Civil and Administrative Tribunal Amendment Act 2013 No 94



An Act to amend the Civil and Administrative Tribunal Act 2013 to make further provision with respect to the constitution and functions of the Tribunal and to rename and make related amendments to the Administrative Decisions Tribunal Act 1997; and for related purposes.
1   Name of Act
This Act is the Civil and Administrative Tribunal Amendment Act 2013.
2   Commencement
(1)  This Act commences on the date of assent to this Act, except as provided by subsection (2).
(2)  Schedule 2 commences on the establishment day within the meaning of the Civil and Administrative Tribunal Act 2013.
[1]   Whole of Act
Omit all bracketed notes wherever occurring in section headings that draw attention (“cf”) to provisions of other Acts.
[2]   Section 3
Omit the section. Insert instead:
  
3   Objects of Act
The objects of this Act are:
(a)  to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and
(b)  to enable the Tribunal:
(i)  to make decisions as the primary decision-maker in relation to certain matters, and
(ii)  to review decisions made by certain persons and bodies, and
(iii)  to determine appeals against decisions made by certain persons and bodies, and
(iv)  to exercise such other functions as are conferred or imposed on it, and
(c)  to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and
(d)  to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and
(e)  to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and
(f)  to ensure that the Tribunal is accountable and has processes that are open and transparent, and
(g)  to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.
[3]   Section 4 Definitions
Insert in alphabetical order in section 4 (1):
  
administrative review application, administrative review decision, administrative review jurisdiction, administratively reviewable decision and administrator—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.
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.
enforcement jurisdiction—see section 33.
external appeal and external appeal jurisdiction—see section 31.
external decision-maker means a decision-maker who is external to the Tribunal.
general application, general decision and general jurisdiction—see section 29.
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,
(i)  any other interlocutory issue before the Tribunal.
internal appeal, internal appeal jurisdiction and internally appealable decision—see section 32.
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.
resolution process—see section 37.
[4]   Section 4 (1), definition of “application”
Omit “section 6”. Insert instead “section 39”.
[5]   Section 4 (1), definition of “Deputy Registrar”
Omit the definition.
[6]   Section 4 (1)
Omit the definition of Registrar. Insert instead:
  
registrar means the principal registrar or any other person employed in the Public Service as a registrar of the Tribunal.
[7]   Section 4 (4)–(7)
Insert after section 4 (3):
  
(4)  Any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules.
(5)  Subject to section 17 (3), procedural rules that make provision as referred to in subsection (4) are not inconsistent with this Act.
Note—
Section 17 (3) provides that 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 provisions of this Act or the provisions of the procedural rules. See also item 23 of Schedule 7. Also, the procedural rules cannot be inconsistent with enabling legislation. See sections 25 (1) and 90 (2) (a).
(6)  A reference in this Act to the Administrative Decisions Review Act 1997 is a reference to the Administrative Decisions Tribunal Act 1997, as renamed and amended, on and from the establishment day.
Note—
See the amendments made by Schedule 2 (Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal) to the Civil and Administrative Tribunal Amendment Act 2013.
(7)  Notes included in this Act do not form part of this Act.
[8]   Sections 5 and 6
Omit the sections. Insert instead:
  
5   Meaning of “decision”
(1)  In this Act, decision includes any of the following:
(a)  making, suspending, revoking or refusing to make an order or determination,
(b)  giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,
(c)  issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d)  imposing a condition or restriction,
(e)  making a declaration, demand or requirement,
(f)  retaining, or refusing to deliver up, an article,
(g)  doing or refusing to do any other act or thing.
(2)  For the purposes of this Act:
(a)  a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and
(b)  a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and
(c)  a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and
(d)  a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.
6   Meaning of “decision-maker”
(1)  For the purposes of this Act, the decision-makerin relation to a decision is the person or body that makes (or is taken to have made) the decision for the purposes of enabling legislation or this Act.
(2)  The person or body specified by enabling legislation as a person or body whose decisions are reviewable or appealable is taken to be the only decision-maker in relation to the making of such a decision even if some other person or body also had a role in the making of the decision.
[9]   Section 8 Appointments and other matters to facilitate establishment of Tribunal
Omit section 8 (2) (e). Insert instead:
  
(e)  appointment as a registrar (including as the principal registrar) or other member of staff of the Tribunal.
[10]   Section 11 Appointment of occasional members
Insert “and the determination of costs” after “the dismissal” in section 11 (6) (b).
[11]   Section 11 (6) (c)
Insert “and the determination of costs” after “the decision”.
[12]   Section 16 Divisions of Tribunal
Omit “and Regulatory” from section 16 (1) (c).
[13]   Section 16 (1) (e)
Omit the paragraph.
[14]   Section 16 (4)–(6)
Omit section 16 (4). Insert instead:
  
(4)  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.
(5)  A Division of the Tribunal is composed of such members as are assigned to it by or under this Act.
(6)  If the functions allocated to a Division of the Tribunal are reallocated to another Division as a result of amendments made to this Act by amending legislation, any proceedings that were instituted or commenced in the Tribunal before the reallocation may continue to be dealt with and determined as if the reallocation had not occurred unless the amending legislation provides otherwise.
Note—
See, for example, section 17, which enables the regulations to make amendments to Division Schedules for Divisions of the Tribunal and, for that purpose, make provision for matters of a savings or transitional nature.
[15]   Section 17 Division Schedule for a Division of Tribunal
Omit section 17 (2) (g). Insert instead:
  
(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).
[16]   Section 17 (3)–(7)
Omit section 17 (3). Insert instead:
  
(3)  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 provisions of this Act or the provisions of the procedural rules.
(4)  Subject to subsections (5) and (6), the regulations may:
(a)  amend section 16 (1) to change the name of a Division of the Tribunal and amend other provisions of this Act (including a Division Schedule for a Division of the Tribunal) to update references to a renamed Division, and
(b)  amend a Division Schedule for a Division of the Tribunal to make additional or different provision for or with respect to the composition and functions of the Division (including, without limitation, the matters referred to in subsection (2)), and
(c)  make provision for matters of a saving or transitional nature consequent on the amendment of this Act by the regulations.
(5)  The Minister is not to recommend the making of a regulation for the purposes of subsection (4) unless the Minister certifies that:
(a)  the President has agreed to the amendments that are proposed to be made by the regulation, and
(b)  in the case of proposed amendments to Schedule 4 (other than an amendment of a kind referred to in subsection (4) (a))—the Minister for Fair Trading has also agreed to the proposed amendments to that Schedule.
(6)  However, a regulation made for the purposes of subsection (4) may not make:
(a)  any of the following amendments to Schedule 5:
(i)  an amendment that has the effect of reallocating any of the functions of the Division of the Tribunal to which that Schedule relates in relation to the Health Practitioner Regulation National Law (NSW) to another Division,
(ii)  an amendment to Division 3 (Health practitioners) of Part 4 of that Schedule, including an amendment to another provision of that Schedule that has the effect of indirectly amending clause 14 (Effect of amendments to Schedule by regulations), or
(b)  any amendment to Schedule 6 (other than an amendment of a kind referred to in subsection (4) (a)).
(7)  Any reference in any other Act or instrument made under any other Act to a Division of the Tribunal that has been renamed under this section is to be read as a reference to the Division as renamed.
[17]   Section 19 Division Lists and List Managers for Divisions of Tribunal
Omit “Tribunal rules” from section 19 (3) (b). Insert instead “procedural rules”.
[18]   Section 20 Functions of President
Omit section 20 (3). Insert instead:
  
(3)  Without limiting subsections (1) and (2), the President has the following functions if appointed before the establishment day:
(a)  to assist in the development of the Tribunal rules for the Tribunal to use on its establishment,
(b)  to assign functions to other members appointed before the establishment day with respect to the establishment of the Tribunal,
(c)  to assign functions to any registrar or other member of staff appointed before the establishment day,
(d)  to exercise such other functions as are necessary or convenient to facilitate the establishment of the Tribunal.
[19]   Part 2, Division 4, heading
Omit the heading. Insert instead:
Division 4  Registrars and other staff
[20]   Section 22 Appointment of registrars and other staff
Omit section 22 (1). Insert instead:
  
(1)  Persons (including the principal registrar and any other registrars) may be employed in the Public Service to enable the Tribunal to exercise its functions. Those employees may be referred to as the employees or staff of the Tribunal.
[21]   Section 22 (3)
Insert after section 22 (2):
  
(3)  A reference in this Act to the appointment of a registrar or other member of staff of the Tribunal is to be read as a reference to the employment of a person as such in the Public Service.
[22]   Section 23
Omit the section. Insert instead:
  
23   Functions of registrars
(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.
(3)  A registrar may exercise such functions of the principal registrar as may be directed by the President or principal registrar.
(4)  Without limiting subsections (1) and (3):
(a)  the President may, from time to time, designate a registrar to be a registrar for one or more Divisions of the Tribunal, and
(b)  the designated registrar may (subject to any direction of the President or principal registrar) exercise the functions of the principal registrar in connection with proceedings and legislation allocated to the Division or Divisions concerned.
(5)  Anything done or omitted to be done by a registrar in exercising a function of the principal registrar has effect as if it had been done or omitted to be done by the principal registrar.
(6)  The procedural rules may make provision for or with respect to the functions of the principal registrar and other registrars, including authorising registrars to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal.
(7)  In addition, a registrar (including the principal registrar) appointed before the establishment day has and may exercise such functions with respect to the establishment of the Tribunal as may be assigned to the registrar under section 20 (3).
[23]   Part 2, Division 5
Omit the Division. Insert instead:
  
Division 5 Tribunal rules and procedural directions
24   Rule Committee of Tribunal
(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.
(4)  The President is to be the Chairperson of the Rule Committee.
(5)  The President is to appoint one of the other members of the Rule Committee who is a Deputy President as Deputy Chairperson of the Rule Committee.
(6)  Unless the regulations provide otherwise, the Rule Committee is to regulate its own procedure.
(7)  The following provisions apply in relation to meetings of the Rule Committee unless the regulations provide, or the Rule Committee decides, otherwise:
(a)  the Chairperson of the Rule Committee or, in the absence of the Chairperson, the Deputy Chairperson of the Committee is to preside at a meeting of the Committee,
(b)  in the absence from a meeting of the Rule Committee of both the Chairperson and Deputy Chairperson, another member of the Committee who is a Deputy President is to be chosen by the members present to preside at the meeting,
(c)  the quorum for a meeting of the Rule Committee is a majority of the number of the members for the time being,
(d)  any duly convened meeting of the Rule Committee at which a quorum is present is competent to transact any business of the Rule Committee and has and may exercise all the functions of the Rule Committee,
(e)  a decision supported by a majority of the votes cast at a meeting of the Rule Committee at which a quorum is present is the decision of the Committee,
(f)  the person presiding at a meeting of the Rule Committee has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
(8)  The President is to call the first meeting of the Rule Committee in such manner as the President thinks fit and (subject to any decision of the Committee) may call such other meetings of the Committee as the President thinks necessary.
25   Tribunal rules may provide for practice and procedure
(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.
(3)  Without limiting the generality of section 42 of the Interpretation Act 1987, the Tribunal rules may also prescribe different rules for:
(a)  each of the Divisions of the Tribunal, and
(b)  different classes of matters.
Note—
Section 42 of the Interpretation Act 1987 provides for the matters for which statutory rules may generally make provision.
(4)  The Tribunal rules may authorise or require the use of an electronic case management system established under clause 2 of Schedule 1 to the Electronic Transactions Act 2000 in relation to any proceedings in the Tribunal in respect of which the use of such a system is authorised by an order in force under clause 3 of Schedule 1 to that Act.
(5)  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.
Note—
Section 90 (2) also enables the regulations to make provision concerning matters for or with respect to which the Tribunal rules may make provision (including the matters specified in Schedule 7).
(6)  This section does not limit the operation of section 78 (Rules of court) of the Interpretation Act 1987.
26   Procedural directions
(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.
(2)  The procedural directions must be:
(a)  publicly available, and
(b)  consistent with this Act, enabling legislation and the procedural rules.
(3)  Without limiting subsection (2) (a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Tribunal.
(4)  Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural directions.
[24]   Part 2, Division 6
Omit the Division. Insert instead:
  
