tribunal, and may vary at any time the assignment of the member to a stream.(4) An assignment of a member to a stream of a Division of the Tribunal –(a) is to be made in accordance with any applicable provisions of the Division Schedule for the Division of the Tribunal or of this Act and any relevant Act; and(b) is subject to any limitations specified in the member’s instrument of appointment or assignment.(5) If a senior member or an ordinary member is appointed as such a member in relation to particular matters, or proceedings, that are within a stream of a Division of the Tribunal, the member is to be taken to be assigned to the stream.
PART 6 - Constitution of Tribunal[Part 6 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 64 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) 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 5 members.(3) A person is not 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.(4) The Tribunal may be constituted by –(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 that is –to be a purpose for which the Tribunal may be constituted by a registrar, or such other member of the staff of the Tribunal, respectively.(i) specified by this Act or a relevant Act; or(ii) prescribed by the Tribunal rules; or(iii) determined by the President –(5) If 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 so directs, refer the matter to the Tribunal for determination by the Tribunal.(6) Except as constituted by a registrar, or other member of the staff of the Tribunal, in accordance with subsection (4) , the Tribunal is to be constituted in relation to proceedings in accordance with the requirements of an applicable Division Schedule in relation to such proceedings.
65. Alteration of constitution of Tribunal and provision for separate dealing with aspects of matters
[Section 65 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to section 64(6) , the President may, as he or she considers fit, do either or both of the following:(a) alter who is to constitute the Tribunal for the purpose of dealing with a matter, or anything relating to a matter, after the Tribunal has begun to deal with the matter;(b) provide that different aspects of the same matter may be dealt with by different members of the Tribunal.(2) If the President alters the constitution of the Tribunal under subsection (1)(a) , the Tribunal as constituted after the alteration may have regard to –(a) any record of the proceedings in relation to the matter before the alteration; and(b) any evidence taken in the proceedings before the alteration.(3) If the President provides under subsection (1)(b) that different aspects of the same matter may be dealt with by different members of the Tribunal, the members of the Tribunal may, during or after dealing with the different aspects of a matter, come together and have regard to any evidence taken by the respective members of the Tribunal for the purposes of the proceedings.(4) 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.
66. Proceedings in respect of same matter may be heard together
[Section 66 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] The Tribunal may, if it considers it appropriate to do so, organise its business and regulate its proceedings in such a way that 2 or more proceedings in respect of the same matter are heard together.
67. Who presides at proceedings of Tribunal
[Section 67 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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 in relation to the matter.(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.(3) The order of precedence of offices is as follows:(a) President;(b) Deputy President;(c) senior member;(d) ordinary member.
68. Decision if 2 or more members constitute Tribunal
[Section 68 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to the provisions of a relevant Act, if the Tribunal is constituted by 2 or more members, a question that they are required to decide is resolved 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.(2) Nothing in subsection (1) is to be taken to prevent the application of section 117 in relation to a matter.
69. Validity of acts and proceedings of Tribunal
[Section 69 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] An act of the Tribunal, or any proceedings, is not invalid by reason only of –(a) a vacancy in the membership of the Tribunal; or(b) a defect in the appointment of a person to be a member of the Tribunal or of a panel from which members of the Tribunal are drawn; or(c) a defect in the appointment of any other person to act on behalf of the Tribunal.
70. Disclosure of interest by members of Tribunal
[Section 70 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] If the Tribunal is constituted by, 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, the member –(a) must disclose the interest to the parties to the proceedings; and(b) must disclose the interest to the President or, if the President is the member with the interest, make a record of the interest and declare whether he or she will withdraw from the proceedings; and(c) 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 has declared that he or she will 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.
PART 7 - Jurisdiction of Tribunal[Part 7 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
Division 1 - Jurisdiction[Division 1 of Part 7 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 71 Substituted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal has 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 or matter to be brought before the Tribunal, the Act is taken to confer jurisdiction on the Tribunal to deal with the matter concerned.(3) A matter in relation to which the Tribunal has jurisdiction comes within –(a) its original jurisdiction, as determined under section 72 ; or(b) its review jurisdiction, as determined under section 74 .
Division 2 - Original jurisdiction[Division 2 of Part 7 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 72 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] If a relevant Act confers on the Tribunal jurisdiction to deal with a matter that does not involve a reviewable decision, the matter is within the Tribunal’s original jurisdiction.
73. Proceedings in original jurisdiction
[Section 73 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to subsections (2) and (3) , the Tribunal will, in exercising its original jurisdiction, depending on the nature of the matter –(a) act as the original decision-maker in the matter and accordingly apply those principles which, according to law, are to be applied to persons or bodies that make such decisions pursuant to statute; or(b) resolve a dispute between parties to the relevant proceedings; or(c) adopt any other course of action that the Tribunal considers appropriate to deal with the matter.(2) In exercising its original jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act and may, in addition to exercising its powers under this Act, exercise all the powers that are conferred by the relevant Act on the Tribunal as the original decision-maker.(3) The relevant Act may modify the operation of this Act in relation to a matter that is within the Tribunal’s original jurisdiction.
Division 3 - Review jurisdiction[Division 3 of Part 7 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 74 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If a relevant Act confers on the Tribunal jurisdiction to deal with a matter and that matter, expressly or necessarily, involves a review of a decision (a reviewable decision), the matter is within the Tribunal’s review jurisdiction.(2) For the purposes of this Act –(a) unless paragraph (b) applies, the decision-maker for a reviewable decision is the person or body that made or is taken to have made the reviewable decision; and(b) the Tribunal rules may provide –and Tribunal rules made under this paragraph are to then have effect in accordance with their terms.(i) that the decision-maker for a reviewable decision, instead of being the person or body under paragraph (a) , is to be a person or body that is designated by the Tribunal rules to be a suitable entity to act as the decision-maker for the purposes of this Act or specified provisions of this Act; or(ii) that a reference to the decision-maker for a reviewable decision in this Act, or specified provisions of this Act, will be taken to include a reference to a person or body that is designated by the Tribunal rules to be a suitable entity to act jointly with the person or body under paragraph (a) for the purposes of this Act (or specified provisions of this Act) –(3) 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.(4) For the purposes of this Act, a matter in relation to which jurisdiction is conferred on the Tribunal under Division 2 of Part 3 of Chapter 3 of the Mental Health Act 2013 is not to be taken to be a matter that involves a reviewable decision.
75. Nature of proceedings in review jurisdiction
[Section 75 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The purpose of a review of a reviewable decision is to produce the correct or preferable decision.(2) Subject to subsection (6) , if a reviewable decision, to which an application for review made to the Tribunal relates, is a decision under an Act, or regulations or an instrument made under an Act, that is an Act in relation to which the functions and power of the Tribunal are allocated under clause 3 of Part 8 of Schedule 2 to the Resource and Planning stream, the review by the Tribunal of the reviewable decision is to be by way of a hearing de novo of the matter to which the reviewable decision relates.(3) Subject to subsections (4), (5), (6) and (7) and the provisions of a relevant Act, if a reviewable decision, to which an application for review made to the Tribunal relates, is a decision in relation to an Act, or regulations or an instrument made under an Act, that is not an Act to which subsection (2) applies, the review by the Tribunal of the reviewable decision is to be by way of a rehearing of the matter to which the reviewable decision relates.(4) On a rehearing, the Tribunal may have regard to, and give appropriate weight to, the decision of the original decision-maker.(5) Proceedings on a rehearing may 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 review jurisdiction in relation to a reviewable decision under a relevant Act –(a) the Tribunal is to deal with a matter in accordance with this Act and the relevant Act; and(b) has, in addition to the powers of the Tribunal under this Act, all the powers that are conferred by the relevant Act on the original decision-maker.(7) The relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal’s review jurisdiction under the relevant Act.
76. Decision-maker must assist Tribunal
[Section 76 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) In proceedings for the review by the Tribunal 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, if directed to do so by the Tribunal, provide the following to the Tribunal within the period directed by the Tribunal:(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 that 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 further particulars specified in the notice.(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 that it considers proper.
77. Effect of review proceedings on decision being reviewed
[Section 77 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The commencement of proceedings for the review by the Tribunal of a reviewable 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 by the Tribunal of a reviewable decision, the Tribunal or the decision-maker may, on application or on the Tribunal’s or the decision-maker’s own initiative, make an order staying or varying the operation or the implementation of the whole or a part of the reviewable decision –if the Tribunal, or the decision-maker, respectively, is satisfied that it is just and reasonable in the circumstances to make the order.(a) pending the determination of the matter; or(b) until such time (whether before or after the determination of the matter) as the Tribunal or the decision-maker specifies, if at all, in the order –(3) An order by the Tribunal, or the decision-maker, under subsection (2) –(a) is subject to the conditions, if any, that 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.
[Section 78 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to the provisions of a relevant Act, the Tribunal, on a review by the Tribunal of a reviewable decision, may –and, in any case, may make any order that the Tribunal considers appropriate.(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 –(2) The reference in subsection (1) to an order includes a reference to –that the Tribunal considers appropriate.(a) an interim order pending the reconsideration and determination of the matter by the decision-maker; and(b) any ancillary or consequential order –(3) 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.(4) 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.(5) Without limiting subsection (4)(a) , the decision-maker has power to do anything necessary to implement the Tribunal’s decision.(6) Despite subsection (4)(a) , the decision as affirmed, varied or substituted is not again open to review before the Tribunal as a decision of the decision-maker.
PART 8 - Principles, Powers and Procedures[Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
Division 1 - Principles governing proceedings[Division 1 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
79. Principles governing proceedings
[Section 79 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] In any proceedings, but subject to the provisions of a relevant Act –(a) the procedure of the Tribunal is, subject to this Act, to be conducted with the minimum of formality; and(b) the Tribunal –(i) is not bound by the rules of evidence; and(ii) 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; and(iii) may otherwise inform itself as it considers 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.
Division 2 - Procedure generally[Division 2 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 80 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] The Tribunal will sit at the times and places that the President directs, which may include at different places at the same time.
[Section 81 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to this or any other Act, proceedings before the Tribunal, other than alternative dispute resolution processes or compulsory conferences, must be heard in public.(2) The Tribunal may give a direction under subsection (3) if 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; or(d) for any other reason that the Tribunal considers sufficient.(3) The Tribunal may give directions –(a) requiring that a hearing, or part of a hearing, be held in private; or(b) prohibiting or restricting the publication of the name and address of a witness appearing before the Tribunal or of any evidence that may enable the identification of any person who has appeared before the Tribunal, who is a party in proceedings or who is affected by a proceeding; or(c) prohibiting or restricting the publication of evidence given before the Tribunal or of the contents of any document produced to the Tribunal; or(d) 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(e) excluding any person from the hearing before the Tribunal of any part of the proceedings.(4) A person must comply with a direction of the Tribunal under subsection (3) .Penalty: Fine not exceeding 50 penalty units.
82. Electronic hearings and proceedings without hearings
[Section 82 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If the Tribunal considers it appropriate, it may allow –to participate in any proceedings by means of telephone, video link or any other system or method of communication.(a) the parties and their representatives; and(b) any witnesses, or one or more of them –(2) If the Tribunal considers 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 or any other part of the proceedings.(3) Subsection (2) does not apply to proceedings in relation to which a hearing is required by a relevant Act to be held.(4) If the Tribunal acts under this section, the Tribunal is to take reasonably practicable 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.
83. Practice and procedure generally
[Section 83 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The provisions of a Division Schedule in relation to a stream of a Division apply in relation to proceedings in respect of the stream of that Division.(2) 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 implications of those assertions; and(c) to explain to the parties to any proceedings, 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 to any proceedings have the opportunity in the proceedings to be heard or otherwise have their submissions received.(3) 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 decide the matters on which it will hear oral evidence or argument; and(c) may permit or require evidence or argument to be presented in writing and may require such evidence to be verified by an oath or affirmation; and(d) may limit the time available for presenting the respective cases of parties to proceedings that are before the Tribunal at a hearing to an extent that it considers would not impede the fair and adequate presentation of the cases; and(e) may require a document to be served outside the State; and(f) may adjourn any proceedings at any time and to any place, including for the purpose of enabling the parties to the proceedings to negotiate a settlement or for the purpose of reconsideration of a decision by the decision-maker; and(g) may proceed to hear and determine proceedings in the absence of a party to the proceedings.(4) To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act, Tribunal rules, practice directions or a relevant Act, the practice or procedure is to be as the Tribunal determines.
84. Directions for conduct of proceedings
[Section 84 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may give directions at any time in any proceedings and do whatever is necessary for the expeditious and fair conduct of proceedings.(2) The Tribunal may give directions on its own initiative or at the request of a party to proceedings.(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 proceedings to produce a document or other material, or to provide information, to the Tribunal or another party to the proceedings.
85. Consolidating and splitting proceedings
[Section 85 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may direct that 2 or more proceedings that concern the same or related facts or circumstances –(a) be consolidated into one 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; or(b) that proceedings commenced by 2 or more persons jointly be split into separate proceedings.
86. Completion of part-heard matters
[Section 86 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] 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 continue to act in the relevant office for the purpose of completing the hearing and determining proceedings part-heard by the person at the time when he or she ceased to hold that office.
Division 3 - Dismissal of proceedings or part of proceedings[Division 3 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 87 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] The Tribunal may, at any time, make an order striking out all, or any part, of any proceedings if it considers that the matter involved in the proceedings, or any aspect of it, would be more appropriately dealt with by another tribunal, a court or any other person.
