Does not include amendments by— (not commenced) Passenger Transport Act 2014 No 46(not commenced) Security Industry Amendment (Private Investigators) Act 2016 No 40(not commenced) Fair Trading Amendment (Commercial Agents) Act 2016 No 52
(1) In this Act— administrative review application ,administrative review decision ,administrative review jurisdiction ,administratively reviewable decision andadministrator —see section 30.ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including—
(a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. appeal jurisdiction of the Tribunal—see section 28(2)(c).Appeal Panel means an Appeal Panel of the Tribunal.appealable external decision —see section 31.application to the Tribunal—see section 39.authorised official —see section 75.civil penalty means a monetary or pecuniary penalty that is imposed on a person (except as punishment for an offence) for a contravention of either a provision of legislation or an order or other decision of a person or body.civil penalty provision of this Act—see section 77.decision —see section 5.decision-maker —see section 6.Deputy President means a Deputy President of the Tribunal.Division of the Tribunal means a Division of the Tribunal specified in section 16(1).Division Head of a Division of the Tribunal means the member who is appointed by or under this Act as the Division Head of that Division.Division List means a list established by or under this Act for the management of a class of proceedings allocated to a Division of the Tribunal.Division member , in relation to a Division of the Tribunal, means a member who is assigned by or under this Act to that Division.Division Schedule for a Division of the Tribunal—see section 17.enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that—
(a) provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters. enforcement jurisdiction —see section 33.establishment day —see section 7.external appeal andexternal appeal jurisdiction —see section 31.external decision-maker means a decision-maker who is external to the Tribunal.function includes a power, authority or duty, andexercise a function includes perform a duty.general application ,general decision andgeneral jurisdiction —see section 29.general member means a general member of the Tribunal.interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following—
(a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. internal appeal ,internal appeal jurisdiction andinternally appealable decision —see section 32.legislation means an Act or a statutory rule.List Manager for a Division of the Tribunal—see section 19.member means a member of the Tribunal.non-presidential member —see section 9(3).NSW judicial officer means any of the following—
(a) a Magistrate, (b) a Judge of the District Court, (c) (d) a Judge of the Land and Environment Court, (e) a Judge of the Supreme Court. occasional member —see section 9(5).President means the President of the Tribunal.presidential member —see section 9(2).principal member means a principal member of the Tribunal.principal registrar means the person employed in the Public Service as the principal registrar of the Tribunal.procedural rules means each of the following—
(a) the Tribunal rules, (b) the regulations in their application to the practice and procedure of the Tribunal. Note— Section 25(5) provides that in the event of an inconsistency between a provision of the regulations and a provision of the Tribunal rules, the provision of the regulations prevails to the extent of the inconsistency. registrar means the principal registrar or any other person employed in the Public Service as a registrar of the Tribunal.resolution process —see section 37.Rule Committee means the Rule Committee of the Tribunal.senior member means a senior member of the Tribunal.term member —see section 9(4).the Tribunal orNCAT means the Civil and Administrative Tribunal of New South Wales established by this Act.Tribunal rules means the rules of the Tribunal made by the Rule Committee.Note— The contains definitions and other provisions that affect the interpretation and application of this Act. Interpretation Act 1987 (2) A reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation.
(1) A person may be appointed to any office or other position under this Act before the establishment day. (2) Without limiting subsection (1), the following appointments may be made before the establishment day—
(a) appointment as the President or as any other kind of member, (b) appointment as a Division Head of a Division of the Tribunal that will be created on the establishment of the Tribunal, (c) appointment as a List Manager of a Division of the Tribunal that will be created on the establishment of the Tribunal, (d) appointment as a member of the Rule Committee, (e) appointment as a registrar (including as the principal registrar) or other member of staff of the Tribunal.
(1) The President may, by written instrument, appoint a person to be an occasional member in relation to particular proceedings before the Tribunal if—
(a) the person is qualified to be appointed as a member of the kind concerned, and (b) the President is satisfied that the appointment of the person as a member is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings. Note— Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications. (2) Without limiting clause 12 of Schedule 2, the President may delegate the function of appointing occasional members to sit as Division members for a Division of the Tribunal to the Division Head of the Division or a List Manager of a Division of the Tribunal.