Division 6 Constitution of Tribunal
27   Constitution of 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.
(3)  In giving a direction as to the members who are to constitute the Tribunal for the purposes of any particular proceedings, the President is to have regard to the following matters:
(a)  the degree of public importance or complexity of the subject-matter of the proceedings,
(b)  the need for any of the members to have special knowledge or experience in the subject-matter of the proceedings,
(c)  any applicable requirements in relation to the constitution of the Tribunal that are specified by a Division Schedule for a Division of the Tribunal or enabling legislation,
(d)  such other matters as the President considers relevant.
(4)  The President may give directions (whether for particular proceedings, classes of proceedings or generally) as to which member is to preside at proceedings in the Tribunal when the Tribunal is constituted by more than one member.
(5)  There may be more than one sitting of the Tribunal (including when constituted as an Appeal Panel) at the same time.
(6)  In this section:
designated external appeal means any of the following:
(a)  an external appeal under section 45 of the Drug and Alcohol Treatment Act 2007,
(b)  an external appeal under section 50 of the NSW Trustee and Guardian Act 2009,
(c)  any other external appeal that this Act or enabling legislation has declared to be a designated external appeal for the purposes of this section.
[25]   Parts 3–7
Omit Part 3. Insert instead:
  
Part 3 Jurisdiction of Tribunal
28   Jurisdiction of Tribunal generally
(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.
(2)  In particular, the jurisdiction of the Tribunal consists of the following kinds of jurisdiction:
(a)  the general jurisdiction of the Tribunal,
(b)  the administrative review jurisdiction of the Tribunal,
(c)  the appeal jurisdiction of the Tribunal (comprising its external and internal appeal jurisdiction),
(d)  the enforcement jurisdiction of the Tribunal.
(3)  Subject to this Act and enabling legislation, the Tribunal has jurisdiction in respect of matters arising before or after the establishment of the Tribunal.
Note—
Section 35D of the Ombudsman Act 1974 enables the Ombudsman and the President to enter into arrangements with respect to the co-operative exercise of the respective functions of the Ombudsman and the Tribunal (including providing for the referral of matters between them).
29   General jurisdiction
(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.
(2)  The Tribunal also has the following jurisdiction in proceedings for the exercise of its general 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.
(3)  A general decision of the Tribunal is a decision of the Tribunal determining a matter over which it has general jurisdiction.
(4)  A general application is an application made to the Tribunal for a general decision.
(5)  Nothing in this section permits general jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
30   Administrative review jurisdiction
(1)  The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Note—
(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 Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.
(3)  An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
Note—
(4)  An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Note—
(5)  An administrative review decision of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.
(6)  An administrative review application is an application made to the Tribunal for an administrative review decision.
Note—
Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.
31   External appeal jurisdiction of Tribunal
(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.
(3)  An appealable external decision is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction.
(4)  An external appeal is an appeal to the Tribunal against an appealable external decision.
(5)  A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following:
(a)  a decision made by a person to whom the function of making the decision has been delegated,
(b)  if the provision specifies the decision-maker by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,
(c)  a decision made by any other person authorised to exercise the function of making the decision.
(6)  Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
32   Internal appeal jurisdiction of Tribunal
(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.
(3)  However, the internal appeal jurisdiction of the Tribunal does not extend to:
(a)  any decision of an Appeal Panel, or
(b)  any decision of the Tribunal in an external appeal, or
(c)  any decision of the Tribunal in proceedings for the exercise of its enforcement jurisdiction, or
(d)  any decision of the Tribunal in proceedings for the imposition of a civil penalty in exercise of its general jurisdiction.
Note—
The decisions above may be appealable to the Supreme Court and, in some cases in relation to civil penalty decisions made by the Tribunal (whether under this Act or enabling legislation), the District Court. See section 73 and Part 6.
(4)  An internally appealable decision is a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction.
(5)  An internal appeal is an appeal to the Tribunal against an internally appealable decision.
(6)  Subject to the procedural rules, if a decision of a registrar is an internally appealable decision, the provisions of this Act relating to the making and determination of an internal appeal are taken to apply as if:
(a)  any reference to the Tribunal at first instance (however expressed) included a reference to a registrar, and
(b)  any requirement concerning the granting of leave to appeal against particular kinds of decisions of the Tribunal or on particular grounds extended to decisions of the same kind made by a registrar or grounds of the same kind.
33   Enforcement jurisdiction of Tribunal
(1)  The enforcement jurisdiction of the Tribunal is comprised of:
(a)  the functions of the Tribunal when dealing with an alleged or apparent contempt of the Tribunal, and
(b)  the functions of the Tribunal when dealing with an application under section 77 for a contravention of a civil penalty provision of this Act.
Note—
The functions of the Tribunal relating to the imposition of civil penalties under legislation other than this Act fall within the general jurisdiction, and not the enforcement jurisdiction, of the Tribunal. The enforcement jurisdiction of the Tribunal extends only to proceedings for a civil penalty under this Act.
The Tribunal must observe the rules of evidence when exercising its enforcement jurisdiction. See section 38 (3).
(2)  The Tribunal also has the following jurisdiction in proceedings for the exercise of its enforcement 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 in connection with the conduct or resolution of such proceedings.
34   Inter-relationship between Tribunal and Supreme Court
(1)  The Supreme Court may:
(a)  refuse to conduct a judicial review of an administratively reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made for an internal review of the decision or an administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997, or
(b)  refuse to conduct a judicial review of a decision of an external decision-maker if it is satisfied that, in all the circumstances, adequate provision is made for the review of the decision by the Tribunal by way of an external appeal, or
(c)  refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision.
(2)  This section:
(a)  permits, but does not require, the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and
(b)  does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision.
(3)  In this section:
internal review of an administratively reviewable decision means an internal review of the decision conducted by or on behalf of an administrator under:
(b)  any other Act instead of the Administrative Decisions Review Act 1997.
judicial review does not include an appeal to the Supreme Court under this or any other Act.
Part 4 Practice and procedure
Division 1 Introduction
35   Application of Part
Each of the provisions of this Part is subject to enabling legislation and the procedural rules.
Note—
The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17 (3).
Section 4 (4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules.
Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods within which applications or appeals under that legislation are to be made.
36   Guiding principle to be applied to practice and procedure
(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.
(2)  The Tribunal must seek to give effect to the guiding principle when it:
(a)  exercises any power given to it by this Act or the procedural rules, or
(b)  interprets any provision of this Act or the procedural rules.
(3)  Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:
(a)  a party to proceedings in the Tribunal,
(b)  an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.
(4)  In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.
(5)  However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
37   Tribunal to promote use of resolution processes
(1)  The Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes.
Note—
See section 59 for the power of the Tribunal to give effect to a settlement reached by the parties following the use of a resolution process.
(2)  A resolution process is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings.
38   Procedure of Tribunal generally
(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.
(3)  Despite subsection (2):
(a)  the Tribunal must observe the rules of evidence in:
(i)  proceedings in exercise of its enforcement jurisdiction, and
(ii)  proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and
(b)  section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.
Note—
Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.
(4)  The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(5)  The Tribunal is to take such measures as are reasonably practicable:
(a)  to ensure that the parties to the proceedings before it understand the nature of the proceedings, and
(b)  if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c)  to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
(6)  The Tribunal:
(a)  is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(b)  may require evidence or argument to be presented orally or in writing, and
(c)  in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
Division 2 Commencement of proceedings
39   What constitutes an application
For the purposes of this Act, an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision.
40   Making of applications and appeals
An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules.
41   Extensions of time
(1)  The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2)  Such an application may be made even though the relevant period of time has expired.
42   Service of documents outside the State
The Tribunal may require a document to be served outside the State.
43   Effect of pending general applications and appeals
(1)  This section applies to the making or lodgment of any of the following (a pending general application or appeal):
(a)  a general application for the review or other re-examination of a decision made by an external decision-maker,
(b)  an external appeal,
(c)  an internal appeal.
Note—
See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions.
(2)  A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision.
(3)  The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
Division 3 Participation in proceedings
44   Parties and intervention
(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.
(2)  The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has:
(a)  been improperly or unnecessarily joined, or
(b)  ceased to be a proper or necessary party.
(3)  For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision.
(4)  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 legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings,
(c)  any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings.
(5)  A Minister may (from money otherwise lawfully available for the purpose) authorise the payment to a party to the proceedings in which the Minister or the Minister’s delegate intervenes such costs (if any) as the Minister considers were reasonably incurred by that party in relation to the proceedings as a result of that intervention.
45   Representation of parties
(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 for the person 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.
(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)  A person is not entitled to legal aid under the Legal Aid Commission Act 1979 merely because the Tribunal has made an order under subsection (4) (c).
(6)  Anything done or omitted to be done by a person of a class prescribed by the regulations who is appointed by the Tribunal to represent a party to proceedings does not subject the person personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of representing the party. However, any such liability attaches instead to the Crown.
46   Powers in relation to witnesses
(1)  The Tribunal may:
(a)  call any witness of its own motion, and
(b)  examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and
(c)  examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and
(d)  compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings.
(2)  If the Tribunal decides to call a person as a witness under subsection (1) (a), the Tribunal may:
(a)  seek to procure the voluntary attendance of the witness before it by notifying the person in such manner as it thinks appropriate in the circumstances, or
(b)  issue a summons (or direct a registrar to issue a summons) to compel the attendance of the person before it.
(3)  Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.
47   Allowances and expenses of witnesses
(1)  If the regulations so provide, a person (other than a public servant in his or her capacity as such) who is required to appear or give evidence before the Tribunal is entitled to be paid such allowances and expenses as are prescribed, or ascertained in accordance with, the regulations.
(2)  Subject to subsection (3), the allowances and expenses are to be paid by the party at whose request a witness is summoned.
(3)  The Tribunal may order that the allowances and expenses of a witness referred to in subsection (2) be paid wholly or partly by the State out of money otherwise lawfully available.
48   Issue of summons
(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).
(2)  The fee (if any) prescribed by the regulations is payable for the issue of a summons on the application of a party to the proceedings.