88. Dismissing proceedings on withdrawal or for want of prosecution
[Section 88 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The applicant in any proceedings may, at any time, withdraw, or agree to the withdrawal of, the proceedings or a part of the proceedings.(2) Unless otherwise provided by the Tribunal rules, an applicant may only act under subsection (1) with the leave of the Tribunal.(3) The Tribunal may, at any time, 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) a legally qualified member of the Tribunal; or(b) a registrar who is authorised in writing by the President to make such an order, whether generally or in relation to particular classes of matters or otherwise.(6) The Tribunal may make an order under this section on the application of a party to proceedings or on its own initiative.
89. Frivolous or vexatious proceedings
[Section 89 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) This section applies if the Tribunal believes that a proceeding or a part of a proceeding –(a) is frivolous, vexatious, misconceived or lacking in substance; or(b) is otherwise an abuse of process.(2) If this section applies, the Tribunal may order that the proceedings, or the part of a proceeding, be dismissed or struck out and may make any related or ancillary order.(3) The Tribunal’s power to make an order under subsection (2) is exercisable only by –(a) a legally qualified member of the Tribunal; or(b) a registrar who is authorised in writing by the President to make such an order, whether generally or in relation to particular classes of matters or otherwise.(4) The Tribunal may act under subsection (2) on the application of a party to the proceedings or on its own initiative.(5) If a proceeding, or a part of 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 the President or a Deputy President.
90. Proceedings being conducted to cause disadvantage
[Section 90 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) This section applies if the Tribunal believes on reasonable grounds 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 to the proceedings 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 to the proceedings who is causing the disadvantage is the applicant, order that the proceedings be dismissed or struck out; or(b) if the party to the proceedings who is 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 to the proceedings or on its own initiative.(4) The Tribunal’s power to make an order under subsection (2) is exercisable only by –(a) a legally qualified member of the Tribunal; or(b) a registrar who is authorised in writing by the President to make such an order, whether generally or in relation to particular classes of matters or otherwise.(5) 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 the President or a Deputy President.
Division 4 - Tribunal rules, practice directions and codes of conduct[Division 4 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 91 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) There is to be a Rules Committee.(2) The Rules Committee is to be constituted by the following:(a) the President;(b) each Division Head or a member nominated by the Division Head;(c) the other members, if any, appointed by the President from time to time.(3) The quorum for a meeting of the Rules Committee is a majority of the members of the Committee from time to time.(4) The procedures of the Rules Committee are to be as determined by the President from time to time.(5) The Rules Committee may only make under section 92 a rule for a particular Division of the Tribunal that is not a rule applying to Divisions generally, if the Division Head in relation to the Division, or a member nominated by the Division Head, is present at the meeting at which the rule is made.
[Section 92 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Tribunal rules may be made under this section –(a) by the President, within 30 days after the commencement day; or(b) by the Rules Committee.(2) The Tribunal rules may –(a) regulate the business of the Tribunal and the duties of the various members and staff of the Tribunal; and(b) authorise the registrars and other members of the staff of the Tribunal to exercise powers with respect to proceedings; and(c) regulate the practice and procedure of the Tribunal; and(d) impose obligations, on persons seeking to commence proceedings, to take any step, including –(i) specifying forms in which applications to the Tribunal may or must be made or allowing for the Tribunal or a member of the Tribunal to specify the forms in which applications to the Tribunal may or must be made; and(ii) requiring persons to give a notification (orally or in writing) to other persons; and(iii) requiring persons to provide any specified information; and(e) impose obligations to provide an address for service; and(f) impose obligations on parties to proceedings to disclose to each other, before or in connection with the hearing of the proceedings, the contents of expert reports or other material of relevance to the proceedings; and(g) regulate the referral of questions for investigation and report by an expert or referee; and(h) regulate the form in which evidence may be taken; and(i) restrict or prohibit certain classes of persons from appearing as representatives in proceedings; and(j) provide for the Tribunal, a member of the Tribunal or a registrar to waive any procedural requirement; and(k) regulate costs and provide for the assessment and settling of costs; and(l) provide for witness allowances and expenses; and(m) provide for other matters relating to the management, conduct or settlement of proceedings before the Tribunal; and(n) provide for any matter indicated in this Act to be a matter that may be provided for in the Tribunal rules; and(o) deal with any other matters necessary or expedient for the effective and efficient operation of the Tribunal.(3) The Tribunal rules may include rules in respect of any jurisdiction conferred on the Tribunal by a relevant Act.(4) The Tribunal rules may not include a requirement to pay a fee or prescribe an amount of a fee.(5) The Tribunal rules may allow for a matter, in relation to which Tribunal rules may, under this Act, be made, to be determined by the President, another member of the Tribunal or a registrar.(6) The Tribunal rules may prescribe different rules for –(a) each of the Divisions of the Tribunal; and(b) different streams in the same Division of the Tribunal; and(c) different classes of matters.(7) The Tribunal rules must be consistent with this Act, any relevant Act and the regulations.(8) The Tribunal rules take effect from the date of publication in the Gazette or a later date specified in the Tribunal rules.
[Section 93 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The President may give directions (practice directions) relating to the practice and procedures to be followed in, and to the conduct of, proceedings in the Tribunal.(2) The practice directions must be consistent with this Act, any relevant Act, the regulations and the Tribunal rules.(3) The President must ensure that practice directions are publicly available.(4) Without limiting subsection (3) , that subsection is taken to be complied with if a copy of the practice directions is published on a website of the Tribunal.(5) Each member of the Tribunal, and the parties to proceedings and their representatives, must comply with any applicable practice directions.
[Section 94 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] The President may prepare and issue a code of conduct that is to apply to members of the Tribunal.
Division 5 - Parties[Division 5 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 95 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A person is a party to proceedings 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) without limiting paragraph (a), (b) or (c) –(i) a respondent to an application before the Tribunal; or(ii) a person against whom a claim is made by the proceedings; or(iii) a party to a dispute before the Tribunal; or(e) a person joined in the proceedings by order of the Tribunal under section 96 ; or(f) a person lawfully intervening in the proceedings; or(g) 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 of a relevant Act or provision of a Division Schedule.(3) In any proceedings in relation to which 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.
96. Person may be joined as party
[Section 96 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may order that a person be joined as a party to proceedings 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.
97. Intervention in proceedings
[Section 97 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] The following persons may intervene and be heard in proceedings to which they are not already parties:(a) the Attorney-General;(b) a Minister who administers the relevant Act under which is conferred or imposed a function or power, the performance or exercise of which, or purported performance or purported exercise of which, is in issue in the proceedings;(c) any other person who is authorised by a relevant Act, or the Tribunal rules, to intervene in proceedings.
Division 6 - Representation[Division 6 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 98 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A party to proceedings is, subject to the provisions of a relevant Act, entitled to –(a) appear personally; or(b) be represented by an Australian legal practitioner; or(c) with the leave of the Tribunal and subject to the Tribunal rules – be represented by another 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 referred to in subsection (1)(b) or (c) in proceedings if –(a) the person is an Australian legal practitioner whose practising certificate is suspended; or(b) the person’s name has been removed from the local roll, within the meaning of the Legal Profession Act 2007 , or on an equivalent roll under a law, of another State or a Territory, that corresponds to that Act; or(c) the person is subject to disciplinary proceedings under the Legal Profession Act 2007 or a law, of another State or a Territory, that corresponds to that Act.(4) The Tribunal may –(a) appoint a person to act as guardian ad litem for a party; or(b) appoint a person to represent a party; or(c) order that a party be separately represented.(5) In proceedings that directly, or significantly, affect a person who has not attained the age of 18 years and who is not a party to the proceedings, the Tribunal may –(a) appoint a person to act as guardian ad litem for the person; or(b) order that the person be separately represented.
Division 7 - Compulsory conferences, alternative dispute resolution processes and settlement[Division 7 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 99 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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 Tribunal rules or a relevant Act, require parties to proceedings to attend a compulsory conference.(3) Despite subsection (2) and any provision of a relevant Act that requires or permits a conference to be held, the Tribunal may dispense with a compulsory 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 another 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.
100. Procedure for compulsory conferences
[Section 100 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) 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.(2) Unless the member of the Tribunal presiding at the conference directs otherwise, a compulsory conference is to be held in private.(3) Subject to this section and except to the extent to which the Tribunal 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.(4) The member of the Tribunal presiding at a compulsory conference may do any one or more of the following:(a) if that member is not the President or a Deputy President – refer any question of law to the President or a Deputy President for determination;(b) require a party to the proceedings to provide particulars of the party’s case;(c) determine who, apart from the parties to the proceedings and their representatives, may be present at the conference;(d) adjourn the conference if the member considers it may assist in enabling the parties to attempt to reach 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) permit a party to the proceedings to withdraw from the proceedings, and make any consequential order that is appropriate in the circumstances;(g) determine a matter against any party to the proceedings who obstructs or delays the conference, fails to attend the conference or fails to comply with a Tribunal rule or an order of the Tribunal and, in so doing, make any order as the member of the Tribunal considers fit, including an order as to costs;(h) do other things for which the Tribunal rules provide.(5) If a question of law is referred to the President or a Deputy President under subsection (4)(a) , the President or Deputy President may reserve the question in the form of a special case stated for the opinion of the Supreme Court under section 117 .(6) Evidence of anything said or done in the course of a compulsory conference is inadmissible in proceedings, except by consent of all parties to the proceedings.(7) 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.(8) 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, unless all parties to the proceedings agree to the member’s continued participation.(9) The regulations may set out circumstances where the outcome of any compulsory conference, including a settlement, is to be available to members of the public.
101. Settlement of matter during compulsory conference
[Section 101 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If the parties to proceedings, during a compulsory conference in relation to proceedings (other than a compulsory conference that the parties have been required to attend in accordance with section 134 ), reach a settlement in relation to the proceedings or part of the proceedings, the member of the Tribunal presiding at the compulsory conference may –(a) if the member is a legally qualified member and the terms of the settlement are in a written agreement signed by or on behalf of the parties –(i) accept the terms of the settlement 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; or(ii) decline to accept the terms of the settlement; or(b) if the member is not a legally qualified member and the terms of the settlement are in a written agreement signed by or on behalf of the parties – provide the written agreement to the Tribunal.(2) The member of the Tribunal presiding at a compulsory conference –(a) must decline to accept under subsection (1)(a) the terms of a settlement reached by the parties if the settlement appears to the member to be inconsistent with this Act or a relevant Act; and(b) may decline to accept under subsection (1)(a) the terms of a settlement reached by the parties –(i) 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; or(ii) if the member considers that the terms of the settlement are inappropriate.(3) If the member of the Tribunal presiding at a compulsory conference declines to accept under subsection (1)(a) the terms of a settlement, the member may adjourn the proceedings to enable the parties to explore the possibility of varying the settlement to comply with this Act or a relevant Act.(4) If the parties to proceedings, during a compulsory conference in relation to proceedings (other than a compulsory conference that the parties have been required to attend in accordance with section 134 ), have not reached a settlement in relation to the proceedings or part of the proceedings, the member of the Tribunal presiding at the compulsory conference must advise the Tribunal that the parties have not reached a settlement in relation to the proceedings or part of the proceedings.(5) The member of the Tribunal presiding at a compulsory conference that the parties have been required to attend in accordance with section 134 must advise the Magistrates Court as to whether the parties to proceedings have reached, or have not reached, a settlement in relation to the proceedings or part of the proceedings.
102. Alternative dispute resolution
[Section 102 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may, at an initial directions hearing in relation to proceedings or at any other time, require the parties to proceedings to participate in an alternative dispute resolution process to be presided over by a person specified by the Tribunal.(2) The person specified by the Tribunal as the person to preside over an alternative dispute resolution process must be a person who has been approved by the President to act as such a person.(3) The requirement may be made with or without the consent of the parties.(4) The purpose of an alternative dispute resolution process is to resolve or narrow the issues between the parties.(5) The Tribunal rules may prescribe any of the following:(a) how notice of the alternative dispute resolution process is to be given;(b) how the alternative dispute resolution process is to be conducted.(6) Unless the person conducting the alternative dispute resolution process directs otherwise, the alternative dispute resolution process is to be held in private.(7) Subject to this section and except to the extent to which the regulations may prescribe the procedure for an alternative dispute resolution process, the person conducting the process may determine the procedure for the alternative dispute resolution process.(8) Evidence of anything said or done in the course of an alternative dispute resolution process under this section is inadmissible in proceedings before the Tribunal, except by consent of all parties to the proceedings.(9) If the person conducting the alternative dispute resolution process is a member of the Tribunal, the member cannot take any further part in dealing with the proceedings after the alternative dispute resolution process has taken place, unless all parties to the proceedings agree to the member’s continued participation.(10) The person conducting the alternative dispute resolution process in relation to a matter may adjourn the process if the person considers it may assist in enabling the parties to attempt to reach a settlement.(11) The person conducting the alternative dispute resolution process in relation to a matter must notify the Tribunal as to whether the parties have, during the process, agreed to settle, or not to settle, the matter.(12) The regulations may set out circumstances where the outcome of any alternative dispute resolution process under this Act, including details of a settlement, is to be available to members of the public.
[Section 103 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If the parties to proceedings 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.(2) A settlement given effect under this section must not be inconsistent with this Act or a relevant Act.(3) The Tribunal may reject a settlement on the basis that –(a) the settlement is inconsistent with this Act or a relevant Act; or(b) 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(c) the terms of the settlement are inappropriate.