(1) Classes of NSW judicial officers who may act as members may be prescribed Any NSW judicial officer who belongs to a class of NSW judicial officer prescribed by the regulations for the purposes of this section is taken to have been duly appointed to act as a member of the Tribunal in relation to such matters within the jurisdiction of the Tribunal as are prescribed by the regulations.
(1) On the establishment of the Tribunal, there are to be the following Divisions of the Tribunal—
(a) the Administrative and Equal Opportunity Division, (b) the Consumer and Commercial Division, (c) the Occupational Division, (d) the Guardianship Division. (e) (2) The functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are to be exercised in that Division. Note— Section 4(2) provides that a reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation.
(1) The Division Schedule for a Division of the Tribunal is the Schedule to this Act that provides for the composition and functions of that Division.(2) Without limiting subsection (1), a Division Schedule for a Division of the Tribunal may include provisions about the following matters—
(a) the qualifications and procedure for the appointment of a Division Head of the Division, (b) the qualifications and procedure for the assignment of other Division members, (c) the allocation to the Division of functions of the Tribunal in relation to enabling legislation, (d) the use of Division Lists in the Division and the qualifications and procedure for the appointment of, and the functions of, List Managers for the Division, (e) special requirements for the constitution of the Tribunal when exercising functions of the Tribunal allocated to 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, (g) the functions of registrars in relation to proceedings in the Division, (h) special requirements regarding appeals from decisions made by the Tribunal or a registrar in the Division (including whether appeals lie to an Appeal Panel or court and the constitution and functions of an Appeal Panel or court on any such appeal).
(1) The President, or the Division Head of a Division of the Tribunal (subject to any direction of the President), may establish one or more Division Lists for a Division of the Tribunal in which proceedings allocated to the Division are to be entered for the purpose of managing those proceedings.
(1) A registrar has such functions as may be conferred or imposed on the registrar by or under this Act or any other legislation or law. (2) The principal registrar has the following additional functions—
(a) to assist the President in managing the business and the affairs of the Tribunal, (b) such administrative and other functions as may be conferred or imposed on the principal registrar by or under this Act or any other legislation or law.
(1) There is to be a Rule Committee of the Tribunal. (2) The functions of the Rule Committee are—
(a) to make the Tribunal rules, and (b) to ensure that the Tribunal rules it makes are as flexible and informal as possible. (3) The Rule Committee is to be composed of the following—
(a) the President, (b) each Division Head, (c) such other members as may be appointed by the President from time to time.
(1) The Rule Committee may make rules of the Tribunal (referred to in this Act as the Tribunal rules ), not inconsistent with this Act or enabling legislation, for or with respect to the following—
(a) the practice and procedure to be followed in proceedings in the Tribunal, (b) any matter that is, by this Act or any other legislation, required or permitted to be prescribed by the Tribunal rules. Note— A number of provisions of this Act provide for matters to be prescribed by the procedural rules. The term procedural rules is defined in section 4(1) to include the Tribunal rules. Procedural rules that make provision as referred to in section 4(4) are not inconsistent with this Act. See section 4(5).(2) Without limiting subsection (1)(a), the Tribunal rules may make provision for or with respect to any of the matters specified in Schedule 7.
(1) The President may give directions ( procedural directions ) relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal.