(3)  Such a summons must be signed by a registrar or as otherwise prescribed by the procedural rules and may require the person to whom it is addressed:
(a)  to attend and give evidence, or
(b)  to attend and produce documents or other things,
or both.
(4)  The regulations may make provision for or with respect to excusing, in specified circumstances, a person who produces documents or other things in answer to a summons from attendance at the Tribunal.
(5)  A summons may be served within or outside the State.
Division 4 Conduct of proceedings
49   Hearings to be open to public
(1)  A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.
(2)  The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it 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.
50   When hearings are required
(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.
(2)  The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.
(3)  The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first:
(a)  afforded the parties an opportunity to make submissions about the proposed order, and
(b)  taken any such submissions into account.
(4)  The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
(5)  This section does not prevent the Tribunal from holding a hearing even if it is not required.
51   Adjournment of proceedings
The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).
52   Reconstitution of Tribunal during proceedings
(1)  The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member:
(a)  becomes unavailable for any reason, or
(b)  ceases to be a member, or
(c)  ceases to have a qualification required for participation in the proceedings.
(2)  The President may not replace a member unless the President has first:
(a)  afforded the parties an opportunity to make submissions about the proposed replacement, and
(b)  taken any such submissions into account.
(3)  The Tribunal as so reconstituted is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.
53   Amendments and irregularities
(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.
(2)  Any such amendment may be made:
(a)  at any stage of the proceedings, and
(b)  on such terms as the Tribunal thinks fit,
but may only be made after giving notice to the party to whom the amendment relates.
(3)  If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.
(4)  The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.
54   References of questions of law to Supreme Court
(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.
(2)  The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.
(3)  The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so.
(4)  If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not:
(a)  to give a decision in the proceedings to which the question is relevant while the reference is pending, or
(b)  to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.
(5)  Subsection (4) extends to the Tribunal when constituted as an Appeal Panel that is determining an internal appeal from a decision of the Tribunal in proceedings before which a question of law has been referred by the Tribunal at first instance to the Supreme Court under this section.
55   Dismissal of proceedings
(1)  The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b)  if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d)  if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2)  The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
Division 5 Determination of issues and proceedings
56   Tribunal may reserve decision
The Tribunal may reserve its decision in relation to any proceedings.
57   Tribunal divided in opinion
(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.
(2)  However, a question of law arising in proceedings in which the Tribunal is constituted by one or more members who are Australian lawyers is to be decided in accordance with the opinion of the member or the majority of the members who are Australian lawyers.
(3)  If the members are equally divided in their opinion, the opinion that prevails is:
(a)  in proceedings in which the presiding member is an Australian lawyer or none of the members sitting are Australian lawyers—the opinion of the presiding member, or
(b)  in proceedings in which the presiding member is not an Australian lawyer but one or more of the other members sitting are Australian lawyers:
(i)  on a question of law—the opinion of the member who is an Australian lawyer (or the member with the greatest seniority who is an Australian lawyer), or
(ii)  on any other question—the opinion of the presiding member.
(4)  In this section, question of law includes the question whether a particular question is a question of law.
58   Power to impose conditions
A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.
59   Powers when proceedings settled
(1)  The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if:
(a)  the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and
(b)  the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
(2)  The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.
60   Costs
(1)  Each party to proceedings in the Tribunal is to pay the party’s own costs.
(2)  The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3)  In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a)  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c)  the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d)  the nature and complexity of the proceedings,
(e)  whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f)  whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g)  any other matter that the Tribunal considers relevant.
(4)  If costs are to be awarded by the Tribunal, the Tribunal may:
(a)  determine by whom and to what extent costs are to be paid, and
(b)  order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(5)  In this section:
costs includes:
(a)  the costs of, or incidental to, proceedings in the Tribunal, and
(b)  the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
61   When decision determining proceedings takes effect
A general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision.
Note—
See section 66 of the Administrative Decisions Review Act 1997 for when an administrative review decision takes effect.
62   Tribunal to give notice of decision and provide written reasons on request
(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.
(2)  Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.
(3)  A written statement of reasons for the purposes of this section must set out the following:
(a)  the findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)  the Tribunal’s understanding of the applicable law,
(c)  the reasoning processes that lead the Tribunal to the conclusions it made.
(4)  Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.
63   Power to correct errors in decisions of Tribunal
(1)  If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.
(2)  If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.
(3)  Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where:
(a)  there is an obvious clerical or typographical error in the text of the notice or statement, or
(b)  there is an error arising from an accidental slip or omission, or
(c)  there is a defect of form, or
(d)  there is an inconsistency between the stated decision and the stated reasons.
Division 6 Information disclosure
64   Tribunal may restrict disclosures concerning 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.
(2)  The Tribunal cannot make an order under this section that is inconsistent with section 65.
(3)  The Tribunal may from time to time vary or revoke an order made under subsection (1).
(4)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
65   Publication of names or identification of persons involved in certain 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 Community Services (Complaints, Reviews and Monitoring) Act 1993 (including an internal appeal against such a decision),
(c)  such other proceedings (or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(2)  A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a)  who appears as a witness before the Tribunal in any proceedings, or
(b)  to whom any proceedings in the Tribunal relate, or
(c)  who is mentioned or otherwise involved in any proceedings in the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty:
(a)  in the case of a corporation—100 penalty units, or
(b)  in any other case—50 penalty units or imprisonment for 12 months, or both.
(3)  This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(4)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
(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.
(2) Disclosure to person or body other than Tribunal The provisions of the Government Information (Public Access) Act 2009 continue to apply to the disclosure of information to any person or body other than to the Tribunal as if this Act had not been enacted.
(3) Disclosure to Tribunal If a provision of this Act requires or authorises any person or body to disclose information to the Tribunal in relation to any proceedings before it and there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009:
(a)  the Government Information (Public Access) Act 2009 does not prevent the disclosure of the information to the Tribunal, and
(b)  the Tribunal is to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure.
(4) Certificates by Director-General or General Counsel of the Department of Premier and Cabinet concerning Cabinet information The Director-General or General Counsel of the Department of Premier and Cabinet may certify that information is Cabinet information. Any such certificate:
(a)  is conclusive of that fact, and
(b)  authorises any person who would otherwise be required under this Act to lodge a document containing that information with (or disclose the information to) the Tribunal to refuse to lodge the document with (or disclose the information to) the Tribunal.
(5) Definitions In this section:
Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.
disclose has the same meaning as in the Government Information (Public Access) Act 2009.
67   Privileged documents
(1)  Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995:
(a)  section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,
(b)  section 10 (Parliamentary privilege preserved),
(c)  Part 3.10 (Privileges) of Chapter 3.
(2)  In this section:
disclosure of a document includes the following:
(a)  the provision of copies of the document,
(b)  the granting of access to the document,
(c)  the disclosure of the contents of the document.
document includes a part of a document.
NSW court has the same meaning as in the Evidence Act 1995.
68   Court cannot compel disclosure by members and officers of certain confidential information
(1)  A person who is, or has been, a member, registrar or other officer of the Tribunal is not competent, and cannot be required, to give evidence to a court relating to a matter, or produce in a court a document furnished to the Tribunal in connection with any proceedings, if:
(a)  the giving of the evidence or production of the document would be contrary to an order of the Tribunal in force under section 64 (1) or under a similar provision of another Act, or
(b)  an application has been made to the Tribunal for an order under section 64 (1), or under such a similar provision, concerning the matter to which the evidence would relate, or in relation to the document, and the Tribunal has not determined that application, or
(c)  the evidence concerns, or the document is, a document that the Tribunal is prevented from disclosing by operation of section 66.
(2)  A person who is, or has been, a member, registrar or other officer of the Tribunal cannot be required to give evidence to a court in relation to any proceedings in the Tribunal.
(3)  In this section:
court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
produce includes permit access to.
69   Application of confidentiality provisions in other Acts
If:
(a)  a provision of another Act prohibits the disclosure (whether absolutely, conditionally or in certain circumstances) of information by persons who:
(i)  are included in a particular class of persons, and
(ii)  acquired the information in the course of their duties under the Act, and
(b)  a person who is (or has been) a member, officer, registrar or other staff member of the Tribunal has acquired or acquires any such information in the course of his or her duties as such,
that provision applies to the person as if he or she were included in the particular class of persons and acquired the information in the course of duties under that Act.
70   Improper disclosure of information
A person must not disclose information obtained in exercising a function under this Act unless the disclosure is made:
(a)  with the consent of the person to whom the information relates, or
(b)  in connection with the execution or administration of this Act or the Administrative Decisions Review Act 1997 or other enabling legislation, or
(c)  for the purpose of any legal proceedings arising out of this Act or the Administrative Decisions Review Act 1997 or other enabling legislation or any report of such proceedings, or
(d)  with other legal excuse.
Maximum penalty:
(a)  in the case of a corporation—100 penalty units, or
(b)  in any other case—50 penalty units or imprisonment for 12 months, or both.
Part 5 Enforcement
Division 1 Compliance
71   False or misleading statements
A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.
Maximum penalty: 50 penalty units or imprisonment for 12 months, or both.
72   Contravention of orders of Tribunal
(1)  A person must not, without lawful excuse, contravene a designated order of the Tribunal.
Maximum penalty:
(a)  in the case of a corporation—100 penalty units, or
(b)  in any other case—50 penalty units or imprisonment for 12 months, or both.
(2)  A designated order of the Tribunal means any of the following:
(a)  an order of the Tribunal made under section 64 (Tribunal may restrict disclosures concerning proceedings),
(b)  an order of the Tribunal made under section 108 (2) (b), (c), (d) or (e) of the Anti-Discrimination Act 1977 or an interim order of the Tribunal made under that Act,
(c)  an order of the Tribunal made under section 42 of the Guardianship Act 1987,
(d)  any other order of the Tribunal that a provision of this Act or enabling legislation has declared to be a designated order for the purposes of this section.
(3)  A person must not, without reasonable excuse, contravene any other order of the Tribunal made under this Act or any other legislation.
Civil penalty provision.
Division 2 Contempt of Tribunal
73   Contempt of Tribunal
(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.
(3)  Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.
(4)  For the purposes of this section:
(a)  sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and