Division 8 - Evidentiary powers[Division 8 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
104. Power to require person to give evidence or to produce evidentiary material
[Section 104 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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 (whether in response to a summons or otherwise) for the reasonable period that it considers fit and make copies of any document; and(b) require a person called to give evidence, whether in response to a summons or otherwise 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 called to give evidence, whether in response to a summons or otherwise, 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 must not –(a) refuse or fail to make an oath or affirmation when required to do so under this section; or(b) refuse or fail without reasonable excuse to produce evidentiary material that the person is required by the Tribunal to produce; or(c) refuse or fail without reasonable excuse to appear before the Tribunal in response to a summons; or(d) refuse or fail without reasonable excuse to give evidence before the Tribunal or otherwise refuse or fail, without reasonable excuse, to answer any question put in proceedings before the Tribunal or otherwise required under this Act; or(e) give false or misleading evidence to the Tribunal.Penalty: Fine not exceeding 30 penalty units or imprisonment for a term not exceeding one 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 Tribunal rules or by the President, to issue such summonses.(6) A person required to appear before the Tribunal in proceedings is entitled to be paid the expenses and allowances, if any, that are specified in the Tribunal rules.
[Section 105 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to clause 13 of Part 8 of Schedule 2 , 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.
[Section 106 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) 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.(2) This section does not limit the operation of section 105 .
107. Entry and inspection of property
[Section 107 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A member of the Tribunal may enter any land or building and carry out on or in the land or building any inspection of the land or building that the Tribunal considers relevant to any proceedings.(2) A member of the Tribunal may authorise an officer of the Tribunal to enter any land or building and carry out on or in the land or building an inspection that the member of the Tribunal considers relevant to any proceedings, including for the purposes of preparing expert evidence for the purposes of proceedings.(3) The President, a Deputy President or a legally qualified member may authorise a person who is not an officer of the Tribunal to enter any land or building and carry out on or in the land or building an inspection that the President, Deputy President or legally qualified member, respectively, considers relevant to any proceedings, including for the purposes of preparing expert evidence for the purposes of proceedings.(4) A member of the Tribunal, and a person authorised under subsection (2) or (3) , may only enter any land or building, or carry out on or in the land or building any inspection, if the member or person, respectively, has, before entering the land or building, notified the owner or occupier of the land, or building, of the intention to enter the land or building.(5) Subsection (4) does not apply in relation to the entry of land or a building if –(a) an emergency exists; or(b) the giving of notice would defeat the purpose of entering the land or building.(6) A person must not obstruct a member of the Tribunal, or a person authorised under subsection (2) or (3) , in the exercise of a power of entry or inspection under this section.Penalty: Fine not exceeding 15 penalty units or imprisonment for a term not exceeding 6 months.
[Section 108 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may, with the approval of the President, appoint an Australian legal practitioner or medical practitioner, or any other person with appropriate expertise, to assist the Tribunal in any proceedings.(2) The Tribunal may, with the approval of the President, refer, for investigation and report by an expert in the relevant field, any question arising in any proceedings.(3) The Tribunal must seek submissions from the parties to the proceedings before making a referral under this section.(4) A person to whom a question is referred under this section becomes an officer of the Tribunal and may exercise the powers of the Tribunal that the Tribunal delegates to the person.(5) The Tribunal may adopt, in whole or in part, a report obtained under this section or may reject the report.(6) Any action taken under subsection (5) does not prevent the Tribunal from making a further referral to an expert.(7) The Tribunal may order a party to proceedings to pay or contribute to the costs of an expert’s investigation and report under this section in relation to the proceedings.
109. Tribunal may authorise person to take evidence
[Section 109 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may authorise, in writing, a person, whether or not the person is 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 the President or a Deputy President.(3) The Tribunal may authorise evidence to be taken under this section outside Tasmania.(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 under this section to take evidence, the person has all the powers of a member of the Tribunal in relation to the taking of evidence.(6) Evidence take under this section –(a) is to be regarded as having been given to the Tribunal; and(b) if taken outside Tasmania, is to be regarded as having been given in Tasmania.
110. Accessibility to public of evidence
[Section 110 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to this Act and any relevant Act, 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; or(b) a transcript of evidence taken by the Tribunal in any proceedings; or(c) any documentary or other material received as evidence by the Tribunal in any proceedings; or(d) any decision or order given or made by the Tribunal; or(e) any other material of a prescribed kind.(2) Despite subsection (1) , 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 produced or provided to the Tribunal in a hearing (or part of a hearing) held in private;(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) material of a prescribed class.(3) The Tribunal may permit inspection or copying of material referred to in subsection (1) or (2) subject to any condition that 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 the regulations, for inspection or copying of material under this section.
Division 9 - Orders and powers[Division 9 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
111. Preserving subject matter of proceedings
[Section 111 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may, on the terms that appear to it to be just, make an order that may be necessary –until questions arising in the proceedings have been finally determined.(a) to preserve the subject matter of proceedings; or(b) to otherwise protect the interests of a party to proceedings –(2) The Tribunal’s power to make an order under subsection (1) is exercisable by –(a) the President or a Deputy President; or(b) any other member of the Tribunal who –(i) is a legally qualified member; and(ii) is authorised by the President to make orders under this section.(3) The Tribunal may make an order under subsection (1) on the application of a party to proceedings or on its own initiative.(4) An order may be made under subsection (1) in proceedings whether or not a person whose interests may be affected –(a) is a party to the proceedings; or(b) has been given an opportunity to be heard.(5) An order may be made under subsection (1) –(a) for a specified period; or(b) until a specified event or stage in the proceedings.(6) In making an order under subsection (1) , the Tribunal may provide for the revocation of the order if specified conditions are met.(7) The Tribunal rules may place conditions on the Tribunal’s power to make an order under subsection (1) .(8) The Tribunal’s power under subsection (1) 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.
[Section 112 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] The Tribunal has power, in relation to matters within its jurisdiction, to make interlocutory orders.
113. Conditional, alternative and ancillary orders and directions
[Section 113 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may make orders, and give directions on conditions, that 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 specified conditions are complied with.(3) The Tribunal may, when making an ancillary order in relation to proceedings, provide that a decision of the Tribunal is to be implemented by a person who is not a party to the proceedings.
114. Alternative orders and relief
[Section 114 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] 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.
[Section 115 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal 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.
116. Tribunal may review its decision if party was absent
[Section 116 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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 (including a compulsory conference) but does not include an alternative dispute resolution process.(2) A party to proceedings in respect of whom the Tribunal makes a decision may apply to the Tribunal for a review of the decision, if the party did not appear and was not represented at a relevant hearing.(3) An application under subsection (2) must be made within the time limits specified by, and otherwise in accordance with, the Tribunal rules.(4) The Tribunal rules may limit the number of applications that may 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, if practicable, by the members by whom it was constituted when it made the decision.(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 74 .
117. Determination of questions of law
[Section 117 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If a question of law arises in a hearing before the Tribunal, the member of the Tribunal constituting the Tribunal or, if the Tribunal is constituted by 2 or more members, the presiding member, may, with the consent of the President, reserve the question in the form of a special case stated for the opinion of the Supreme Court.(2) If a question of law has been reserved for the opinion of the Supreme Court, the Tribunal must not –(a) determine the matter until the opinion of the Supreme Court has been given; or(b) proceed in a manner, or make a determination, that is inconsistent with the Supreme Court on the question of law.
118. Power to cure irregularities
[Section 118 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If, in proceedings before the Tribunal or on appeal from the Tribunal to the Supreme Court, it appears to the Tribunal, or the Court, respectively, that –the Tribunal or the Court may cure the irregularity by ordering that, subject to the fulfilment of the conditions, if any, that are specified by the Tribunal, or the Court, respectively, a requirement of this Act, or of any other Act or law, be dispensed with to the extent necessary for the purpose.(a) an irregularity has occurred affecting the proceedings or any matter to which the proceedings relate; and(b) 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 –(2) An order under this section does not affect the rights or liabilities of persons who are not parties to the proceedings.
[Section 119 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may correct a decision given by the Tribunal, 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 an application made, in accordance with the Tribunal rules, by a party to the proceedings to which the relevant decision relates; or(b) on the Tribunal’s own initiative.
Division 10 - Costs[Division 10 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 120 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Unless otherwise specified in this Act, a relevant Act, regulations under 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 or regulations under a relevant Act, the Tribunal may make an order for the payment by a party to proceedings of all or any of the costs of another party to the proceedings, or of a person required to appear before the Tribunal or to produce evidentiary material, if the Tribunal considers 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 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 Tribunal rules or the regulations under a relevant Act; and(d) any other matter considered relevant by the Tribunal.(3) Subsections (2) and (4) do not apply in relation to proceedings in the Mental Health stream or in the Guardianship stream.(4) 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.(5) 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 Tribunal rules, or regulations under a relevant Act, that make provision in relation to such costs.
121. Costs of parties – related matters
[Section 121 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The power of the Tribunal under section 120(2) and (4) to make an order for the payment by a party to proceedings of the costs of another party to the proceedings 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) The power of the Tribunal under section 120(2) and (4) 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 may only be exercised by the President, a Deputy President or a legally qualified member.(3) The Tribunal cannot make an order against a party to proceedings for any expenses or loss resulting from any proceedings or matter unless –(a) the party brought or conducted the proceedings frivolously or vexatiously; or(b) any prescribed circumstances exist.(4) Without limiting anything else that may be considered in making an order for the payment by a party to proceedings of the costs of another party to the proceedings, if 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; or(b) if the party was the decision-maker – whether the party genuinely attempted to make a decision on its merits.(5) The Tribunal 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 to proceedings of the costs of another party to the proceedings.(6) The Tribunal may order that, rather than a party to proceedings, the representative of a party to the proceedings, in the representative’s own capacity, compensate that or any other party to the proceedings for costs incurred because the representative acted in, or delayed, the proceedings in a way that resulted in unnecessary costs.
122. Costs incurred by Tribunal in relation to proceedings
[Section 122 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) In this section –costs of proceedings means the costs, within a prescribed class of matters, that are determined by the Tribunal to have been incurred by the Tribunal in relation to any proceedings, other than the costs as a party.(2) The Tribunal may order that all or any of the costs of proceedings be paid by a party to the proceedings.(3) Subsection (2) does not apply in relation to proceedings in the Mental Health stream or the Guardianship stream.(4) The Tribunal cannot make an order under this section against a party to the proceedings unless –(a) the party brought or conducted the proceedings frivolously or vexatiously; or(b) the prescribed circumstances exist.
Division 11 - Information[Division 11 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
123. Reports of proceedings and giving of information in relation to Guardianship stream proceedings
[Section 123 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Except as provided by clause 10 of Part 4 of Schedule 3 , a person must not publish –(a) any particulars calculated to lead to the identification of any person in respect of whom any Guardianship stream proceedings have been brought or any other person concerned in the proceedings; and(b) pictures of any person in respect of whom Guardianship stream proceedings have been brought or any other person concerned in the proceedings.Penalty: Fine not exceeding 100 penalty units or imprisonment for a term not exceeding 6 months, or both.(2) If the Tribunal considers that it is in the public interest to do so, the Tribunal may determine that a person may publish, or cause to be published in accordance with its determination, a report of any Guardianship stream proceedings.(3) A person who makes a report or gives information to the Tribunal –is not subject to any liability for making the report or giving the information, if he or she acts in good faith and has reasonable and probable grounds for believing the report or information to be true.(a) for the purpose of an application to the Tribunal under an Act, in relation to which the performance or exercise of functions or powers has been allocated under a Division Schedule to the Guardianship stream, to assist in deciding whether an application should be made under this Act; or(b) when requested so to do by the Public Guardian, the Tribunal or an officer of the Tribunal –(4) A person must not, for the purposes of proceedings in the Guardianship stream, make a report that is malicious or false in any material particular, or give information, referred to in subsection (3) , that is malicious or false in any material particular.Penalty: Fine not exceeding 50 penalty units.
124. Provision of information in Guardianship stream proceedings
[Section 124 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Evidence given at a hearing of the Tribunal in proceedings in the Guardianship stream is not to be used in any civil or criminal proceedings other than proceedings –(a) for an offence against this Act, or an Act in relation to which the performance or exercise of functions or powers has been allocated under a Division Schedule to the Guardianship stream, to which the proceedings relates; or(b) for an offence committed at, or arising out of, a hearing of the Tribunal in relation to any Act in relation to which the performance or exercise of functions or powers has been allocated under a Division Schedule to the Guardianship stream.(2) The Tribunal may, for the purposes of any proceedings in the Guardianship stream, require any government department or State authority, the Public Guardian or a service provider, guardian or administrator, to provide a report or information on any matter relating to the proceedings.(3) Despite section 127A of the Evidence Act 2001 , a medical practitioner may, when reporting to the Tribunal in proceedings in the Guardianship stream, divulge information without the consent of the person to whom the information relates.