(1) The Tribunal is to be constituted as follows—
(a) in the case of an internal appeal or designated external appeal—by an Appeal Panel of the Tribunal consisting of—
(i) one member who is an Australian lawyer, or (ii) 2 or more members (at least one of whom must be an Australian lawyer), (b) in the case of proceedings for contempt of the Tribunal—by one or more of the following members—
(i) the President, (ii) any other member who is a current or former NSW judicial officer, (c) in the case of proceedings for a contravention of a civil penalty provision of this Act—by one or more of the following—
(i) the President, (ii) a Deputy President, (iii) a principal member who is an Australian lawyer of at least 7 years’ standing, (d) in the case of any other proceedings—by one or more Division members of the Division to which the function of dealing with the proceedings is allocated. Note— The functions of the Tribunal are generally exercised in the Divisions of the Tribunal by Division members. However, the functions of the Tribunal when constituted by an Appeal Panel or in exercise of its enforcement jurisdiction are not allocated to any particular Division of the Tribunal. See section 16(4). A Division Schedule for a Division may, in some cases, make special provision for the constitution of the Tribunal when exercising functions allocated to that Division (including the qualifications of members to sit in specified kinds of proceedings). It may also provide for certain Division functions to be exercised by a registrar and for the constitution of Appeal Panels in internal appeals against decisions made in the Division. The procedural rules may also authorise a registrar to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal. See section 23(6). (2) The President may give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings. Note— The President may delegate the function of constituting the Tribunal for particular proceedings to a Division Head for a Division of the Tribunal or another member. See clause 12 of Schedule 2.
(1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
(1) The Tribunal has general jurisdiction over a matter if—
(a) legislation (other than this Act or the procedural rules) enables the Tribunal to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter, and (b) the matter does not otherwise fall within the administrative review jurisdiction, appeal jurisdiction or enforcement jurisdiction of the Tribunal. Note— The general jurisdiction of the Tribunal includes (but is not limited to) functions conferred on the Tribunal by enabling legislation to review or otherwise re-examine decisions of persons or bodies other than in connection with the exercise of the Tribunal’s administrative review jurisdiction.
(1) The provides for the circumstances in which the Tribunal has Administrative Decisions Review Act 1997 administrative review jurisdiction over a decision of an administrator.Note— See section 9 of the . Administrative Decisions Review Act 1997 (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction—
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the or enabling legislation in connection with the conduct or resolution of such proceedings. Administrative Decisions Review Act 1997
(1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions).(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction—
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(1) The Tribunal has internal appeal jurisdiction over—
(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and (b) any decision made by a registrar of a kind that is declared by this Act or the procedural rules to be internally appealable for the purposes of this section. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its internal appeal jurisdiction—
(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.
(1) A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal. (2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that—
(a) the application or appeal was first made with the Tribunal, and (b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and (c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and (d) substituted proceedings on the application or appeal would be within the jurisdictional limit of the court. (3) An application for leave must be—
(a) filed with the authorised court along with—
(i) an application or appeal that has been completed in the form and manner required under this Act for the kind of application or appeal concerned, and (ii) if the parties to the application or appeal have reached a settlement before leave is sought using a resolution process referred to in section 37—a copy of the terms of settlement, and (b) accompanied by the applicable fee (if any) payable in the Tribunal for the application or appeal unless it has already been paid to the Tribunal.
(1) Proceedings taken to be commenced if leave granted If an authorised court grants leave for an original application or external appeal to be made to it instead of the Tribunal—
(a) proceedings for the determination of the application or appeal ( substituted proceedings ) are taken to have been commenced in the authorised court on the day on which the application or appeal was first made to the Tribunal, and(b) the court may make such orders (including in relation to the Tribunal) as it considers appropriate to facilitate its determination of the application or appeal. (2) Subsection (1) applies despite any limitation period under the or any enabling legislation that applies to the application or appeal concerned provided it was first lodged with the Tribunal before the expiry of the period. Limitation Act 1969
(1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.
(1) A party to proceedings in the Tribunal—
(a) has the carriage of the party’s own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave—
(i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party. (2) However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made. Note— A Division Schedule for a Division of the Tribunal may, in some cases, allow certain kinds of persons to represent parties in proceedings allocated to that Division without requiring the leave of the Tribunal. (3) The Tribunal may at its discretion—
(a) grant or refuse leave under subsection (1)(b), and (b) revoke any leave that it has granted.
(1) A summons for the purposes of this Act may be issued by a registrar—
(a) on the application of a party to the proceedings, or (b) at the direction of the Tribunal. Note— See also section 46(2)(b).