(b)  a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and
(c)  section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.
Note—
Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.
(5)  Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.
(6)  The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.
74   No double punishment for both contempt and offence or civil penalty provision contravention
(1)  An act or omission may be punished as a contempt of the Tribunal even though it could be punished as an offence or a contravention of a civil penalty provision of this Act.
(2)  An act or omission may be punished as an offence or a contravention of a civil penalty provision of this Act even though it could be punished as a contempt of the Tribunal.
(3)  However, a person is not liable to be punished twice if the person’s act or omission constitutes:
(a)  both an offence and a contempt of the Tribunal, or
(b)  both a contravention of a civil penalty provision of this Act and a contempt of the Tribunal.
Division 3 Proceedings for offences and civil penalties under this Act
75   Commencement of proceedings
Proceedings for an offence against a provision of this Act or on an application under section 77 may be commenced only by any of the following persons (an authorised official):
(a)  the Minister,
(b)  a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose.
76   Proceedings for offences
(1)  Proceedings for an offence against this Act are to be dealt with summarily before the Local Court.
(2)  Proceedings for an offence against this Act may be brought within the period of 12 months of the date on which the offence is alleged to have been committed.
77   Proceedings for contravention of civil penalty provision of this Act
(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.
(3)  The monetary penalty must not exceed:
(a)  in the case of a contravention by a corporation—$22,000, or
(b)  in any other case—$11,000.
(4)  In determining whether to impose a monetary penalty or the appropriate amount for the penalty, the Tribunal is to have regard to the following matters:
(a)  the deterrent effect of the imposition of a penalty on the contravener,
(b)  the nature and extent of the contravention,
(c)  any loss or damage sustained, or gain or benefit obtained, as a result of the contravention,
(d)  whether the contravention indicates a pattern of behaviour by the contravener of failing to comply with the orders or processes of the Tribunal,
(e)  the length of time during which the contravention occurred,
(f)  such other matters as the Tribunal considers relevant.
(5)  Proceedings for a penalty under this section may be brought within the period of 2 years of the date on which the contravention is alleged to have occurred.
(6)  The standard of proof that applies in connection with an application under this section is proof on the balance of probabilities.
Note—
The Tribunal must observe the rules of evidence in proceedings under this section. See section 38 (3).
(7)  A penalty imposed under this section may be recovered from the person on whom it is imposed in any court of competent jurisdiction as a debt due to the Crown.
Division 4 Civil enforcement
78   Recovery of amounts ordered to be paid
(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.
(2)  A certificate given under this section must identify the person liable to pay the certified amount.
(3)  A certificate of a registrar that:
(a)  is given under subsection (1), and
(b)  is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,
operates as such a judgment.
(4) Recovery of civil or other penalty amounts A civil or other penalty ordered to be paid by the Tribunal (other than for a contravention of a civil penalty provision of this Act) may be registered as a judgment debt in a court of competent jurisdiction and is enforceable accordingly.
Part 6 Appeals
Division 1 External appeals
79   Making and determination of external appeals
(1)  An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation.
(2)  In determining an external appeal, the Tribunal may:
(a)  in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal—make any of those orders, or
(b)  in any other case—make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(i)  the appeal to be allowed or dismissed,
(ii)  the decision under appeal to be confirmed, affirmed or varied,
(iii)  the decision under appeal to be quashed or set aside,
(iv)  the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(v)  the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.
Division 2 Internal appeals
80   Making of internal appeals
(1)  An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.
Note—
Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27 (1).
(2)  Any internal appeal may be made:
(a)  in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and
(b)  in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
(3)  The Appeal Panel may:
(a)  decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b)  permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
81   Determination of internal appeals
(1)  In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(a)  the appeal to be allowed or dismissed,
(b)  the decision under appeal to be confirmed, affirmed or varied,
(c)  the decision under appeal to be quashed or set aside,
(d)  the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(e)  the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.
(2)  The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal.
Division 3 Appeals from Tribunal to courts
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.
82   Interpretation
(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.
(2)  However, an appealable decision of the Tribunal does not include:
(a)  any decision made by the Tribunal in proceedings for contempt of the Tribunal, or
(b)  any decision made by an Appeal Panel in an internal appeal against a decision of a registrar.
Note—
Section 201 of the District Court Act 1973 (as applied by section 73) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under that section.
(3)  For the purpose of this Division, the appropriate appeal court for an appeal against a decision in proceedings in which a civil penalty has been imposed is:
(a)  if the Tribunal was constituted by one or more senior judicial officers—the Supreme Court, or
(b)  if the Tribunal was not constituted by or with any senior judicial officers—the District Court.
(4)  A reference to the Tribunal in another provision of this Division is to be read as a reference to an Appeal Panel if the appealable decision of the Tribunal concerned is a decision of an Appeal Panel.
(5)  In this section:
senior judicial officer means any of the following:
(a)  a Judge of the District Court,
(b)  a judicial member of the Industrial Relations Commission,
(c)  a Judge of the Land and Environment Court,
(d)  a Judge of the Supreme Court.
83   Appeals against appealable decisions
(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.
(2)  A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.
(3)  The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:
(a)  an order affirming, varying or setting aside the decision of the Tribunal,
(b)  an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.
(4)  Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.
(5)  Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.
84   Practice and procedure for appeals to courts under this Act
(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.
(2)  An appeal to which this section applies must be made:
(a)  within such time and in such manner as is prescribed by the rules of court for the court to which the appeal is made, or
(b)  within such further time as the court may allow.
(3)  The Tribunal (or any of the members constituting the Tribunal) cannot be made a party to an appeal to which this section applies. The rules of court for a court to which such an appeal may be made may make provision for the parties to any such appeal (including the designation of a respondent where the only party to the proceedings from which the appeal is brought was the appellant).
(4)  In this section:
rules of court for a court includes the uniform rules under the Civil Procedure Act 2005 if the uniform rules apply to proceedings of that court.
Part 7 Miscellaneous
85   Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
86   Seal of Tribunal
The Tribunal is to a have a seal and that seal is to be judicially noticed.
87   Authentication of documents
(1)  Every document requiring authentication by the Tribunal is sufficiently authenticated without the seal of the Tribunal if it is:
(a)  signed by any member or a registrar, or
(b)  authenticated in a manner prescribed by the regulations.
(2)  Judicial notice is to be taken of the signature of the member concerned or a registrar when appearing on a document issued by the Tribunal.
88   Proof of certain matters not required
In any legal proceedings, no proof is required (unless evidence to the contrary is given) of:
(a)  the constitution of the Tribunal, or
(b)  any decision of the Tribunal, or
(c)  the appointment or qualifications of, or the holding of office by, a member.
Note—
See also section 52 (Proceedings of statutory bodies) of the Interpretation Act 1987.
89   Protection of representatives, witnesses and staff members
(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.
(2)  Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the Supreme Court.
(3)  Any thing done or omitted to be done by a relevant staff member in exercising the functions conferred or imposed on the relevant staff member by or under this or any other Act does not, if the thing was done or omitted to be done in good faith, subject the relevant staff member personally to any action, liability, claim or demand.
Note—
See also clause 4 of Schedule 2 with respect to the protections and immunities of members of the Tribunal when exercising their functions.
(4)  In this section:
barrister has the same meaning as in the Legal Profession Act 2004.
relevant staff member means:
(a)  the principal registrar or any other registrar, or
(b)  an assessor appointed in accordance with the procedural rules, or
(c)  any other kind of person prescribed by the regulations who exercises functions in connection with the Tribunal.
90   Regulations
(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
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 regulations in their application to the practice and procedure of the Tribunal. 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), the regulations may make provision for or with respect to any of the following matters:
(a)  any matter for or with respect to which the Tribunal rules may make provision (including, but not limited to, the matters specified in Schedule 7),
Note—
The Tribunal rules cannot be inconsistent with enabling legislation. See section 25 (1).
(b)  the fees payable in respect of proceedings in the Tribunal, including fees for the following:
(i)  general applications and administrative review applications,
(ii)  external and internal appeals,
(iii)  the filing or lodgment of any document in the Tribunal,
(iv)  the provision of transcripts or recordings of proceedings,
(v)  the issue of summonses or any other document out of the Tribunal,
(c)  the fees payable in relation to the use of resolution processes of the Tribunal,
(d)  the fees payable for administrative services provided by a registrar or any other officer of the Tribunal, whether in connection with the administration of this Act or otherwise,
(e)  the waiver, postponement and refund of fees and exemptions from fees,
(f)  the use of resolution processes conducted under or for the purposes of this Act, including:
(i)  the kinds of processes that, and the circumstances in which such processes, may be used, and
(ii)  the persons who may conduct or participate in such processes and their respective functions, and
(iii)  the payment of costs in connection with the use of such processes, and
(iv)  the removal or limitation of the civil liability of participants in such processes (for example, liability for defamation), and
(v)  the disclosure or use in legal proceedings of statements, admissions or other evidence made, provided or disclosed in connection with such processes,
(g)  the use of telephones, audio visual links or any other means of communication in connection with proceedings in the Tribunal (including enabling witnesses to appear before, or give evidence, by such means),
(h)  the provision and use of interpreters,
(i)  the procedure of the Rule Committee.
(3)  The Minister is not to recommend the making of a regulation that prescribes a fee of the kind referred to in subsection (2) (b), (c) or (d) for the exercise of any of the functions of the Tribunal in proceedings that are entered in the Health Practitioner Division List of the Occupational Division of the Tribunal unless the Minister certifies that the Minister for Health has agreed to the fee.
91   Annual and other reports
(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.
(2)  The Minister is to lay an annual report, or cause it to be laid, before both Houses of Parliament as soon as practicable after receiving the report.
(3)  If a House of Parliament is not sitting when the Minister seeks to lay an annual report before it, the Minister is to cause a copy of the report to be presented to the Clerk of that House of Parliament.
(4)  An annual report presented under subsection (3):
(a)  is, on presentation and for all purposes, taken to have been laid before the House, and
(b)  may be printed by authority of the Clerk of the House, and
(c)  if so printed, is taken to be a document published by or under the authority of the House, and
(d)  is to be recorded:
(i)  in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, and
(ii)  in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the copy of the report by the Clerk.
(5) Other reports The President may, on behalf of the Tribunal, provide such other reports to the Minister (or any other Minister administering legislation that confers or imposes functions on the Tribunal) concerning any matter that the President considers:
(a)  to be of importance in relation to the administration of this Act or in relation to the jurisdiction of the Tribunal or any matter falling within its jurisdiction, or
(b)  to be in the public interest.
92   Review of Act
(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2)  The review is to be undertaken as soon as possible after the period of 5 years commencing on the establishment day.
(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
[26]   Schedule 1 Savings, transitional and other provisions
Omit paragraph (i) from the definition of existing tribunal in clause 2 (1). Insert instead:
  