Division 12 - Process and enforcement[Division 12 of Part 8 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
125. Provision of documents, legal process and service
[Section 125 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A notice, order or other document for the purposes of proceedings may be served on or given to a person or body –(a) by means of personal service; or(b) by posting a copy of the notice or document, addressed to the person or body –(i) to the address for service of the person or body; or(ii) if there is no address for service in relation to the person or body – to the business address, or residential address, of the person or body, or the business address, or residential address of the person or body that is last-known to the person or body serving the notice or document; or(c) by leaving a copy of the notice or document, addressed to the person or body –(i) at the address for service of the person or body; or(ii) if there is no address for service in relation to the person or body – to the business address, or residential address, of the person or body, or the business address, or residential address, of the person or body that is last-known to the person or body serving the notice or document; or(d) if the person or body has consented to electronic service by means of a facsimile address, an email address or a mobile phone number specified by the person or body – by transmitting the notice or document, in an electronic format, addressed to the person or body, to that address or number; or(e) if the person or body is a corporation – by serving a copy of the notice or document on the corporation in any manner by which service of such a notice or document may, by law, be served on the corporation; or(f) in the manner that the Tribunal, or a registrar, determines in a particular case.(2) For the purposes of this Act, a notice, order or other document may be issued, served or executed on a Sunday as well as any other day.(3) If a person has provided to the Tribunal, in relation to proceedings or proposed proceedings, a document that contains an email address of the person or is sent to the Tribunal from an email address, the person is taken to have consented to the issue to, or service on, the person of a notice, order or other document relating to the proceedings, by means of it being sent to the email address.(4) Subject to the Tribunal rules, and any direction or order of the Tribunal, an application or other document may be given to the Tribunal –(a) by submitting it to the Tribunal in an electronic form approved by the President; or(b) by sending it by email to the registry of the Tribunal; or(c) by sending it by facsimile to the registry of the Tribunal; or(d) by giving it, at the registry of the Tribunal, to a member of staff of the Tribunal; or(e) by sending it by post to the registry of the Tribunal; or(f) by sending it in a manner approved by a registrar.(5) A registrar may refuse to receive a document presented to the Tribunal by lodgement in paper or other physical form and direct that the document be lodged with the Tribunal in an electronic form, as directed by the registrar, by which a document may be lodged with the Tribunal.
126. Enforcement of decisions and orders of Tribunal
[Section 126 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) 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 jurisdiction limit of the Magistrates Court for a monetary claim founded on contract – the Magistrates Court; and(b) in any other case – the Supreme Court.(2) 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 due and payable to the person.(3) A person must not contravene or fail to comply with an order of the Tribunal, other than a monetary order.Penalty: Fine not exceeding 60 penalty units or imprisonment for a term not exceeding one year.
127. Proof of decisions and orders of Tribunal
[Section 127 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Every document requiring authentification by the Tribunal is sufficiently authenticated without the seal of the Tribunal if it is –(a) signed by a member of the Tribunal or a registrar; or(b) authenticated in a manner prescribed by the Tribunal rules.(2) All courts and persons acting judicially must take judicial notice of the signature of any person who is or has been the President, Registrar, Deputy Registrar or a member of the Tribunal and of the fact that that person is or was the President, Registrar, Deputy Registrar or a member, as the case may be.(3) An apparently genuine document purporting –is to 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.(a) to be a copy of a decision or order of the Tribunal; and(b) to be certified as such by a registrar –
128. Disrupting proceedings of Tribunal
[Section 128 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A person must not –(a) wilfully interrupt any proceedings of the Tribunal; or(b) use offensive, threatening, abusive or insulting language, or behave in a disorderly, offensive, threatening, abusing or insulting manner, towards the Tribunal, members of the Tribunal or officers of the Tribunal or at a place where proceedings of the Tribunal are being conducted; or(c) obstruct, or improperly influence, the conduct of proceedings of the Tribunal; or(d) do anything that would, if the Tribunal were a court of record, constitute a contempt of that court.Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 3 months.(2) Nothing in this section derogates from the operation of another provision of this Act.
PART 9 - Federal Jurisdiction Proceedings[Part 9 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 129 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) In this Part –federal jurisdiction means jurisdiction of the kind referred to in section 75 or 76 of the Constitution of the Commonwealth;rules of the Court means the rules of the Court made under the Magistrates Court (Civil Division) Act 1992 ;transferred proceedings – see section 131 .(2) For the purposes of this Part, a reference to the making of an application, or an application made, to the Tribunal is taken to include the referral of a matter to, or otherwise bringing of a matter before, the Tribunal.
130. Relationship of this Part to this Act and other laws
[Section 130 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of the relevant Act.
131. Transfer to Magistrates Court of applications involving federal jurisdiction
[Section 131 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If a person has standing to make an application to the Tribunal in the exercise of its original jurisdiction under section 72 or its review jurisdiction under section 74 , the application may, if the Tribunal orders under subsection (2) that proceedings on the application are to be transferred to the Magistrates Court, be determined by the Magistrates Court in accordance with this Part instead of the Tribunal.(2) If, following an application made to the Tribunal in the manner and form required under this Act for the kind of application concerned, the Tribunal considers that –the Tribunal may order that proceedings on the application be transferred to the Magistrates Court.(a) it does not have, or there is some doubt as to whether it has, jurisdiction to determine the application because its determination may involve the exercise of federal jurisdiction; and(b) the Tribunal would otherwise have had jurisdiction enabling it to determine the application –(3) Proceedings transferred to the Magistrates Court under subsection (2) are transferred proceedings.(4) If proceedings are transferred to the Magistrates Court under this Part –(a) the application made to the Tribunal will be taken to be duly made as an application to the Court; and(b) the proceedings may be continued and completed as if steps taken in the proceedings prior to the transfer had been taken in the Court.(5) The fee payable in respect of the application is the prescribed fee (if any) payable to the Tribunal under this Act.(6) A party to the transferred proceedings is not required to pay any fees in relation to the transfer of the proceedings to the Magistrates Court unless the Court determines that additional fees are payable under the Magistrates Court (Civil Division) Act 1992 because of a substantial alteration in the nature of the claims in the proceedings.(7) An order made by the Tribunal under subsection (2) may not be the subject of review or appeal under Part 10 .(8) The Magistrates Court may remit transferred proceedings to the Tribunal for determination if the Court is satisfied that the Tribunal has jurisdiction to determine the matter.(9) If the Magistrates Court remits transferred proceedings to the Tribunal, the Court may make the orders, if any, that it considers appropriate to facilitate the determination of the proceedings by the Tribunal.(10) The Tribunal must determine transferred proceedings that are remitted to it in accordance with any orders made by the Magistrates Court and must determine such proceedings in accordance with any such order.
132. Magistrates Court proceedings, jurisdiction, powers and functions, &c.
[Section 132 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Transferred proceedings are taken to have been commenced in the Magistrates Court on the day on which the application to which the proceedings relate was first made to the Tribunal.(2) Subsection (1) applies despite any limitation period under the Limitation Act 1974 or any relevant Act that applies to the application concerned, if the application was made to the Tribunal before the expiry of the period.(3) The Magistrates Court has, and may exercise, all of the jurisdiction, powers and functions in relation to the transferred proceedings that the Tribunal would have if it could exercise federal jurisdiction, including jurisdiction, powers and functions conferred or imposed on the Tribunal by or under this Act or a relevant Act.(4) The practices and procedures that apply to the Tribunal under this Act (including the Tribunal rules) or a relevant Act will apply to the Magistrates Court in respect of the transferred proceedings unless, and to such extent as, the Court determines otherwise.(5) The Magistrates Court may make the orders, including in relation to the Tribunal, that it considers appropriate to facilitate its determination of the transferred proceedings.
133. Modifications of certain functions, powers and procedures, &c.
[Section 133 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Despite section 132 , the following provisions apply in relation to transferred proceedings:(a) the Magistrates Court is to be constituted as provided by or under the Magistrates Court (Civil Division) Act 1992 instead of as provided by or under another Act;(b) subject to the provisions of a relevant Act and the rules of the Court, a party to the proceedings is entitled to be represented by a legal practitioner or, with leave of the Magistrates Court, by another person, but only in the circumstances that the Tribunal would be permitted to allow if the proceedings were before the Tribunal;(c) the law applicable to reviews of, or appeals against, decisions of the Magistrates Court applies to decisions of the Court in the transferred proceedings instead of Part 10 , but the Court may make an order staying the operation of the relevant decision, including the decision of a relevant decision-maker, until the proceedings are finally decided, on the conditions, if any, specified in the order;(d) the Magistrates Court may make orders giving effect to any settlement reached by the parties even if that settlement was reached before the commencement day or before proceedings were transferred to the Court under this Part.(2) Despite section 132 –(a) the Magistrates Court may award costs in transferred proceedings only in the circumstances that the Tribunal would be permitted to award them; and(b) costs in transferred proceedings are to be assessed in the same way as they would be if the proceedings were before the Tribunal; and(c) the Magistrates Court may direct the Tribunal to determine the costs to be awarded by the Magistrates Court in transferred proceedings and, if so directed, the Tribunal is to determine the costs accordingly and advise the Court of the costs.(3) The Magistrates Court –(a) must not make orders giving effect to any settlement if the settlement appears to the Magistrates Court to be inconsistent with this Act or a relevant Act; and(b) may decline to make orders giving effect to any settlement –(i) on the basis that the settlement may materially prejudice any person who was not represented at a part of proceedings at which the settlement was reached but who has a direct or material interest in the matter; or(ii) if the Magistrates Court considers that the terms of the settlement are inappropriate.
134. Compulsory conferences and alternative dispute resolution
[Section 134 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) Subject to the provisions of a relevant Act, the Magistrates Court may, if the Court considers it is appropriate to do so, require the parties to transferred proceedings to –(a) participate in an alternative dispute resolution process under section 102 ; or(b) attend a compulsory conference conducted under sections 99 and 100 .(2) The Magistrates Court may give to the Tribunal the directions that the Court considers appropriate in relation to the procedures and conduct of the alternative dispute resolution process or compulsory conference.
135. References to Tribunal in other Acts or regulations
[Section 135 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] To avoid doubt, but subject to the regulations –(a) a reference to the Tribunal in a provision, of an Act or regulations under an Act, that confers or imposes a function on the Tribunal is to be read as including a reference to the Magistrates Court, if the function is conferred or imposed on the Court because of the operation of this Part; and(b) a reference to proceedings in the Tribunal in a provision referred to in paragraph (a) is to be read as including a reference to proceedings in the Magistrates Court.
PART 10 - Appeals to Supreme Court[Part 10 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 136 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A party to proceedings, in the General Division, in relation to an Act, other than the Anti-Discrimination Act 1998 , may appeal to the Supreme Court, on a question of law, against any decision of the Tribunal in the proceedings.(2) Any person may appeal to the Supreme Court, on a question of law or fact, against –(a) an order of the Tribunal made in the exercise of its jurisdiction under section 64 of the Land Use Planning and Approvals Act 1993 or section 48 of the Environmental Management and Pollution Control Act 1994 ; or(b) a decision by the Tribunal not to make an order in the exercise of its jurisdiction under section 64 of the Land Use Planning and Approvals Act 1993 or section 48 of the Environmental Management and Pollution Control Act 1994 .(3) Any person may appeal to the Supreme Court, on a question of law or fact, against a decision of the Tribunal to grant, or to refuse to grant, an application for an enforcement order under the Historic Cultural Heritage Act 1995 .(4) Any person may –(a) appeal to the Supreme Court, on a question of law or fact, against –(i) an order of the Tribunal under section 89(1) or (2) of the Anti-Discrimination Act 1998 ; or(ii) an order of the Tribunal under section 95 of the Anti-Discrimination Act 1998 ; or(iii) a decision made under section 99 of the Anti-Discrimination Act 1998 to dismiss a complaint; or(b) appeal to the Supreme Court, on a question of law, against a decision made under section 86(4) of the Anti-Discrimination Act 1998 .(5) A person aggrieved by a determination made under section 28(4) of the Motor Accidents (Liabilities and Compensation) Act 1973 may appeal to the Supreme Court, on a question of law or fact, against the determination and the Supreme Court may on appeal, confirm, vary or rescind the determination.(6) If the Tribunal makes a decision under the Guardianship and Administration Act 1995 or the Disability Services Act 2011 , a person –may appeal, against the decision, to the Supreme Court, on a question of law, as of right, or with the leave of the Supreme Court, on a question of fact.(a) who –(i) appeared, or was entitled to appear, before the Tribunal at a hearing for the purposes of that Act at which the decision was made; or(ii) with the leave of the Tribunal, would have been entitled to appear before the Tribunal at a hearing for the purposes of that Act at which the decision was made; or(b) in respect of whom the decision was made –(7) A party to proceedings of the Tribunal in relation to the Mental Health Act 2013 or the Corrections Act 1997 may appeal to the Supreme Court –against a decision made in those proceedings.(a) on a question of law, as of right; or(b) with the leave of the Supreme Court, on a question of fact –(8) Any person who is aggrieved by a decision, in relation to the Mental Health Act 2013 , of the Tribunal, made otherwise than in proceedings, may appeal, against the decision, to the Supreme Court –(a) on a question of law, as of right; or(b) with the leave of the Supreme Court, on a question of fact.(9) If the Tribunal makes a decision for the purposes of the Powers of Attorney Act 2000 in relation to a power of attorney –may appeal, against the decision, to the Supreme Court, on a question of law, as of right, or, with the leave of the Supreme Court, on a question of fact.(a) a donor of the power of attorney; or(b) an attorney in relation to the power of attorney; or(c) a person who –(i) appeared, or was entitled to appear, before the Tribunal at a hearing for the purposes of that Act in relation to the power of attorney; or(ii) with the leave of the Tribunal, would have been entitled to appear before the Tribunal at a hearing for the purposes of that Act in relation to the power of attorney –(10) Despite any other provision of this section, a person may not appeal to the Supreme Court against a decision that is within a prescribed class of decisions of an interlocutory nature.