(1) A hearing is required for proceedings in the Tribunal except—
(a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules.
(1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.
(1) The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.
(1) If the Tribunal is constituted by more than one member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.
(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.
(1) The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.
(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—
(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
(1) This section applies only to the following proceedings—
(a) proceedings in the Guardianship Division (or internal appeals against decisions made in such proceedings), (b) proceedings for a decision for the purposes of the community welfare legislation within the meaning of the (including an internal appeal against such a decision), Community Services (Complaints, Reviews and Monitoring) Act 1993 (c) such other proceedings (or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) General rule Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose information to another person or body if there is an overriding public interest against the disclosure of the information under the . Government Information (Public Access) Act 2009
(1) The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court. Note— Section 27(1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer). (2) A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.
(1) This section applies to a provision of this Act (a civil penalty provision of this Act) if the words “Civil penalty provision” are specified at the end of the provision.Note— A contravention of a provision of this Act for which a maximum penalty is provided is an offence rather than a contravention of a civil penalty provision of this Act. (2) The Tribunal may, on the application of an authorised official, order a person to pay a monetary penalty if the Tribunal is satisfied that the person has contravened a civil penalty provision of this Act.
(1) Recovery of non-penalty amounts For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by a registrar.
Note— A Division Schedule for a Division of the Tribunal may, in some cases, make special and different provision for appeals to the Supreme Court or another court against certain decisions made by the Tribunal in the Division.
(1) Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division—
(a) any decision made by an Appeal Panel in an internal appeal, (b) any decision made by the Tribunal in an external appeal, (c) any decision made by the Tribunal in proceedings in which a civil penalty has been imposed by the Tribunal in exercise of its enforcement or general jurisdiction. Note— An appealable decision includes any ancillary or interlocutory decisions of the Tribunal in such proceedings.
(1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.
(1) This section applies in relation to an appeal against a decision of the Tribunal to—
(a) the Supreme Court or District Court under this Division, or (b) the Supreme Court, the District Court or another court under any other provision of this Act.
(1) An Australian legal practitioner, or any other person appearing before the Tribunal on behalf of a party in any proceedings, has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.
(1) Annual reports As soon as practicable after 30 June (but on or before 31 December) of each year, the President must provide the Minister with a report (an annual report ) on the operations of the Tribunal for the period ending on 30 June in that year.
Note— If special constitution requirements for the exercise of a Division function are not specified by the following provisions, the Tribunal may be constituted in accordance with the general provisions of section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions of that section in connection with the exercise of Division functions for the purposes of making ancillary or interlocutory decisions of the Tribunal.
Note— If special constitution requirements for the exercise of a Division function are not specified by the following provisions, the Tribunal may be constituted in accordance with the general provisions of section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions of that section in connection with the exercise of Division functions for the purposes of making ancillary or interlocutory decisions of the Tribunal.
(Sections 25(2) and 90(2)(a)) 1 The time and manner for making applications or lodging appeals. 2 The parties to proceedings in the Tribunal (including the joinder, misjoinder and non-joinder of parties and rights of intervention of third parties such as Ministers in proceedings). 3 The representation of parties by Australian legal practitioners or other persons (including when leave should be refused or granted for a person to represent a party and the circumstances when the Tribunal may appoint a person to represent a party). 4 The selection, use and functions of friends of the Tribunal with respect to the presentation of cases before the Tribunal. 5 The circumstances in which proceedings may be heard ex parte or in which a default decision of the Tribunal may be obtained. 6 The rights and obligations of parties, prospective parties and other persons to obtain access to information, documents or things in relation to proceedings or prospective proceedings in the Tribunal. 7 The service, giving or lodgment of notices and other documents, including for the purposes of the . Administrative Decisions Review Act 1997 8 The splitting and consolidation of proceedings in the Tribunal. 9 The admission and exclusion of evidence and the manner in which evidence is to be tendered. 10 The transcribing or other recording of proceedings in the Tribunal.