(i)  the Vocational Training Appeal Panel constituted by section 62 of the Apprenticeship and Traineeship Act 2001.
[27]   Schedule 1, clause 2 (1)
Omit the definition of relevant amending Act (including the note to that definition).
Insert instead:
  
[28]   Schedule 1, clause 5 (2) (b)
Omit “member’s”. Insert instead “member”.
[29]   Schedule 1, clause 5, Table
Omit “Deputy Registrar” from the matter relating to the Deputy Chairperson (Registry and Administration) of the Consumer, Trader and Tenancy Tribunal.
Insert instead “Non-principal registrar”.
[30]   Schedule 1, clause 5, Table
Omit the matter relating to an Other member who is a health practitioner and Other member who is a lay person from the matter relating to an existing health practitioner tribunal.
[31]   Schedule 1, clause 5, Table
Omit “Principal member” from the matter relating to the Chairperson of a local land board under the Crown Lands Act 1989.
Insert instead “Senior member”.
[32]   Schedule 1, clause 5, Table
Omit the matter relating to the Victims Compensation Tribunal.
[33]   Schedule 1, Part 2, Division 3
Omit the Division. Insert instead:
  
Division 3 Proceedings concerning abolished existing tribunals
Subdivision 1 Interpretation
6   Interpretation
(1)  In this Division:
part heard proceedings means pending proceedings where the court or existing tribunal in which the proceedings were instituted or commenced had begun to hear (but had not determined) the proceedings before the establishment day.
pending proceedings are proceedings (including appeals) that:
(a)  were instituted or commenced before the establishment day, and
(b)  have not been finally determined before that day by the court or existing tribunal in which the proceedings were instituted or commenced.
Note—
See clause 2 (3) as to the meaning of finally determined proceedings.
unexercised right means a right (including a right exercisable only with leave) that:
(a)  was available to be exercised immediately before the establishment day, and
(b)  had not yet been exercised before that day.
unheard proceedings means pending proceedings that had not been heard before the establishment day by the court or existing tribunal in which the proceedings were instituted or commenced.
(2)  The provisions of this Division, in their application to local land boards constituted under the Crown Lands Act 1989, extend only to those functions of such boards that will become the functions of NCAT on and from the establishment day.
Note—
Certain non-adjudicative functions of local land boards will become functions of the Director-General (within the meaning of the Crown Lands Act 1989) instead of NCAT as a result of amendments made by the Civil and Administrative Legislation (Repeal and Amendment) Act 2013.
Subdivision 2 Determination of pending proceedings
7   Pending proceedings before existing tribunals transfer to NCAT
(1)  Unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT.
(2)  In relation to part heard proceedings in an existing tribunal, the person or persons constituting the tribunal for those proceedings:
(a)  are to continue, on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT, and
(b)  are taken to have been duly appointed as members of NCAT for the purposes of determining the matter even if the person or persons have not been appointed as members of NCAT by or under another provision of this Act, and
(c)  may have regard to any record of the proceedings before the existing tribunal, including a record of any evidence taken in the proceedings before the existing tribunal.
(3)  For the purposes of subclauses (1) and (2):
(a)  NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and
(b)  the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.
8   Pending court proceedings concerning existing tribunals may be completed
(1)  This clause applies to pending proceedings before a court on an appeal against, or for the judicial review of, a decision of an existing tribunal.
(2)  A court in proceedings to which this clause applies may, on and from the establishment day, continue to deal with the proceedings until they are concluded.
(3)  For this purpose:
(a)  the court continues to have and may exercise all the functions that the court had in relation to the proceedings immediately before the establishment day, and
(b)  the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.
(4)  Without limiting subclause (3), if the original powers of the court included the power to remit the proceedings to be heard and decided again by the existing tribunal concerned, the court may in determining the proceedings:
(a)  remit the proceedings instead to NCAT, and
(b)  make such other orders as it considers appropriate to facilitate the remitting of the proceedings to NCAT.
Subdivision 3 Exercise of certain unexercised rights
9   Certain unexercised rights to make applications or appeals to existing tribunals may continue to be exercised in NCAT
(1)  This clause applies to each of the following unexercised rights (an existing unexercised application or appeal right):
(a)  an unexercised right to apply to an existing tribunal for it to make a decision at first instance concerning a matter,
(b)  an unexercised right to apply to an existing tribunal for a review of a decision of another person or body,
(c)  an unexercised right to appeal to an existing tribunal against a decision of another person or body.
(2)  A person who has an existing unexercised application or appeal right may apply or appeal to NCAT for the exercise of the same functions that could have been exercised by the existing tribunal to which the right relates had the existing tribunal not been abolished.
Note—
An application or appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for making the application or appeal will continue to apply to applications or appeals under this clause. See subclause (3).
(3)  For the purposes of subclause (2):
(a)  NCAT has and may exercise all the functions that the relevant existing tribunal would have had in relation to the application or appeal if it had been made before the establishment day (including any functions relating to the granting of leave to apply or appeal), and
(b)  the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to apply or appeal) that would have applied to or in respect of the application or appeal had this Act and the relevant amending Acts not been enacted continue to apply.
10   Certain unexercised rights to appeal against decisions of existing tribunals may continue to be exercised
(1)  This clause applies to each of the following unexercised rights (an existing unexercised appeal right):
(a)  an unexercised right to appeal against a decision of the Administrative Decisions Tribunal or another tribunal or body to an Appeal Panel of that Tribunal,
(b)  an unexercised right to appeal against a decision of an existing tribunal to a court.
(2)  A person who has an existing unexercised appeal right may appeal against the decision of an existing tribunal to which that right relates:
(a)  if the decision was originally appealable to an Appeal Panel of the Administrative Decisions Tribunal—to an Appeal Panel of NCAT, or
(b)  if it was originally appealable to a particular court—to that court.
Note—
An appeal under this clause that would have required leave before the establishment day will still require such leave. Also, any time limits under existing law for appealing will continue to apply to appeals under this clause. See subclauses (3) and (4).
(3)  For the purposes of an appeal made to an Appeal Panel of NCAT under this clause:
(a)  the Appeal Panel has and may exercise all the functions that an Appeal Panel of the Administrative Decisions Tribunal would have had in relation to the appeal if it had been made before the establishment day (including any functions relating to the granting of leave to appeal), and
(b)  the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to appeal) that would have applied to or in respect of the appeal had this Act and the relevant amending Acts not been enacted continue to apply.
(4)  For the purposes of an appeal made to a court under this clause:
(a)  the court continues to have and may exercise all the functions that the court would have had if the appeal had been made to it before the establishment day (including any functions relating to the granting of leave to appeal), and
(b)  the provisions of any Act, statutory rule or other law (including provisions concerning the time within which to appeal) that would have applied to or in respect of such an appeal had this Act and the relevant amending Acts not been enacted continue to apply.
(5)  Without limiting subclauses (3) and (4), if the original powers of an Appeal Panel of the Administrative Decisions Tribunal or a court (as the case requires) would have included the power to remit the proceedings to be heard and decided again by the existing tribunal concerned, the Appeal Panel of NCAT or court may in determining an appeal under this clause:
(a)  remit the proceedings instead to NCAT, and
(b)  make such other orders as it considers appropriate to facilitate the remitting of the proceedings to NCAT.
Subdivision 4 Reviews of certain existing orders and renewal of certain proceedings
11   Reviews of existing orders under Guardianship Act 1987
(1)  This clause applies to each of the following kinds of orders under the Guardianship Act 1987:
(a)  a guardianship order,
(b)  a financial management order,
(c)  an order appointing a person as the manager of a protected person’s estate.
(2)  Without limiting clause 14, the provisions of the Guardianship Act 1987 that enable NCAT to make an order to which this clause applies are taken to extend to any such order made by the Guardianship Tribunal before the establishment day as if NCAT had made that order.
12   Renewal of proceedings before CTTT
Without limiting clause 14, the provisions of clause 8 (Renewal of proceedings in respect of certain Division decisions) of Schedule 4 are taken to extend to an order made by the Consumer, Trader and Tenancy Tribunal before the establishment day as if the order had been made by NCAT in exercise of functions allocated to the Consumer and Commercial Division of NCAT.
Subdivision 5 Allocation of transitional proceedings and enforcement of existing orders
13   Allocation of transitional proceedings to Divisions of the Tribunal
(1)  This clause applies to any proceedings (transitional proceedings) that:
(a)  are permitted or required to be determined by NCAT under this Division instead of an abolished existing tribunal, or
(b)  are remitted by a court or an Appeal Panel of NCAT under this Division to NCAT for reconsideration or redetermination.
(2)  Unless the regulations provide otherwise, the function of determining transitional proceedings is allocated to the Divisions of the Tribunal as follows:
(a)  if NCAT is determining the proceedings instead of the Consumer, Trader and Tenancy Tribunal or is determining proceedings under the Dividing Fences Act 1991 or Retail Leases Act 1994 instead of a local land board or the Administrative Decisions Tribunal—the proceedings are allocated to the Consumer and Commercial Division,
(b)  if NCAT is determining the proceedings instead of the Guardianship Tribunal—the proceedings are allocated to the Guardianship Division,
(c)  if NCAT is determining the proceedings instead of an Appeal Panel of the Administrative Decisions Tribunal—the proceedings are not allocated to any particular Division of the Tribunal in accordance with section 16 (4),
(d)  if NCAT, in determining the proceedings, would be required to exercise functions under legislation that correspond (or substantially correspond) to functions that are now allocated to the Occupational Division—the proceedings are allocated to the Occupational Division,
(e)  if NCAT is determining any other proceedings instead of an existing tribunal—the proceedings are allocated to the Administrative and Equal Opportunity Division.
(3)  Despite anything to the contrary in this Act or other legislation, the President is, where practicable, to constitute NCAT for the purposes of transitional proceedings (other than part heard proceedings) in a manner that is consistent with the constitution requirements that would have been applicable for the kind of proceedings in the existing tribunal concerned.
Note—
For constitution requirements in relation to part heard transitional proceedings, see clause 7 (2).
14   Orders of existing tribunals
(1)  An existing order of an existing tribunal made under other legislation is taken, on and from the establishment day, to be an order made by NCAT under the corresponding provision of that legislation (as amended by a relevant amending Act) or this Act (as the case may be).
(2)  This clause is subject to the other provisions of this Schedule.
(3)  In this clause:
existing order of an existing tribunal is an order made by the tribunal before the establishment day, and includes an order that would have come into effect on or after the establishment day.
[34]   Schedule 1
Insert before existing clause 9 in Division 4 of Part 2:
  
15   Making of first principal Regulation
Part 2 of the Subordinate Legislation Act 1989 is taken to apply to the first principal regulation (within the meaning of that Act) that is made under this Act as if the Minister administering the Subordinate Legislation Act 1989 had given a certificate under section 6 (1) (b) of that Act with respect to the regulation.
[35]   Schedule 1
Renumber existing clause 9 as clause 16.
[36]   Schedule 1
Omit existing clause 10. Insert instead:
  