[Section 137 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) An appeal under section 136 in relation to a decision is to be instituted, heard and determined in accordance with the rules in force under the Supreme Court Civil Procedure Act 1932 .(2) An appeal under section 136 in relation to a decision is to be instituted –(a) within 30 days after the day on which the decision is made; or(b) if, within the period referred to in paragraph (a) , the person instituting the appeal gives to the Tribunal a written request for a statement of reasons for the decision – within 30 days after the day on which the person is given that statement of reasons.(3) Despite subsection (1) , an appeal in relation to a decision, under the Guardianship and Administration Act 1995 , of the Tribunal that is made in respect of an application for consent to the carrying out of a termination of pregnancy is to be instituted within 2 days after the making of the decision.(4) Despite subsection (1) , 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 the period referred to in that subsection, even if the time for instituting the appeal has expired.
[Section 138 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Supreme Court may, on an appeal under this Part against a decision –(a) affirm the decision appealed against; or(b) vary the decision appealed against; or(c) set aside the decision appealed against and, if it considers fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Court considers appropriate.(2) The Supreme Court may, on an appeal under this Part, make any interim, ancillary or consequential order that the Court considers appropriate.
139. Effect of appeal on decision
[Section 139 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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 Supreme Court may, on the conditions, if any, that are specified in the order, make an order staying the operation of a relevant decision until the proceedings are finally decided.(3) The Supreme Court may act under subsection (2) on application or on its own initiative.
PART 11 - Protection and Immunities[Part 11 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
140. Protections and immunities
[Section 140 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A member of the Tribunal has, in the performance and exercise of the functions and powers of a member of the Tribunal, the same protection and immunities as a judge of the Supreme Court.(2) A member of the staff of the Tribunal and any person acting under the direction of the Tribunal, a member of the Tribunal or a member of the staff of the Tribunal incurs no civil or criminal liability for an act, or omission, done, or omitted to be done, in good faith in performing or exercising, or purportedly performing or exercising, any function or power under this Act or a relevant Act or in the administration or execution, or purported administration or execution, of this Act or a relevant Act.(3) This section does not affect the operation of section 72 of the Public Trustee Act 1930 .(4) 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.(5) A party to proceedings before the Tribunal has the same protection and immunity as a party to proceedings in the Supreme Court.(6) 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.(7) A person who –has, in doing so, the same protections, privileges and immunities as a member of the Tribunal.(a) is taking evidence on behalf of the Tribunal; or(b) is specified by the Tribunal under section 102 as the person presiding over an alternative dispute resolution process and who is presiding over that process under this Act; or(c) is an expert acting for, or providing advice to, the Tribunal –
141. Protection from liability for torts
[Section 141 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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, a member of the staff of the Tribunal 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.
142. Protection for compliance with Act
[Section 142 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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 produces 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.
PART 12 - Miscellaneous[Part 12 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
[Section 143 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](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.
[Section 144 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Tribunal may have a seal.(2) If the Tribunal has a seal –(a) it is to be kept and used as authorised by the Tribunal; and(b) all courts and persons acting judicially must take judicial notice of the imprint of the seal on a document and presume that it was duly sealed by the Tribunal.
[Section 145 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , the regulations may –(a) provide for information to be included in registers to be kept for the purposes of this Act and for persons to be able to view or obtain information to be kept in such registers; and(b) prescribe matters relevant to the practice or procedures of the Tribunal; and(c) prescribe, and provide for the requirement to pay, fees in relation to proceedings before the Tribunal, other than fees in relation to an alternative dispute resolution process or a compulsory conference; and(d) provide for the reduction, refund, or waiver, by a person of fees paid in relation to proceedings before the Tribunal; and(e) prescribe penalties not exceeding 50 penalty units for contravention of, or non-compliance with, any regulation; and(f) make provisions of a savings or transitional nature consequent on the vesting of jurisdiction in the Tribunal under another Act.(3) The regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.(4) The regulations may authorise any matter to be from time to time determined, applied or regulated by a person or body specified in the regulations.(5) Without limiting the generality of subsection (2) , a regulation under subsection (2)(f) may –(a) operate in addition to any savings 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 person or body; 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 regulation).
[Section 146 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Justice; and(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Justice.
PART 13 - Savings and Transitional Provisions[Part 13 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
Division 1 - Abolition of Boards and Tribunals and transition of certain members[Division 1 of Part 13 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
147. Interpretation of Part 13
[Section 147 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] In this Part –current member of a relevant Board or Tribunal means a person who, immediately before the commencement day, held office as –(a) the head of the relevant Board or Tribunal (however described); or(b) a deputy head of the relevant Board or Tribunal (however described); or(c) a member of the relevant Board or Tribunal (however described).
148. Abolition of existing Boards and Tribunals
[Section 148 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] Each relevant Board or Tribunal is abolished on the commencement day.
149. Current members of relevant Board or Tribunal cease to hold office
[Section 149 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A current member of a relevant Board or Tribunal ceases to hold office as such on the commencement day.(2) If a person ceases to hold an office by virtue of subsection (1) , the person is not entitled to any remuneration or compensation because of the loss of that office.(3) Subsection (2) applies despite anything in a relevant Act concerning the circumstances or processes for the removal of the person from, or the vacation of the office of, a person from an office under the relevant Act.
150. Current members to hold office as members of Tribunal
[Section 150 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A current member of a relevant Board or Tribunal referred to in column 1 of the following table becomes, on the commencement day, a member of the Tribunal of the type specified opposite in column 2 of the table.
Column 1 – Member of Board or Tribunal
Column 2 – Tribunal member
1. President of Mental Health Tribunal
Deputy President
2. Deputy President of Mental Health Tribunal
Senior member
3. Member of Mental Health Tribunal
Ordinary member
4. President of Guardianship and Administration Board
Deputy President
5. Deputy President of Guardianship and Administration Board
Senior member
6. Member of Guardianship and Administration Board
Ordinary member
7. Chairperson of Resource Management and Planning Appeal Tribunal
Deputy President
8. Deputy Chairperson of Resource Management and Planning Appeal Tribunal
Senior member
9. Member of Resource Management and Planning Appeal Tribunal
Ordinary member
10. Chief Commissioner of Asbestos Compensation Tribunal
Deputy President
11. Commissioner of Asbestos Compensation Tribunal
Senior member
12. Part-time member of Asbestos Compensation Tribunal
Ordinary member
13. Chief Commissioner of Workers Rehabilitation and Compensation Tribunal
Deputy President
14. Commissioner of Workers Rehabilitation and Compensation Tribunal
Senior member
15. Part-time Commissioner of Workers Rehabilitation and Compensation Tribunal
Ordinary member
16. Chairperson of Anti-Discrimination Tribunal
Deputy President
17. Member of Anti-Discrimination Tribunal
Ordinary member
18. Chairperson of Health Practitioners Tribunal
Deputy President
19. Deputy Chairperson of Health Practitioners Tribunal
Senior member
20. Professional member, or community member, of Health Practitioners Tribunal
Ordinary member
21. Chairman of Motor Accidents Compensation Tribunal
Deputy President
22. Member of Motor Accidents Compensation Tribunal
Ordinary member
23. Chief Chairperson of Forest Practices Tribunal
Senior member
24. Deputy Chief Chairperson of Forest Practices Tribunal
Ordinary member
25. Member of Forest Practices Tribunal
Ordinary member
(2) If a person is a current member of a relevant Board or Tribunal who would, in accordance with the table in subsection (1) , become –(a) both a Deputy President and another member – the person becomes, on the commencement day, a Deputy President; or(b) both a senior member and an ordinary member and paragraph (a) does not apply – the person becomes, on the commencement day, a senior member only.(3) If a current member of a relevant Board or Tribunal was, immediately before the commencement day, a person who is appointed as a current member on the basis that he or she was to perform and exercise the functions and powers of a current member only during the periods, within the person’s term of appointment to that office, determined from time to time by another person, the person is taken to be appointed as a member of the Tribunal on a sessional basis.(4) A current member of a relevant Board or Tribunal who, in accordance with subsection (1) , becomes a member of the Tribunal and who was appointed under the relevant Act for a period is taken to have been appointed to the office until the day on which his or her appointment as a current member of a relevant Board or Tribunal would have, but for the abolition of the Board or Tribunal by this Act, expired.(5) A current member of a relevant Board or Tribunal who, in accordance with subsection (1) , becomes a member of the Tribunal and who was appointed under the relevant Act only in relation to particular proceedings, is taken to have been appointed as a member of the Tribunal only in relation to such proceedings.(6) Nothing in this section is to be taken to prevent a person from ceasing to hold office under this Act in the circumstances in which a member of the Tribunal ceases to hold office under this Act.
151. Remuneration of current member of relevant Board or Tribunal
[Section 151 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) The remuneration, as a member of the Tribunal, of a current member of a relevant Board or Tribunal is to be, for the period for which the person holds office as a member of the Tribunal before the person is reappointed, if at all, as a member of the Tribunal –(a) the same as the remuneration to which the person was entitled, immediately before the commencement day, as a current member of the Board or Tribunal of which the person was a member; or(b) if the person was, immediately before the commencement day, a member of more than one Board or Tribunal under a relevant Act – the same as the highest remuneration, for any one of those offices, to which the person was entitled immediately before the commencement day.(2) Nothing in this section is to be taken to prevent section 5 applying in relation to a person.(3) Nothing in this section is to be taken to prevent the application to a person of a determination of the Governor as to the salary, remuneration or allowances of the person, under a provision of this Act that applies to the person, if the determination does not reduce the salary, remuneration or allowances of the person during the term of office as a member of the Tribunal that the person began under this Part.
Division 2 - Proceedings of former relevant Board or Tribunal[Division 2 of Part 13 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021]
152. Proceedings that were on foot on commencement day
[Section 152 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) This section applies in relation to proceedings before a relevant Board or Tribunal that –(a) were instituted or commenced before the commencement day; and(b) have not been, before that day, finally determined by the relevant Board or Tribunal.(2) If proceedings, before a relevant Board or Tribunal, to which this section applies, had not been heard before the commencement day by the relevant Board or Tribunal, the proceedings are to be taken, on and from the commencement day, to have been instituted or commenced before the Tribunal established under this Act and may be heard and determined instead by that Tribunal.(3) If a relevant Board or Tribunal had, before the commencement day, begun to hear, but had not determined, proceedings, before the relevant Board or Tribunal, to which this section applies –(a) the person or persons constituting the Board or Tribunal for those proceedings are to continue, on and from the commencement day, to hear and determine the matter to which the proceedings relate, sitting as the Tribunal established under this Act; and(b) the Tribunal may have regard to any record of the proceedings before the relevant Board or Tribunal, including a record of any evidence taken in the proceedings before the relevant Board or Tribunal.(4) For the purposes of subsections (2) and (3) , in relation to proceedings to which those subsections relate –(a) the Tribunal established by this Act has and may perform and exercise all the functions and powers that the relevant Board or Tribunal, to which the proceedings related before the commencement day, had immediately before that day; and(b) the provisions of any Act or instrument of a legislative character that would have applied to or in respect of the proceedings, had this Act not commenced on the commencement day, continue to apply.
153. Pending court proceedings in relation to relevant Board or Tribunal may be completed
[Section 153 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) This section applies in relation to proceedings, in a court, on an appeal against, or for the review of, a decision of a relevant Board or Tribunal, if the proceedings –(a) were instituted or commenced before the commencement day; and(b) have not been finally determined before that day by the court.(2) A court, in proceedings to which this section applies, may, on and from the commencement day, continue to deal with the proceedings until they are concluded.(3) For the purposes of proceedings, in a court, referred to in subsection (2) –(a) the court continues to have, and may perform and exercise, all the functions and powers that the court had in relation to the proceedings immediately before the commencement day; and(b) the provisions of any Act or instrument of a legislative character that would have applied to or in respect of the proceedings, had this Act not commenced on the commencement day, continue to apply.(4) Without limiting subsection (3) , if the powers of the court immediately before the commencement day included the power to remit the proceedings to be heard and determined again by a Board or Tribunal in existence immediately before the commencement day, the court may, in determining the proceedings –(a) remit the proceedings to the Tribunal established by this Act; and(b) make the other orders that it considers appropriate to facilitate the remitting of the proceedings to the Tribunal established by this Act.
154. Certain unexercised rights continue
[Section 154 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If a person had, immediately before the commencement day, a right (including a right exercisable only with leave) –but had not, before that day, exercised that right, the person may apply or appeal to the Tribunal established under this Act for the performance and exercise of the same functions and powers that could have been performed or exercised by the relevant Board or Tribunal if that Board or Tribunal had not been abolished.(a) to apply to a relevant Board or Tribunal to make a decision at first instance concerning a matter; or(b) to apply to a relevant Board or Tribunal for a review of a decision of another person or body; or(c) to appeal to a relevant Board or Tribunal against a decision of another person or body –(2) For the purposes of subsection (1) –(a) the Tribunal established by this Act has and may perform and exercise all the functions and powers that the relevant Board or Tribunal would have had in relation to the application or appeal if the application or appeal had been made before the commencement day, including any functions and powers relating to the granting of leave to apply or appeal; and(b) the provisions of any Act or instrument of a legislative character, including provisions concerning the time within which to apply or appeal, that would have applied to or in respect of the proceedings, had this Act not commenced on the commencement day, continue to apply.