17   Updating references to abolished existing tribunals and their functions
(1) Legislative provisions to which clause applies This clause applies to a provision (an affected legislative provision) of any other Act or any instrument made under any other Act (whether enacted or made before or after the commencement of this clause) other than an excluded provision.
(2)  Each of the following is an excluded provision for the purposes of subclause (1):
(a)  a provision of this Act or an instrument made under this Act,
(b)  a provision of the Administrative Decisions Review Act 1997 or an instrument made under that Act,
(c)  a provision of the Public Sector Employment and Management Act 2002 or Government Sector Employment Act 2013 or an instrument made under either Act,
(d)  a provision of a relevant amending Act,
(e)  a provision of any other Act or instrument made under any other Act that contains a reference to which this clause would otherwise have applied if that reference was inserted or substituted by, or retained despite, an amendment made to the provision by a relevant amending Act,
(f)  a spent savings or transitional provision of any other Act or an instrument made under any other Act,
(g)  a provision of an Act or instrument made under an Act (or a provision belonging to a class of such provisions) prescribed by the regulations.
(3) References to existing tribunals A reference in an affected legislative provision to an existing tribunal is to be read, on and from the applicable day, as a reference to NCAT.
(4) References to members of existing tribunals A reference in an affected legislative provision to a particular kind of member of an existing tribunal is to be read, on and from the applicable day, as a reference to the corresponding member, if any, of NCAT (as set out in the Table to clause 5).
(5) References to Administrative Decisions Tribunal Act 1997 A reference in an affected legislative provision to the Administrative Decisions Tribunal Act 1997 is to be read, on and from the applicable day, as a reference to the Administrative Decisions Review Act 1997.
(6) References to renumbered, relocated or repealed provisions A reference in an affected legislative provision to a provision of legislation that is renumbered, relocated or repealed by a relevant amending Act is to be read, on and from the applicable day, as:
(a)  for a provision of legislation that is renumbered—a reference to the provision as renumbered, or
(b)  for a provision that is relocated or repealed—a provision (if any) of this Act, the Administrative Decisions Review Act 1997 or legislation amended by a relevant amending Act that corresponds, or substantially corresponds, to the provision.
(7) References to functions of existing tribunals Without limiting subclauses (2)–(6), an affected legislative provision that confers or imposes a function on an existing tribunal is to be read, on and from the applicable day, as conferring or imposing the function instead on NCAT.
(8)  For the purposes of applying subclause (7), a reference to a review of a decision by the Administrative Decisions Tribunal is to be read as a reference to an administrative review of the decision by NCAT under the Administrative Decisions Review Act 1997.
(9)  Unless the regulations provide otherwise, the provisions of clause 13 (2) and (3) apply to functions that are conferred or imposed on NCAT by operation of this clause in the same way as they apply to the function of determining transitional proceedings under clause 13.
(10) Regulation-making powers The regulations may:
(a)  make provision, despite this clause, for or with respect to the updating of references in any document (including a document containing an affected legislative provision) to an existing tribunal or its functions with references to NCAT and corresponding functions and provisions, or
(b)  declare whether a specified provision is, or is not, a corresponding provision for the purposes of subclause (6) (b), or
(c)  without limiting clause 1, make provision for savings or transitional matters consequent on the operation of this clause or a regulation made for the purposes of this clause (including the allocation of functions that are transferred to NCAT by operation of this clause to Divisions of NCAT).
(11) Definition In this clause:
applicable day means:
(a)  in relation to an affected legislative provision that is in force or effect on the establishment day—the establishment day, or
(b)  in relation to an affected legislative provision that comes into force or effect after the establishment day—the day on which the provision comes into force or effect.
18   Amendments concerning Divisions of NCAT
The renaming of a Division of NCAT, or the substitution of a Division Schedule for a Division of NCAT, by a relevant amending Act does not affect the validity of any appointment, assignment or designation of a person made with respect to the Division before that renaming or substitution.
[37]   Schedule 1
Renumber existing clause 11 as clause 19.
[38]   Schedule 2 Provisions relating to members
Omit “the Registrar, a Deputy Registrar” and “regulations or the Tribunal rules” wherever occurring in clause 12.
Insert instead “a registrar” and “procedural rules”, respectively.
[39]   Schedule 3
Omit the Schedule. Insert instead:
  
Schedule 3 Administrative and Equal Opportunity Division
Part 1 Interpretation
1   Definitions
(1)  In this Schedule:
Division decision means a decision of the Tribunal in exercise of a Division function.
Division function means a function of the Tribunal allocated to the Division by this Schedule.
Division Head means the Division Head of the Division.
Division member means a member who is assigned to the Division.
substantive Division function means a Division function other than:
(a)  a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal, or
(b)  a Division function exercised by a registrar.
the Division means the Administrative and Equal Opportunity Division of the Tribunal.
(2)  Except as otherwise provided by this Schedule, a provision of this Schedule that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made.
Part 2 Composition of Division
2   Division members
The Division is to be composed of the following members:
(a)  the Division Head,
(b)  such other members as may be assigned to the Division by or under this Act.
Part 3 Functions of Division
3   Functions allocated to Division
(1)  The following functions of the Tribunal are allocated to the Division:
(b)  any other function of the Tribunal in relation to legislation that is not specifically allocated to any other Division of the Tribunal by another Division Schedule for a Division.
(2)  The functions allocated to the Division by subclause (1) include:
(a)  any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and
(b)  any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal), and
(c)  in relation to the exercise of administrative review jurisdiction in this Division—any functions conferred or imposed on the Tribunal by or under the Administrative Decisions Review Act 1997 in connection with the exercise of such jurisdiction.
Part 4 Special constitution requirements
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.
The Tribunal, when exercising its substantive Division functions for the purposes of the Anti-Discrimination Act 1977, is to be constituted by:
(a)  1 Division member who is an Australian lawyer, or
(b)  2 or more Division members (with at least one being an Australian lawyer).
5   Combat sports
The Tribunal, when exercising its substantive Division functions for the purposes of the Combat Sports Act 2008 or Combat Sports Act 2013, is to be constituted by 1 Division member who is an Australian lawyer.
The Tribunal, when exercising its substantive Division functions for the purposes of the Dormant Funds Act 1942, is to be constituted by:
(a)  1 Division member who is an Australian lawyer, or
(b)  2 or more Division members (with at least one being an Australian lawyer).
The Tribunal, when exercising its substantive Division functions for the purposes of the Education Act 1990, is to be constituted by:
(a)  1 Division member who is an Australian lawyer, or
(b)  2 or more Division members (with at least one being an Australian lawyer).
(1)  The Tribunal, when exercising its substantive Division functions for the purposes of section 64 of the Public Health Act 2010, is to be constituted by one Division member who is an Australian lawyer.
(2)  The Tribunal, when exercising its substantive Division functions for the purposes of section 7, 65 or 66 of that Act, is to be constituted by 3 Division members as follows:
(a)  1 presidential member,
(b)  1 member who is an Australian lawyer,
(c)  1 member who is a registered medical practitioner with experience in public health matters.
Part 5 Special practice and procedure
9   Rights of representation and appearance
(1)  Despite section 45 of this Act, a party to proceedings for the exercise of a Division function (other than for the purposes of the Community Services (Complaints, Reviews and Monitoring) Act 1993) is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.
Note—
The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.
(2)  The Ombudsman has a right to appear in proceedings for the purposes of the Community Services (Complaints, Reviews and Monitoring) Act 1993 before the Tribunal in order to assist the Tribunal (otherwise than as a party in proceedings).
(3)  The Director-General (within the meaning of the Teaching Service Act 1980) is entitled to appear and be represented at any proceedings arising out of an administrative review application made by a person under Part 4 of the Child Protection (Working with Children) Act 2012.
(4)  The following persons have a right to appear and be heard in proceedings for the exercise of a Division function for the purposes of the Government Information (Public Access) Act 2009:
(a)  the Information Commissioner,
(b)  the Privacy Commissioner,
(c)  any person who could be aggrieved by a decision of the Tribunal on an administrative review on an application made under Division 4 of Part 5 of that Act.
10   Parties to proceedings relating to complaint under Anti-Discrimination Act 1977
(1)  The parties to proceedings before the Tribunal relating to a complaint under the Anti-Discrimination Act 1977 are:
(a)  the complainant who, for the purposes of that Act, is taken to be the applicant, and
(b)  the respondent, and
(c)  any other person who has been made a party to the proceedings under this Act, and
(d)  the Attorney General if the Attorney General intervenes under this Act.
(2)  Without limiting section 44 of this Act, the Tribunal may substitute a complainant or respondent if the Tribunal is of the opinion that the other parties to the proceedings will not be prejudiced by the substitution.
(3)  The Tribunal may remove or agree to the withdrawal of a complainant from proceedings if the Tribunal is satisfied that the complainant does not wish to proceed with the complaint.
11   Non-disclosure orders for Public Health Act 2010
(1)  This clause applies to proceedings for the exercise of a Division function for the purposes of Division 4 (Public health orders for Category 4 and 5 conditions) of Part 4 of the Public Health Act 2010.
(2)  If an application for an order under section 64 (Tribunal may restrict disclosures concerning proceedings) of this Act is made by a party to proceedings to which this clause applies, the onus is on the other party to show cause why the application should be refused.
12   Costs for Dormant Funds Act 1942
(1)  Despite section 60 (1) and (2) of this Act, the Tribunal may, in its discretion, award costs in relation to proceedings for the exercise of a Division function for the purposes of the Dormant Funds Act 1942.
(2)  Without limiting section 60 (4) of this Act, the Tribunal may determine that costs are to be paid out of the fund to which such proceedings relate.
(3)  The Tribunal may, in determining the costs in relation to a successful appeal for the purposes of section 15B of Dormant Funds Act 1942 against a determination of the Commissioner of Dormant Funds, order the trustees of the fund to which the appeal relates to pay out of the fund the costs incurred by the Commissioner before the appeal in making the determination.
(4)  Costs payable out of a fund because of an order made under subclause (3) must not exceed 1% of the value of the fund (as determined by the Tribunal).
(5)  In this clause:
costs includes the costs of, or incidental to, proceedings.
fund has the same meaning as in the Dormant Funds Act 1942.
13   Costs not to be awarded for certain proceedings
Despite section 60 of this Act, the Tribunal may not award costs in proceedings for any of the following Division decisions:
(a)  a decision for the purposes of the Commission for Children and Young People Act 1998,
(b)  a decision for the purposes of the Child Protection (Working with Children) Act 2012,
(c)  an administrative review decision for the purposes of the Victims Rights and Support Act 2013.
Part 6 Appeals
Division 1 External appeals
14   External appeals under lands legislation
(1)  Except as otherwise provided by the lands legislation, an external appeal made under that legislation:
(a)  may be made without requiring the leave of the Tribunal concerning the grounds for the appeal, and
(b)  is to be by way of a rehearing.
(2)  Fresh evidence, or evidence in addition to or in substitution for the evidence received by the external decision-maker, may be given in the appeal with the leave of the Tribunal.
Division 2 Appeals against certain Division decisions
15   Division decisions that are not internally appealable
Despite section 32 of this Act, each of the following Division decisions is not an internally appealable decision for the purposes of an internal appeal:
(a)  a decision of the Tribunal for the purposes of section 96 of the Anti-Discrimination Act 1977 with respect to the granting of leave for the purposes of that section,
(b)  a Division decision for the purposes of the Child Protection (Working with Children) Act 2012,
(c)  a Division decision for the purposes of the Commission for Children and Young People Act 1998,
(d)  a Division decision for the purposes of the lands legislation,
(e)  a determination of the Tribunal for the purposes of Part 7 of the Native Title (New South Wales) Act 1994,
(f)  an administrative review decision for the purposes of section 21 of the Plant Diseases Act 1924,
(g)  an administrative review decision for the purposes of section 51 of the Victims Rights and Support Act 2013.
16   Appeals against interim orders under Anti-Discrimination Act 1977 with leave only
Despite section 80 (2) of this Act, an internal appeal against an interim order of the Tribunal under the Anti-Discrimination Act 1977 may only be made with the leave of the Appeal Panel even if it is on a question of law.
17   Certain decisions to be appealed directly to Supreme Court
(1)  A party to proceedings in which any of the following decisions is made may appeal to the Supreme Court on a question of law against the decision:
(a)  a Division decision for the purposes of the Child Protection (Working with Children) Act 2012,
(b)  a Division decision for the purposes of the Commission for Children and Young People Act 1998.
Note—
Internal appeals against such decisions are not available because of clause 15. See also section 84 (Practice and procedure for appeals to courts under this Act).
(2)  The Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following:
(a)  an order affirming, varying or setting aside the decision under appeal,
(b)  an order varying the decision under appeal,
(c)  an order setting aside the decision under appeal and, if it considers appropriate, making a decision in substitution of that decision,
(d)  an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the Supreme Court.
(3)  Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court does not affect the operation of the decision under appeal or prevent the taking of action to implement the decision.
18   Decisions under lands legislation to be appealed directly to Land and Environment Court
(1)  A party to proceedings in which a Division decision is made for the purposes of the lands legislation may appeal to the Land and Environment Court against the decision.
Note—
Internal appeals against these decisions are not available because of clause 15.
(2)  Subject to any interlocutory order made by the Land and Environment Court, an appeal to the Land and Environment Court does not affect the operation of the decision under appeal or prevent the taking of action to implement the decision.
[40]   Schedule 4
Omit the Schedule. Insert instead:
  
Schedule 4 Consumer and Commercial Division
Part 1 Interpretation
1   Definitions
In this Schedule:
Division decision means a decision of the Tribunal in exercise of a Division function.
Division function means a function of the Tribunal allocated to the Division by this Schedule.
Division Head means the Division Head of the Division.
Division member means a member who is assigned to the Division.
substantive Division function means a Division function other than:
(a)  a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal, or
(b)  a Division function exercised by a registrar.
the Division means the Consumer and Commercial Division of the Tribunal.
Part 2 Composition of Division
2   Division members
(1)  The Division is to be composed of the following members:
(a)  the Division Head,
(b)  such other members as may be assigned to the Division by or under this Act.
(2)  The Minister may not recommend the appointment of a person as the Division Head unless the Minister certifies that the Minister has consulted with the Minister for Fair Trading about the appointment.
Part 3 Functions of Division
3   Functions allocated to Division
(1)  The functions of the Tribunal in relation to the following legislation are allocated to the Division:
Australian Consumer Law (NSW)
Conveyancers Licensing Act 2003 (but only in relation to Division 3 of Part 4 of that Act)
(2)  Subclause (1) extends to:
(a)  any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and
(b)  any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal).
(3)  However, the functions allocated to the Division do not include:
(a)  any functions of the Tribunal involving the exercise of its administrative review jurisdiction, or
(b)  any functions of the Tribunal allocated to the Occupational Division of the Tribunal.
Note—
Functions that are not expressly allocated to this Division or another Division are allocated to the Administrative and Equal Opportunity Division. See clause 3 (1) of Schedule 3.
Part 4 Special constitution requirements
Note—
If special constitution requirements for the exercise of a Division function are not specified by the following provisions, the Tribunal may be constituted in accordance with the general provisions of section 27 of this Act. The Tribunal may also be constituted in accordance with the general provisions of that section in connection with the exercise of Division functions for the purposes of making ancillary or interlocutory decisions of the Tribunal.
(1)  The Tribunal, when exercising its substantive Division functions for the purposes of the Retail Leases Act 1994, is to be constituted by 1 Division member who is an Australian lawyer.
(2)  For this purpose, the Tribunal may (but need not) be assisted by 2 other members, in an advisory capacity only, consisting of:
(a)  a member who has experience as a lessor, or working on behalf of lessors, under retail shop leases, and
(b)  a member who has experience as a lessee, or working on behalf of lessees, under retail shop leases.
(3)  A member assisting the Tribunal under this clause is not to adjudicate on any matter before the Tribunal.
(4)  Terms used in this clause that are defined in the Retail Leases Act 1994 have the same meanings as in that Act.
Part 5 Special practice and procedure
5   Relationship between Tribunal and courts and other bodies in connection with Division functions
(1) Meaning of “court” For the purposes of this clause, court means any court, tribunal, board or other body or person (other than one referred to in subclause (2)) that:
(a)  is empowered under any other Act, or
(b)  by consent of, or agreement between, 2 or more persons has authority,
to decide or resolve any issue that is in dispute, whether through arbitration or conciliation or any other means.
(2)  However, court does not, for the purposes of this clause, include:
(a)  a court, tribunal, board or other body or person that, in relation to a particular matter, is empowered by law to impose a penalty, admonition or other sanction for a contravention of a law or for misconduct or breach of discipline proved to have been committed in connection with that matter but is not empowered to award or order compensation or damages in respect of that matter, or
(b)  the Fair Trading Administration Corporation constituted under Part 7 of the Home Building Act 1989, or
(c)  the Ombudsman, or
(d)  any person exercising the functions of an ombudsman under any law of the Commonwealth, or
(e)  any person authorised, under a law of the State or of the Commonwealth or of another State or a Territory, to make decisions or orders, or give directions, that are binding only on one party to a dispute.
(3) Effect of application to Tribunal or court If, at the time when an application was made to the Tribunal for the exercise of a Division function, no issue arising under the application was the subject of a dispute in proceedings pending before a court, a court has no jurisdiction to hear or determine such an issue.
(4)  Subclause (3) ceases to apply to the extent to which the application concerned is dismissed for want of jurisdiction or withdrawn.
(5)  Subclause (3) does not prevent a court from hearing and determining any proceedings in which it is claimed that any order, determination or ruling of the Tribunal in exercise or purported exercise of a Division function is invalid for want of jurisdiction or from making any order as a consequence of that finding.
(6)  For the purposes of subclause (3), an issue arises under an application made to the Tribunal for the exercise of a Division function only if the existence of the issue is shown in the applicant’s claim or is recorded in the record made by the Tribunal in accordance with this Act.
(7) Effect of pending court proceedings on Tribunal If, at the time when an application is made to the Tribunal for the exercise of a Division function, an issue arising under the application was the subject of a dispute in proceedings pending before a court, the Tribunal, on becoming aware of those proceedings, ceases to have jurisdiction to hear or determine the issue.
(8)  Subclause (7) ceases to apply to the extent to which the proceedings concerned are dismissed or quashed by the court, or by another court, for want of jurisdiction or without deciding the issue on its merits, or withdrawn.
(9) Evidence from court proceedings In proceedings on an application to the Tribunal for the exercise of a Division function, a finding or decision made by a court, tribunal, board, body or person referred to in subclause (2) is admissible as evidence of the finding or decision.
(10) Clause prevails over other law This clause has effect despite Part 3 of this Act or any other Act or law to the contrary.
6   Transfer of proceedings to courts or to other tribunals
(1)  If the parties in any proceedings for the exercise of a Division function so agree, or if the Tribunal of its own motion or on the application of a party so directs, the proceedings are:
(a)  to be transferred to a court (in accordance with the rules of that court) that has jurisdiction in the matter, and
(b)  to continue before that court as if the proceedings had been instituted there.
(2)  If the parties in any proceedings that have been instituted in a court so agree, or if the court of its own motion or on the application of a party so directs, the proceedings are, if the proceedings relate to a matter for which the Tribunal has jurisdiction to exercise a Division function:
(a)  to be transferred to the Tribunal in accordance with the procedural rules (if any), and
(b)  to continue before the Tribunal as if the proceedings had been instituted in the Tribunal.
7   Rights of representation
Despite section 45 of this Act:
(a)  a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal if the party has been granted legal assistance under Division 2 of Part 2 of the Fair Trading Act 1987, and
(b)  a party to proceedings for the exercise of a Division function for the purposes of the Retail Leases Act 1994 is entitled to be represented by an Australian lawyer or other agent without requiring the leave of the Tribunal.
Note—
The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.
8   Renewal of proceedings in respect of certain Division decisions
(1)  If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.
(2)  If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.
(3)  The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.
(4)  When proceedings have been renewed in accordance with this clause, the Tribunal:
(a)  may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or
(b)  may refuse to make such an order.
(5)  This clause does not apply if:
(a)  the operation of an order has been suspended, or
(b)  the order is or has been the subject of an internal appeal.
9   Assistance to Tribunal
(1)  The Tribunal or principal registrar may, in relation to any proceedings for the exercise of a Division function, request a report or other assistance from the Commissioner for Fair Trading.
(2)  This clause does not limit the ability of the Tribunal to obtain reports or assistance from other persons or bodies.
10   Proceedings causing disadvantage
(1)  The Tribunal may exercise the powers conferred by this clause if the Tribunal is of the opinion that a party in any proceedings for the exercise of a Division function is conducting the proceedings in such a way that unreasonably disadvantages another party in the proceedings by any conduct (including by failing to comply with an order or direction of the Tribunal).
(2)  The Tribunal may:
(a)  if the party causing the disadvantage is the applicant—order that the proceedings (or part of the proceedings) be dismissed or struck out, or
(b)  if the party causing the disadvantage is not the applicant:
(i)  determine the proceedings (or part of 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 (or part of the proceedings).
(3)  Before making any order under subclause (2) against a party, the Tribunal is to have regard to the following:
(a)  the extent to which the party is familiar with the procedures of the Tribunal,
(b)  the party’s capacity to understand, and act on, a direction of the Tribunal,
(c)  whether the party suffers from a disability,
(d)  whether the party is acting deliberately in failing to comply with the Tribunal’s directions.
(4)  The provisions of this clause are in addition to, and do not limit, the provisions of section 55 (Dismissal of proceedings) of this Act.
11   Costs in relation to certain retail lease proceedings
For the avoidance of doubt, section 60 of this Act does not apply to costs of a review under section 32A (1) of the Retail Leases Act 1994.
Part 6 Appeals
12   Limitations on internal appeals against Division decisions
(1)  An Appeal Panel may grant leave under section 80 (2) (b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because:
(a)  the decision of the Tribunal under appeal was not fair and equitable, or
(b)  the decision of the Tribunal under appeal was against the weight of evidence, or
(c)  significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).
Note—
Under section 80 of this Act, a party to proceedings in which a Division decision that is an internally appealable decision is made may appeal against the decision on a question of law as of right. The leave of the Appeal Panel is required for an internal appeal on any other grounds.
(2)  Despite section 80 (2) (b) of this Act, an internal appeal against a Division decision may only be made on a question of law (as of right) and not on any other grounds (even with leave) if:
(a)  the appellant is a corporation and the appeal relates to a dispute in respect of which the Tribunal at first instance had jurisdiction because of the operation of Schedule 3 to the Credit (Commonwealth Powers) Act 2010, or
(b)  the appeal is an appeal against an order of the Tribunal for the termination of a tenancy under the Residential Tenancies Act 2010 and a warrant of possession has been executed in relation to that order.
[41]   Schedule 5
Omit the Schedule. Insert instead:
  