155. Allocation of transitional proceedings to Divisions of Tribunal
[Section 155 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] Unless the regulations provide otherwise, the function of determining proceedings, in relation to a relevant Act, that –is allocated to the Division specified in relation to the relevant Act under Schedule 2 or Schedule 3.(a) are permitted or required to be determined by the Tribunal under this Part instead of by a relevant Board or Tribunal that has been abolished under section 148 ; or(b) are remitted by a court under this Part to the Tribunal for reconsideration or redetermination –
156. Saving of orders of relevant Board or Tribunal
[Section 156 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] An order made by a relevant Board or Tribunal before the commencement day, including an order that would have come into effect on or after the commencement day, is, subject to this Part, taken on and from that day to be an order made, by the Tribunal established by this Act, under the provision, of the relevant Act, under which the order was made, or the provision of this Act that corresponds to that provision, as the case may be.
157. Expiration of time periods
[Section 157 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021] If, for any purpose, time had commenced to run under a provision of a relevant Act in relation to a relevant Board or Tribunal before the commencement day, the time expires for the corresponding purpose under that Act (as amended by this Act), or this Act, as the case may be, at the time at which it would have expired if the Board or Tribunal had not been abolished under section 148 .
158. Savings of code of conduct and Mental Health guidelines
[Section 158 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) A code of conduct made under section 68 of this Act, as in force immediately before the commencement day, is to be taken, on and from the commencement day, to have been made under section 94 on the commencement day.(2) Any guidelines made and in effect under section 169 of the Mental Health Act 2013 immediately before the commencement day are to be taken, on and from the commencement day, to be Tribunal guidelines made under that section on the commencement day.
159. Appointments and other matters to facilitate establishment of Tribunal
[Section 159 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If a person was appointed, under section 69(1) of this Act as in force immediately before the commencement day, to an office or other position under this Act before that day –(a) the appointment continues to have effect according to its terms after that day; and(b) if the person was appointed as the Registrar or a Deputy Registrar, the requirements of section 53(4) continue not to apply in relation to the appointment.(2) A person who, under section 69(1) of this Act as in force immediately before the commencement day, was appointed as the President is to be taken to be assigned to be the Division Head of a Division of the Tribunal under this Act until another person is assigned to be the Division Head of the Division of the Tribunal.(3) The requirements of clause 2 of Part 2 of Schedule 2 , and of clause 2 of Part 2 of Schedule 3 , do not apply in relation to a person who is a Division Head in accordance with subsection (2) .
[Section 160 Inserted by No. 17 of 2021, s. 18, Applied:05 Nov 2021](1) If anything done, initiated or commenced under a relevant Act in relation to a relevant Board or Tribunal before the commencement day still has effect, or is not completed, before that day, and the thing could have been done, initiated or commenced under the relevant Act (as amended by this Act) or this Act, if this Act had been in force when the thing was done, initiated or commenced –(a) the thing done continues to have effect; or(b) the thing initiated or commenced may be completed as if it had been done, initiated or commenced under the relevant Act, as amended by this Act, or this Act.(2) Without limiting the generality of subsection (1) , information that was obtained or provided under section 64 of this Act as in force immediately before the commencement day is taken to have been lawfully obtained or provided, as the case may be.(3) This section applies subject to any express provision of this Act in relation to the matter to which this section applies.
SCHEDULE 1 - Relevant Acts
1. The Agricultural and Veterinary Chemicals (Control of Use) Act 1995 .
2. The Anti-Discrimination Act 1998 .
3. The Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 .
4. The Biosecurity Act 2019 .
5. The Building Act 2016 .
6. The Criminal Justice (Mental Impairment) Act 1999 .
7. The Disability Services Act 2011 .
8. The Environmental Management and Pollution Control Act 1994 .
9. The Fire Service Act 1979 .
10. The Forest Practices Act 1985 .
11. [Schedule 1 Amended by No. 17 of 2021, s. 19, Applied:05 Nov 2021] . . . . . . . .
12. The Gas Industry Act 2019 .
13. [Schedule 1 Amended by No. 17 of 2021, s. 19, Applied:05 Nov 2021] The Gas Safety Act 2019 .
14. The Guardianship and Administration Act 1995 .
15. The Health Practitioner Regulation National Law (Tasmania) .
16. The Health Practitioners Tribunal Act 2010 .
17. The Historic Cultural Heritage Act 1995 .
18. The Inland Fisheries Act 1995 .
19. The Land Use Planning and Approvals Act 1993 .
20. The Launceston Flood Risk Management Act 2015 .
21. The Living Marine Resources Management Act 1995 .
22. The Local Government Act 1993 .
23. The Local Government (Highways) Act 1982 .
24. The Marine Farming Planning Act 1995 .
25. The Mental Health Act 2013 .
26. The Motor Accidents (Liabilities and Compensation) Act 1973 .
27. The National Parks and Reserves Management Act 2002 .
28. The Neighbourhood Disputes About Plants Act 2017 .
29. The Pharmacy Control Act 2001 .
30. The Powers of Attorney Act 2000 .
31. The Public Health Act 1997 .
32. The Resource Management and Planning Appeal Tribunal Act 1993 .
33. The Strata Titles Act 1998 .
34. The Theatre Royal Precinct Redevelopment Act 2016 .
35. The Threatened Species Protection Act 1995 .
36. The Urban Drainage Act 2013 .
37. The Water and Sewerage Industry Act 2008 .
38. The Water Management Act 1999 .
39. The Wills Act 2008 .
40. The Workers’ (Occupational Diseases) Relief Fund Act 1954 .
41. The Workers Rehabilitation and Compensation Act 1988 .
SCHEDULE 2 - General Division
Section 3 and section 59
PART 1 - Interpretation
1. DefinitionsIn this Schedule –Division Head means the Division Head of the Division;[Part 1 of Schedule 2 Amended by No. 17 of 2021, s. 20, Applied:05 Nov 2021]health practitioner has the same meaning as in the Health Practitioner Regulation National Law (Tasmania) Act 2010 and includes a student within the meaning of that Law;National Law means the Health Practitioner Regulation National Law (Tasmania);the Division means the General Division of the Tribunal.
PART 2 - Composition of Division
1. Division membersThe Division is to be composed of the following members:(a) the Division Head;(b) the other members that may be assigned to the Division by or under this Act.
2. Appointment of Division HeadThe Minister may not recommend the appointment of a person as the Division Head unless the Minister has consulted, in relation to the appointment, with each Minister to whom the administration of an Act referred to in Part 3 of this Schedule is assigned.
PART 3 - Functions and powers of Division
1. Functions and powers allocated to Division(1) The functions and powers of the Tribunal in relation to the following Acts (or specified provisions of such Acts) are allocated to the Division:(a) the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 ;(b) the Anti-Discrimination Act 1998 ;(c) the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 ;(d) the Biosecurity Act 2019 ;(e) the Building Act 2016 ;(f) the Environmental Management and Pollution Control Act 1994 ;(g) the Fire Service Act 1979 ;(h) the Forest Practices Act 1985 ;(i) [Part 3 of Schedule 2 Amended by No. 17 of 2021, s. 20, Applied:05 Nov 2021] . . . . . . . .(j) the Gas Industry Act 2019 ;(k) [Part 3 of Schedule 2 Amended by No. 17 of 2021, s. 20, Applied:05 Nov 2021] the Gas Safety Act 2019 ;(l) the Health Practitioner Regulation National Law (Tasmania) ;(m) the Health Practitioners Tribunal Act 2010 ;(n) the Historic Cultural Heritage Act 1995 ;(o) the Inland Fisheries Act 1995 ;(p) the Land Use Planning and Approvals Act 1993 ;(q) the Launceston Flood Risk Management Act 2015 ;(r) the Living Marine Resources Management Act 1995 ;(s) the Local Government Act 1993 ;(t) the Local Government (Highways) Act 1982 ;(u) the Marine Farming Planning Act 1995 ;(v) the Motor Accidents (Liabilities and Compensation) Act 1973 ;(w) the National Parks and Reserves Management Act 2002 ;(x) the Neighbourhood Disputes About Plants Act 2017 ;(y) the Pharmacy Control Act 2001 ;(z) the Public Health Act 1997 ;(za) [Part 3 of Schedule 2 Amended by No. 17 of 2021, s. 20, Applied:05 Nov 2021] . . . . . . . .(zb) the Strata Titles Act 1998 ;(zc) the Theatre Royal Precinct Redevelopment Act 2016 ;(zd) the Threatened Species Protection Act 1995 ;(ze) the Urban Drainage Act 2013 ;(zf) the Water and Sewerage Industry Act 2008 ;(zg) the Water Management Act 1999 ;(zh) the Workers’ (Occupational Diseases) Relief Fund Act 1954 ;(zi) the Workers Rehabilitation and Compensation Act 1988 .(2) Subclause (1) extends to functions and powers conferred or imposed on the Tribunal by regulations or instruments made under an Act specified in that subclause.
PART 4 - Anti-Discrimination Stream[Part 4 of Schedule 2 Substituted by No. 17 of 2021, s. 20, Applied:05 Nov 2021]
1. Anti-Discrimination streamThere is a stream of the Division to be known as the Anti-Discrimination stream.
2. Functions and powers allocated to Anti-Discrimination streamThe functions and powers of the Tribunal in relation to the Anti-Discrimination Act 1998 , including functions and powers conferred or imposed on the Tribunal by regulations or instruments made under that Act, are allocated to the Anti-Discrimination stream.
3. Composition of Tribunal in relation to Anti-Discrimination streamIf proceedings relate to the functions or powers of the Tribunal allocated to the Anti-Discrimination stream, the Tribunal is not to be constituted, in whole or in part, in relation to the proceedings other than –(a) by the President; or(b) by one or more Deputy Presidents assigned to the Division; or(c) by a legally qualified member who is assigned to the stream; or(d) by –(i) the President, one or more Deputy Presidents assigned to the Division, or a senior member, or a legally qualified member, who is assigned to the stream; and(ii) one or more other members, each of whom is assigned to the stream and has experience and expertise relevant to the matter to which the proceedings relate.
PART 5 - Health Practitioners Stream[Part 5 of Schedule 2 Inserted by No. 17 of 2021, s. 20, Applied:05 Nov 2021]
1. Health Practitioners streamThere is a stream of the Division to be known as the Health Practitioners stream.
2. Functions and powers allocated to Health Practitioners streamThe functions and powers of the Tribunal in relation to the following Acts, including functions and powers conferred or imposed on the Tribunal by regulations or instruments made under those Acts, are allocated to the Health Practitioners stream:(a) the Health Practitioner Regulation National Law (Tasmania) ;(b) the Health Practitioners Tribunal Act 2010 ;(c) the Pharmacy Control Act 2001 .
3. Composition of Tribunal for health practitioner mattersIf proceedings relate to the functions or powers of the Tribunal allocated to the Health Practitioners stream (other than in relation to the Pharmacy Control Act 2001 ), the Tribunal is not to be constituted, in whole or in part, in relation to the proceedings, other than in accordance with the requirements of the Health Practitioners Tribunal Act 2010 .
PART 6 - Forestry Practices Stream[Part 6 of Schedule 2 Inserted by No. 17 of 2021, s. 20, Applied:05 Nov 2021]
1. Forestry Practices streamThere is a stream of the Division to be known as the Forestry Practices stream.
2. Functions and powers allocated to Forestry Practices streamThe functions and powers of the Tribunal in relation to the Forest Practices Act 1985 , including functions and powers conferred or imposed on the Tribunal by regulations or instruments made under that Act, are allocated to the Forestry Practices stream.
3. Composition of Tribunal in relation to Forestry Practices stream(1) If proceedings relate to the functions or powers of the Tribunal allocated to the Forestry Practices stream, the Tribunal is not, unless subclause (2) applies, to be constituted, in whole or in part, in relation to the proceedings, other than by 3 members, of whom –(a) one is the President, a Deputy President assigned to the Division or a legally qualified member who is assigned to the stream; and(b) one is a member who is assigned to the stream and who possesses a sound and practical knowledge of forestry, road construction in forests and harvesting of timber; and(c) one is a member who –(i) is assigned to the stream; and(ii) possesses tertiary qualifications in the sciences appropriate to land and forest management and has had substantial practical experience in those sciences.(2) If proceedings relate to an appeal under section 25 of the Forest Practices Act 1985 and involve any question relating to the protection of threatened species of flora or fauna or the protection of threatened native vegetation communities from clearance and conversion, the Tribunal is not to be constituted, in whole or in part, in relation to the proceedings unless it is constituted by 3 members, of whom –(a) one is the President, a Deputy President assigned to the Division or a legally qualified member who is assigned to the Forestry Practices stream; and(b) one is a member who –(i) is assigned to the Forestry Practices stream; and(ii) possesses a sound knowledge of, and has at least 5 years practical experience in, agriculture and forestry; and(iii) has nominated to be a member in response to a notice by the Minister, in 2 newspapers published in, and circulating generally in, the State, calling for expressions of interest from persons who seek to be appointed as a member of the Tribunal; and(iv) is approved by the Minister; and(c) one is a member who –(i) is assigned to the Forestry Practices stream; and(ii) possesses a sound knowledge of, and has at least 5 years’ practical experience in, conservation science; and(iii) is nominated for membership by the Minister administering the Nature Conservation Act 2002 .
PART 7 - Personal Compensation Stream[Part 7 of Schedule 2 Inserted by No. 17 of 2021, s. 20, Applied:05 Nov 2021]
1. Personal Compensation streamThere is a stream of the Division to be known as the Personal Compensation stream.
2. Functions and powers allocated to Personal Compensation streamThe functions and powers of the Tribunal in relation to the following Acts, including functions and powers conferred or imposed on the Tribunal by regulations or instruments made under those Acts, are allocated to the Personal Compensation stream:(a) the Asbestos-Related Diseases (Occupational Exposure) Compensation Act 2011 ;(b) the Motor Accidents (Liabilities and Compensation) Act 1973 ;(c) the Workers’ (Occupational Diseases) Relief Fund Act 1954;(d) the Workers Rehabilitation and Compensation Act 1988 .
3. Composition of Tribunal in relation to Personal Compensation streamIf proceedings relate to the functions or powers of the Tribunal allocated to the Personal Compensation stream, the Tribunal is not to be constituted, in whole or in part, in relation to the proceedings other than –(a) by the President; or(b) by one or more Deputy Presidents assigned to the Division; or(c) by a legally qualified member who is assigned to the stream; or(d) by –(i) the President, one or more persons who are Deputy Presidents assigned to the Division or a legally qualified member who is assigned to the stream; and(ii) one or more members who are assigned to the stream.
4. Withdrawal of proceedings(1) A party to proceedings in the Personal Compensation stream may withdraw the proceedings by giving notice in writing to –(a) the Tribunal; and(b) each other party to the proceedings.(2) Section 88(2) does not apply in relation to the withdrawal of proceedings in the Personal Compensation stream.
PART 8 - Resource and Planning Stream[Part 8 of Schedule 2 Inserted by No. 17 of 2021, s. 20, Applied:05 Nov 2021]
1. Interpretation of Part 8In this Part –appeal means –(a) an appeal to the Tribunal under a Resource and Planning stream Act; and(b) an application, under a Resource and Planning stream Act, for review by the Tribunal of a reviewable decision;application means an application to the Tribunal, under a Resource and Planning stream Act, for the Tribunal to exercise its original jurisdiction and includes any other means by which a matter, under a Resource and Planning stream Act, is brought before the Tribunal in its original jurisdiction;Resource and Planning stream Act means a relevant Act in relation to which powers or functions are allocated to the Resource and Planning stream under clause 3 ;Resource and Planning stream proceedings means proceedings of the Tribunal for the purposes of a Resource and Planning stream Act.
2. Resource and Planning streamThere is a stream of the Division to be known as the Resource and Planning stream.
3. Functions and powers allocated to Resource and Planning streamThe functions and powers of the Tribunal in relation to the following Acts, including functions and powers conferred or imposed on the Tribunal by regulations or instruments made under those Acts, are allocated to the Resource and Planning stream:(a) the Agricultural and Veterinary Chemicals (Control of Use) Act 1995 ;(b) the Biosecurity Act 2019 ;(c) the Building Act 2016 ;(d) the Environmental Management and Pollution Control Act 1994 ;(e) the Fire Service Act 1979 ;(f) the Gas Industry Act 2019 ;(g) the Gas Safety Act 2019 ;(h) the Historic Cultural Heritage Act 1995 ;(i) the Inland Fisheries Act 1995 ;(j) the Land Use Planning and Approvals Act 1993 ;(k) the Launceston Flood Risk Management Act 2015 ;(l) the Living Marine Resources Management Act 1995 ;(m) the Local Government Act 1993 ;(n) the Local Government (Highways) Act 1982 ;(o) the Marine Farming Planning Act 1995 ;(p) the National Parks and Reserves Management Act 2002 ;(q) the Neighbourhood Disputes About Plants Act 2017 ;(r) the Public Health Act 1997 ;(s) the Strata Titles Act 1998 ;(t) the Theatre Royal Precinct Redevelopment Act 2016 ;(u) the Threatened Species Protection Act 1995 ;(v) the Urban Drainage Act 2013 ;(w) the Water and Sewerage Industry Act 2008 ;(x) the Water Management Act 1999 .
4. Composition of Tribunal in relation to Resource and Planning stream(1) If proceedings relate to the functions or powers of the Tribunal allocated to the Resource and Planning stream, the Tribunal is not to be constituted, in whole or in part, in relation to the proceedings by a person or persons other than –(a) a legally qualified member who is assigned to the stream; or(b) a legally qualified member who is assigned to the stream and not more than 4 other members, each of whom is assigned to the stream and is either a legally qualified member or has expertise in the subject matter to which the proceedings relate, which may include any of the following matters:(i) planning resource economics;(ii) science;(iii) engineering;(iv) medicine;(v) environmental management;(vi) industry process operations;(vii) building;(viii) architecture;(ix) building surveying;(x) plumbing;(xi) local government;(xii) disability access to buildings;(xiii) environmental and public health.(2) In determining for the purposes of this clause the members who are to constitute the Tribunal in relation to proceedings in the Resource and Planning stream, the President is to have regard to –(a) the nature of the issues likely to be involved in the proceedings; and(b) the particular expertise of each proposed member; and(c) the degree of public importance or complexity of the matters to which the proceedings relate; and(d) the need for the Tribunal’s affairs to be conducted expeditiously and efficiently.
5. Tribunal to be part of State’s resource management and planning system in relation to Resource and Planning stream proceedingsThe Tribunal is, in relation to Resource and Planning stream proceedings, part of the State’s resource management and planning system, the objectives of which are set out in Schedule 1 to the Land Use Planning and Approvals Act 1993 .
6. Institution of Resource and Planning stream proceedings(1) Unless otherwise required under a Resource and Planning stream Act, an appeal must be instituted –(a) in writing; and(b) within 14 days after the making of the decision which is appealed against.(2) The Tribunal may, on written application by a person, extend the time for the institution by the person of an appeal.(3) The Tribunal, when considering whether to extend the time for instituting an appeal under section 61 of the Land Use Planning and Approvals Act 1993 , must take into account –(a) the reason why the appeal was not lodged within the period specified in subclause (1) ; and(b) the time which has elapsed since the end of the period specified in subclause (1) and whether it would be reasonable to expect that the application to extend the appeal could have been lodged before the date on which it was lodged; and(c) the extent and cost of any work which has been undertaken in accordance with a permit, referred to in the Land Use Planning and Approvals Act 1993 , after the expiry of the period specified in subclause (1) ; and(d) any other matter that it considers appropriate.(4) The time for instituting an appeal may be extended even though the time has ended.(5) The Tribunal must cause written notice of an appeal to be given to the person who made the decision which is appealed against.(6) Section 88(2) does not apply in relation to Resource and Planning stream proceedings.(7) If a party to an appeal withdraws under section 88 the proceedings in relation to the appeal, the Tribunal is to notify each other party to the proceedings.
7. Parties to Resource and Planning stream proceedings(1) Subject to clause 9(5)(b) , the parties to proceedings in relation to an appeal are –(a) the appellant; and(b) the person who made the decision which is appealed against; and(c) the person, to whose application the appeal relates, or a person whose initial action gave rise to the decision which is appealed against; and(d) any other person who has been made, by the Appeal Tribunal on application by the person under subclause (3) , a party to the appeal; and(e) any other person who is, under a relevant Act, a party to the appeal.(2) For the purposes of subclause (1)(b) , the Board of the Environment Protection Authority and a planning authority are taken to be persons who made the decision which is appealed against, in the case of an appeal against –(a) a condition or restriction required by the Board, under section 25(5)(a) of the Environmental Management and Pollution Control Act 1994 , to be contained in a permit granted by the planning authority; or(b) a direction by the Board, under section 25(5)(b) or 27AC(2)(a) of that Act, to the planning authority to refuse to grant a permit.(3) If an appeal has been instituted by a person, any other person whose interests are affected by the decision which is appealed against may, subject to subclauses (4) and (5) , apply in writing to the Tribunal to be made a party to the appeal and the Tribunal may, by order, make the person a party to the appeal.(4) The Tribunal may not, under subclause (3) , make a person a party to an appeal against a decision –(a) in respect of the granting of a permit under section 57 of the Land Use Planning and Approvals Act 1993 unless –(i) the person made a representation under section 57(5) of that Act in respect of the application for the permit; or(ii) the Tribunal considers that the person has a proper interest in the subject matter of the appeal and that it is not reasonable to expect the person to have made a representation in respect of the application for the permit; or(b) in respect of the granting of a permit under section 58 of the Land Use Planning and Approvals Act 1993 , unless the Tribunal considers that the person has a proper interest in the subject matter of the appeal.(5) The Tribunal may not, under subclause (3) , make a person a party to an appeal against a decision to issue an environment protection notice under section 27(6) of the Environmental Management and Pollution Control Act 1994 in respect of an activity unless –(a) the person made a representation in respect of the activity during the assessment by the Board of the Environment Protection Authority of the activity; or(b) the Tribunal considers that the person has a proper interest in the subject matter of the appeal and that it is not reasonable to expect the person to have made a representation in respect of the activity.(6) If a person referred to in subclause (4) or (5) has been made a party to an appeal, the person is not entitled to present arguments at the hearing of the appeal in respect of any matters that are not related to the conditions or restrictions –(a) which are specified in a permit or an environment protection notice referred to in subclause (4) or (5) ; and(b) which have been appealed against by a person who lodged an appeal under section 61 of the Land Use Planning and Approvals Act 1993 .(7) Sections 95 and 96 and section 98 do not apply in relation to Resource and Planning stream proceedings in relation to an appeal.
8. Representation(1) Despite section 98(1)(c) , a party to Resource and Planning stream proceedings in relation to an appeal or an application is entitled, without the leave of the Tribunal and despite the Tribunal rules, to be represented by another representative.(2) Despite section 98 , the Tribunal may, in exceptional circumstances, refuse to allow a party to the appeal or an application to be represented if the Tribunal is satisfied that another party to the appeal or the application would be significantly disadvantaged by that representation.
9. Procedure in Resource and Planning stream proceedings(1) Subject to a relevant Act that applies in relation to the appeal or application, the Tribunal must hear and determine the appeal or application within 90 days after it is instituted or within a further period extended under subclause (2) .(2) The Minister may, by notice in writing given to the President, extend the period of 90 days referred to in subclause (1) , if the Minister is of the opinion that the interests of justice so require.(3) The extension by the Minister under subclause (2) of the period of 90 days referred to in subclause (1) is not necessary if all parties agree in writing to the extension of that period.(4) Subject to any determination by the Tribunal that evidence may be given in private, the Appeal Tribunal must ensure that every party to an appeal, or an application, before the Tribunal is given a reasonable opportunity to present the party's case and, in particular, to –(a) inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the appeal or the application and(b) make submissions in relation to the documents.(5) If a party to proceedings in relation to an appeal or an application who has had reasonable notice of the appeal or the application fails either to appear at a compulsory conference or an alternative dispute resolution process in relation to the appeal or at the hearing of the appeal or the application, the Tribunal may –(a) if the only other party to the appeal is the person who made the decision – dismiss the appeal or the application; or(b) direct that the person who failed to appear is to cease to be a party to the appeal or the application; or(c) make any other order as it considers necessary.(6) If a person appeals or makes an application, or purports to appeal or to make an application, to the Tribunal and it appears to the Tribunal that –the Tribunal may excuse the failure by ordering that, subject to the conditions determined by the Tribunal, the requirement be dispensed with to the necessary extent.(a) a failure to comply with a requirement of this Act or of another Act or law affects the appeal or application or purported appeal or application, or decision or purported decision, against which the appeal or application or purported appeal or application has been brought; and(b) it would not be unjust or inequitable to exercise the powers conferred by this subsection –(7) If a person appeals, or makes an application, to the Tribunal and it appears to the Tribunal that –the Tribunal may, by order, amend the relevant application accordingly.(a) the appeal or application relates to an application (the relevant application) made, by one party to the proceedings in relation to the appeal or application, to another party to the proceedings; and(b) the appeal or application could be resolved in a manner that is fair to all parties if certain modifications to the relevant application were made; and(c) it would be conducive to the expeditious administration of justice if the powers conferred by this subsection were exercised –(8) In addition to its other powers under this Act to dismiss an appeal or application, the Tribunal may dismiss an appeal or application if the appellant or applicant fails to comply with its directions.
10. Determination of appeal and application(1) The Tribunal must notify –(a) each party to an appeal of the Tribunal’s decision under section 78 in relation to the appeal, as soon as practicable after making the decision; and(b) each party to an application of the Tribunal’s decision under section 73 in relation to the application, as soon as practicable after making the decision.(2) A decision of the Tribunal in relation to an appeal or application comes into effect at the expiration of the period of 10 days after the day on which the decision is made or, if a later day is specified in the decision, that day.(3) The Tribunal may amend its decision on an appeal or application if it is satisfied that the amendment –(a) does not change the effect of any condition required by the Tribunal; and(b) will not cause an increase in detriment to any person.(4) The Tribunal's decision in relation to an appeal must be given effect to by the person who is responsible for giving effect to the decision that gave rise to the appeal.
11. Reasons to be given(1) The Tribunal must give written reasons for its decision in relation to an appeal or application.(2) The reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.(3) The Tribunal must cause a written copy of its reasons to be given to each party to the appeal or application.
12. Costs(1) Subject to this clause, each party to proceedings in relation to an appeal or application is to pay its own costs.(2) The Tribunal may, under this clause, order a party to proceedings in relation to an appeal or application to pay all or part of the costs of another party to the proceedings if the Tribunal is satisfied that it is fair and reasonable to do so.(3) For the purposes of subclause (2) , the Tribunal may take into account any of the following matters:(a) whether the proceedings appear to the Tribunal to have been instituted merely to delay or obstruct;(b) whether in the Tribunal's opinion a party has raised frivolous or vexatious issues;(c) the relative merits of the claims made by each of the parties;(d) whether in the Tribunal's opinion a party has unnecessarily or unreasonably prolonged the proceedings or increased the costs of them;(e) whether a party has failed, without reasonable excuse, to comply with a direction or order of the Tribunal;(f) whether a party has failed to comply with any relevant law or planning scheme, within the meaning of the Land Use Planning and Approvals Act 1993 ;(g) the nature, complexity and outcome of the proceedings;(h) the capacity of the parties to meet an order for costs;(i) any other matter that the Tribunal considers relevant.(4) If the Tribunal makes an order for costs under this clause it –(a) is to specify the time within which those costs are to be paid; and(b) may, by a further order, extend the time if it considers it reasonable in the circumstances.(5) If the Tribunal makes an order for costs under this clause before the end of any proceedings, it may require that the order be complied with before it continues with the proceedings.(6) An order for costs under this clause may be registered in a court having jurisdiction for the recovery of debts of the amount ordered to be paid by or under the order.(7) Proceedings for the enforcement of an order for costs under this clause may be taken as if the order were a judgment of the court in which the order is registered.(8) Division 10 of Part 8 of this Act and section 126(2) do not apply in relation to an appeal or application.
13. Refusal to answer question or produce document(1) Despite sections 105 and 106 , a person is not excused from answering a question or producing a document in Resource and Planning stream proceedings on the ground that the answer to the question or the production of the document might tend to incriminate the person.(2) If a person claims, before answering a question or producing a document in Resource and Planning stream proceedings, that the answer to the question or the production of the document might tend to incriminate the person, the answer or document is not admissible in evidence against the person in criminal proceedings other than proceedings under section 104(4)(e) , or in other proceedings, in respect of the falsity of the answer or document.(3) A member, or a member of the staff of the Tribunal, is not required to give evidence to a court, tribunal or person having power to require the production of documents or the answering of questions, if the giving of the evidence was in relation to a hearing in Resource and Planning stream proceedings that were conducted in private in accordance with a direction under this Act or a relevant Act.
SCHEDULE 3 - Protective Division
Section 3 and section 59
PART 1 - Interpretation
1. DefinitionsIn this Schedule –Division function or power means a function or power of the Tribunal that is allocated to the Division by this Schedule;Division Head means the Division Head of the Division;the Division means the Protective Division of the Tribunal.
PART 2 - Composition of Division
1. Division membersThe Division is to be composed of the following members:(a) the Division Head;(b) the other members that may be assigned to the Division by or under this Act.
2. Appointment of Division HeadThe Minister may not recommend the appointment of a person as the Division Head unless the Minister has consulted, in relation to the appointment, with the Ministers to whom the administration of the Guardianship and Administration Act 1995 and the Mental Health Act 2013 are assigned.
PART 3 - Functions and powers of Division
1. Functions and powers allocated to Division(1) The functions and powers of the Tribunal in relation to the following Acts are allocated to the Division:(aa) [Part 3 of Schedule 3 Amended by No. 17 of 2021, s. 21, Applied:05 Nov 2021] the Corrections Act 1997 ;(a) the Criminal Justice (Mental Impairment) Act 1999 ;(b) the Disability Services Act 2011 ;(c) the Guardianship and Administration Act 1995 ;(d) the Mental Health Act 2013 ;(e) the Powers of Attorney Act 2000 ;(f) the Wills Act 2008 .(2) Subclause (1) extends to functions and powers conferred or imposed on the Tribunal by regulations or instruments made under an Act specified in that subclause.
PART 4 - Guardianship Stream[Part 4 of Schedule 3 Substituted by No. 17 of 2021, s. 21, Applied:05 Nov 2021]
1. Interpretation of Part 4In this Part –administration order has the same meaning as in the Guardianship and Administration Act 1995 ;administrator has the same meaning as in the Guardianship and Administration Act 1995 ;government department means a Government department within the meaning of the State Service Act 2000 ;guardian has the same meaning as in the Guardianship and Administration Act 1995 ;guardianship order has the same meaning as in the Guardianship and Administration Act 1995 ;Guardianship stream Act means a relevant Act in relation to which powers or functions are allocated under clause 3 in relation to the Guardianship stream;Guardianship stream proceedings means proceedings of the Tribunal for the purposes of a Guardianship stream Act;hearing means a hearing in Guardianship stream proceedings;medical or dental treatment has the same meaning as in the Guardianship and Administration Act 1995 ;Public Guardian has the same meaning as in the Guardianship and Administration Act 1995 ;restrictive intervention has the same meaning as in the Disability Services Act 2011 ;service provider includes a financial institution, or person, with whom a proposed represented person has deposited money or on whose account money has been deposited;State authority means a body or authority, whether incorporated or not, which is established or constituted by or under an Act or under the royal prerogative, where the body or authority or its governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister or another such body or authority.
2. Guardianship streamThere is a stream of the Division to be known as the Guardianship stream.
3. Functions and powers allocated to Guardianship streamsThe functions and powers of the Tribunal in relation to the following Acts, including functions and powers conferred or imposed on the Tribunal by regulations or instruments made under any of the following Acts, are allocated to the Guardianship stream:(a) the Disability Services Act 2011 ;(b) the Guardianship and Administration Act 1995 ;(c) the Powers of Attorney Act 2000 ;(d) the Wills Act 2008 .
4. Composition of Tribunal in relation to streamIf proceedings relate to the functions or powers of the Tribunal allocated to the Guardianship stream, the Tribunal is not to be constituted, in whole or in part, in relation to the proceedings other than –(a) by the President; or(b) by one or more Deputy Presidents assigned to the Division; or(c) by a legally qualified member who is assigned to the stream; or(d) by –(i) the President, one or more Deputy Presidents assigned to the Division, or a legally qualified member who is assigned to the stream; and(ii) one or more members who are assigned to the stream.
5. Hearings in relation to Guardianship stream proceedings(1) The Tribunal, within 45 days after the day on which an application is received by the Tribunal under a provision of a Guardianship stream Act, must, if that Act requires a hearing under this Act to be held in relation to such an application, commence the hearing of the application.(2) The Tribunal must, as soon as practicable after receiving an application in relation to which, under a provision of a Guardianship stream Act, a hearing is required to be held, and in any case not less than 10 days before a hearing by the Tribunal in relation to an application under a Guardianship stream Act, give notice of the hearing to –(a) the applicant; and(b) the person in respect of whom the hearing is to be held; and(c) the Public Guardian; and(d) if the person has a guardian, the guardian; and(e) if the person has an administrator in respect of his or her estate, the administrator; and(f) if the matter relates to –(i) the provision of medical or dental treatment – the registered practitioner, within the meaning of the Guardianship and Administration Act 1995 , proposing to carry out the treatment; or(ii) a restrictive intervention – the disability services provider, or funded private person, each within the meaning of the Disability Services Act 2011 , to whom the approval to which the application relates was granted; and(g) any other person who the Tribunal is satisfied has a proper interest in the matter.(3) A notice under subclause (2) in relation to a hearing is to specify –(a) the time and place of the hearing; and(b) the nature of the proceedings; and(c) the kinds of orders that may be made by the Tribunal in relation to the Guardianship stream proceedings to which the hearing relates; and(d) in the case of a notice given under subclause (2)(a) or (b) , the entitlement of that person to representation before the Tribunal.(4) A notice that is required under subclause (2) to be given to a person is to be given by sending the notice by post to that person at the person's usual or last known place of residence or business or by another method that the Tribunal considers appropriate.(5) The Tribunal is not obliged to give notice of a hearing –(a) to a person whose whereabouts cannot after reasonable inquiries be ascertained; or(b) if the matter relates to –and the Tribunal considers it proper to dispense with notice of the hearing by reason of urgency.(i) the provision of medical or dental treatment; or(ii) a restrictive intervention –(6) A hearing or determination of the Tribunal in Guardianship stream proceedings is not invalidated or affected by reason only of –(a) the hearing or determination not being held or made within the time required by this Act; or(b) a failure to give notice to a person other than the person in respect of whom the hearing was held.
6. Dismissal, &c., of application(1) Without limiting the application of section 89 or 90 to the Tribunal, the Tribunal may dismiss or strike out an application under a Guardianship stream Act at any stage of proceedings in relation to the application if the Tribunal is of the opinion that –(a) the subject matter has already been dealt with by the Tribunal; and(b) there has been no subsequent change to any material fact.(2) If the Tribunal, under subclause (1) or section 89 or 90 , dismisses or strikes out an application under a Guardianship stream Act, the applicant may apply for a review of that decision by the Tribunal.(3) An application for a review under subclause (2) must be –(a) in writing; and(b) lodged within 14 days after the applicant is notified of the decision to reject the initial application.(4) A decision of the Tribunal made pursuant to an application under subclause (2) is not reviewable under this section.(5) The Tribunal, as constituted for the purposes of a review under subclause (2) , is to be constituted by 3 members of the Tribunal –(a) each of whom is assigned to the Guardianship stream; and(b) none of whom was involved in the decision to reject the initial application.
7. Appearance at hearing in Guardianship proceedings(1) At a hearing of the Tribunal in Guardianship stream proceedings, the applicant, the Public Guardian and the person in respect of whom the hearing is held may –(a) appear before the Tribunal in person and be heard; or(b) be represented before the Tribunal by any person authorised to that effect by the applicant, the Public Guardian, or the person in respect of whom the hearing is held, respectively, irrespective of the requirements of section 98(1)(c) that the representation occur with the leave of the Tribunal or be subject to the Tribunal rules.(2) At a hearing of the Tribunal in Guardianship stream proceedings –(a) a person not referred to in subclause (1) who is given notice of the hearing may –(i) appear before the Tribunal in person and be heard; or(ii) by leave of the Tribunal, be represented before the Tribunal by any person authorised to that effect by the first-mentioned person; and(b) any other person who wishes to be heard and whom the Tribunal agrees to hear may appear before the Tribunal in person and be heard.(3) If, in any hearing in Guardianship stream proceedings, the person in respect of whom the hearing is held is not represented before the Tribunal, the Tribunal may appoint a person to represent that person.(4) Section 98 applies, subject to subclause (1)(b) , in relation to a hearing in Guardianship stream proceedings.
8. Interim order on adjournment(1) If the Tribunal adjourns a hearing of an application in Guardianship stream proceedings and it considers that there may be grounds for making, in respect of a person, a guardianship order or administration order or a further guardianship order or further administration order, the Tribunal may –(a) make an interim order appointing, as the case may be, the Public Guardian as the person's guardian or The Public Trustee as the administrator of the person's estate; and(b) make or give any related orders or directions that it considers appropriate in the circumstances.(2) An interim order has effect for the period of the adjournment and any subsequent adjournment.(3) This clause does not prevent the Tribunal from varying or revoking an interim order or from making a further interim order on any subsequent adjournment.
9. Statement of reasons(1) A party to Guardianship stream proceedings, or a person aggrieved by a determination of the Tribunal in Guardianship stream proceedings, may, by notice in writing given to the Tribunal within 21 days after the making of the determination, request the Tribunal to give to the party or person a statement in writing of reasons for the determination.(2) The Tribunal must, as soon as practicable but in any case within 21 days after receiving a request under subclause (1) from a party or person, prepare and give a statement of reasons to the party or person.
10. Permission to publish report about Guardianship stream proceedings(1) If the Tribunal considers that it is in the public interest to do so, the Tribunal may determine that a person may publish, or cause to be published in accordance with its determination, a report of any Guardianship stream proceedings.(2) A person does not commit an offence against section 123(1) by publishing, or causing to be published, in accordance with a determination under subclause (1) a report of any Guardianship stream proceedings.
PART 5 - Mental Health Stream[Part 5 of Schedule 3 Inserted by No. 17 of 2021, s. 21, Applied:05 Nov 2021]
1. Mental Health streamThere is a stream of the Division to be known as the Mental Health stream.
2. Functions and powers allocated to Mental Health streamThe functions and powers of the Tribunal in relation to the following Acts, including functions and powers conferred or imposed on the Tribunal by regulations or instruments made under any of the following Acts, are allocated to the Mental Health stream:(a) the Corrections Act 1997 ;(b) the Criminal Justice (Mental Impairment) Act 1999 ;(c) the Mental Health Act 2013 .
3. Composition of Tribunal in relation to Mental Health stream(1) Subject to subclause (2) , if proceedings relate to the functions or powers of the Tribunal allocated to the Mental Health stream, the Tribunal is not to be constituted, in whole or in part, in relation to the proceedings other than –(a) by the President; or(b) by one or more Deputy Presidents assigned to the Division; or(c) by a legally qualified member who is assigned to the stream; or(d) by –(i) the President, one or more Deputy Presidents assigned to the Division or a legally qualified member who is assigned to the stream; and(ii) one or more members who are assigned to the stream.(2) If proceedings relate to the functions or powers of the Tribunal allocated to the Mental Health stream and the Tribunal is to be constituted by 3 or more members –(a) one of the members is to be a psychiatrist and one of the members is to be a legally qualified member who is assigned to the stream; and(b) the person presiding is to be –(i) the President; or(ii) a Deputy President assigned to the Division; or(iii) a legally qualified member who is assigned to the stream or, if more than one of the members constituting the Tribunal are legally qualified members, the legally qualified member nominated by the President.