Schedule 5 Occupational Division
Part 1 Interpretation
1   Definitions
(1)  In this Schedule:
Division decision means a decision of the Tribunal in exercise of a Division function.
Division function means a function of the Tribunal allocated to the Division by this Schedule.
Division Head means the Division Head of the Division.
Division member means a member who is assigned to the Division.
substantive Division function means a Division function other than:
(a)  a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal, or
(b)  a Division function exercised by a registrar.
the Division means the Occupational Division of the Tribunal.
(2)  Except as otherwise provided by this Schedule, a provision of this Schedule that provides for, or limits or excludes, an appeal against a decision of the Tribunal that is made for the purposes of specified legislation (or a specified provision of legislation) is taken to extend to any ancillary or interlocutory decision of the Tribunal in the proceedings in which that decision was made.
Part 2 Composition of Division
2   Division members
The Division is to be composed of the following members:
(a)  the Division Head,
(b)  such other members as may be assigned to the Division by or under this Act.
3   Appointment of Division Head
The Minister may not recommend the appointment of a person as the Division Head unless the Minister certifies that the Minister has consulted with the Minister for Health about the appointment.
Part 3 Functions of Division
4   Functions allocated to Division
(1)  The functions of the Tribunal in relation to the following legislation are allocated to the Division:
Conveyancers Licensing Act 2003 (except in relation to Division 3 of Part 4 of that Act)
Note—
The functions allocated by this subclause include the function of exercising the administrative review jurisdiction of the Tribunal in relation to the specified legislation.
(2)  Without limiting subclause (1), the function of exercising the administrative review jurisdiction of the Tribunal in relation to the following legislation is also allocated to the Division:
(3)  The functions allocated to the Division by subclauses (1) and (2) include:
(a)  any functions under the provisions of the Licensing and Registration (Uniform Procedures) Act 2002 that confer administrative review jurisdiction on the Tribunal to the extent that those provisions are applied by legislation referred to in those subclauses to decisions made under that legislation, and
(b)  any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in those subclauses, and
(c)  any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by those subclauses (including the making of ancillary and interlocutory decisions of the Tribunal), and
(d)  in relation to the exercise of administrative review jurisdiction in this Division—any functions conferred or imposed on the Tribunal by or under the Administrative Decisions Review Act 1997 in connection with the exercise of such jurisdiction.
Part 4 Special provisions relating to occupations
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.
Division 1 Architects
5   Division functions under Architects Act 2003
(1)  The Tribunal, when exercising its substantive Division functions for the purposes of the Architects Act 2003, is to be constituted by 3 Division members as follows:
(a)  1 member who is an Australian lawyer,
(b)  1 member who is an architect but not an Australian lawyer,
(c)  1 general member who is neither an architect nor an Australian lawyer.
(2)  In this clause:
architect has the same meaning as in the Architects Act 2003.
Division 2 Councillors and designated persons
6   Constitution of Tribunal for Aboriginal Land Rights Act 1983 and Local Government Act 1993
(1)  Except as provided by subclause (2), the Tribunal, when exercising its substantive Division functions for the purposes of the Aboriginal Land Rights Act 1983 or Local Government Act 1993, is to be constituted by one Division member who is an Australian lawyer of at least 7 years’ standing.
(2)  The Tribunal, when exercising its substantive Division functions for the purposes of section 329 of the Local Government Act 1993, is to be constituted by 3 Division members.
(3)  However, a Division member is not qualified to participate in proceedings for the exercise of substantive Division functions for the purposes of the Aboriginal Land Rights Act 1983 or Local Government Act 1993 if:
(a)  in the case of the exercise of functions for the purposes of the Aboriginal Land Rights Act 1983—the member has, within 12 months before participation, been an officer or a member of staff of an Aboriginal Land Council or a councillor (within the meaning of that Act), or
(b)  in the case of the exercise of functions for the purposes of the Local Government Act 1993—the member has, within 12 months before participation, been a councillor or employee of a council (within the meaning of that Act).
7   Privilege concerning answers and documents
(1)  This clause applies to proceedings for the exercise of Division functions for the purposes of the Aboriginal Land Rights Act 1983 or Local Government Act 1993 despite section 46 of this Act.
(2)  A witness summoned to attend or appearing before the Tribunal at a hearing for proceedings to which this clause applies is not excused from answering any question or producing any document or other thing:
(a)  on the ground that the answer or production may incriminate the witness, or
(b)  on any other ground of privilege, or
(c)  on the ground of a duty of secrecy or other restriction on disclosure, or
(d)  on any other ground.
(3)  An answer made, or document or other thing produced, by a witness at a hearing before the Tribunal is not (except as otherwise provided by this clause) admissible in evidence against the witness in any civil or criminal proceedings or in any disciplinary proceedings.
(4)  Nothing in this clause makes inadmissible:
(a)  any answer, document or other thing in any civil or criminal proceedings or in any disciplinary proceedings if the witness does not object to giving the answer or producing the document or other thing irrespective of the provisions of subclause (1), or
(b)  any document in any civil proceedings for or in respect of any right or liability conferred or imposed by the document or other thing.
(5)  If:
(a)  an Australian legal practitioner or other person is required to answer a question or produce a document or other thing at a hearing before the Tribunal, and
(b)  the answer to the question would disclose, or the document or other thing contains, a privileged communication passing between the practitioner (in his or her capacity as an Australian legal practitioner) and a person for the purpose of providing or receiving legal professional services in relation to the appearance, or reasonably anticipated appearance, of a person at a hearing before the Tribunal,
the Australian legal practitioner or other person is entitled to refuse to comply with the requirement, unless the privilege is waived by a person having authority to do so.
Division 3 Health practitioners
8   Definitions
In this Division:
health practitioner has the same meaning as in the National Law, and includes a student within the meaning of that Law.
Health Practitioner Division List—see clause 10.
9   Certain objectives and principles under National Law to be applied
(1)  The Tribunal, when exercising its Division functions for the purposes of the National Law, is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law.
(2)  The provisions of this clause are in addition to, and do not limit, the provisions of section 36 (5) of this Act.
10   Establishment of Health Practitioner Division List
(1)  A Health Practitioner Division List is established on the establishment day as a Division List for the Division.
(2)  Except as provided by subclause (3), all proceedings involving the exercise of a Division function in relation to the National Law are to be entered and managed in the Health Practitioner Division List.
(3)  Proceedings involving the exercise of the administrative review jurisdiction of the Tribunal are not to be entered and managed in the Health Practitioner Division List.
Note—
See clause 13 of Schedule 5F to the National Law.
11   List Manager of Health Practitioner Division List
(1)  A Division member is to be designated as the List Manager for the Health Practitioner Division List, but only on the recommendation of the Minister for Health.
(2)  A Division member is qualified to be designated as the List Manager for the Health Practitioner Division List only if the member is an Australian lawyer of at least 7 years’ standing.
(3)  The functions of the List Manager for the Health Practitioner Division List are:
(a)  to manage the proceedings that are entered in the List, and
(b)  to give directions concerning the constitution of the Tribunal for proceedings entered in the List (subject to any direction of the President or Division Head of the Division) as if the function of constituting the Tribunal for such proceedings had been delegated by the President to the List Manager under clause 12 of Schedule 2, and
(c)  to exercise such other functions as are conferred or imposed on the List Manager by or under this Act or the National Law.
(4)  The List Manager for the Health Practitioner Division List may delegate any of the List Manager’s functions (other than this power of delegation, but including functions relating to the management of proceedings involving any particular class of health practitioner) to another Division member who is an Australian lawyer of at least 7 years’ standing.
12   Appointment and assignment of Division members where required under National Law
The President must:
(a)  appoint a person as an occasional member for particular proceedings entered in the Health Practitioner Division List if that person has been selected for participation in the proceedings in accordance with any applicable procedures specified by or under the National Law, and
(b)  assign a term member to the Division to participate in a particular class of proceedings entered in the Health Practitioner Division List if the person has been selected for participation in that class of proceedings in accordance with any applicable procedures specified by or under the National Law.
13   Constitution of Tribunal for proceedings entered in Health Practitioner Division List
(1)  The Tribunal, when exercising a Division function in proceedings that are entered in the Health Practitioner Division List, is to be constituted (and, where necessary, reconstituted) in accordance with any applicable requirements specified by or under the National Law for the constitution of the Tribunal in proceedings of the kind concerned.
(2)  Nothing in subclause (1) limits the exercise by the List Manager for the Health Practitioner Division List (or a delegate of the List Manager) of any of the functions of the List Manager.
Note—
The National Law also makes special provision with respect to certain practice and procedure for proceedings entered in the Health Practitioner Division List.
14   Effect of amendments to Schedule by regulations
(1)  This clause applies to any amendment (a relevant amendment) made to any of the other provisions of this Schedule by regulations made for the purposes of section 17 (4) of this Act.
(2)  A relevant amendment is taken not to apply in relation to:
(a)  proceedings entered in the Health Practitioner Division List, or
(b)  the exercise of Division functions in relation to such proceedings, or
(c)  appeals against Division decisions made in such proceedings.
(3)  The provisions of this Schedule continue to apply in relation to such proceedings, functions and appeals as if the relevant amendment had not been made.
(4)  Nothing in this clause affects that application of amendments made to this Schedule by an Act.
Division 4 Lawyers and public notaries
15   Definitions
In this Division:
Bar Association means the New South Wales Bar Association.
barrister has the same meaning as in the Legal Profession Act 2004.
Commissioner means the Legal Services Commissioner appointed under Part 7.3 of the Legal Profession Act 2004.
complaint means a complaint under Chapter 4 of the Legal Profession Act 2004.
Council means the Council of the Bar Association or the Council of the Law Society.
Law Society means the Law Society of New South Wales.
senior judicial officer means any of the following:
(a)  a Judge of the Supreme Court,
(b)  a Judge of the District Court,
(c)  a judicial officer of any other court or tribunal having an equivalent status (for the purposes of Part 9 of the Constitution Act 1902) to the Supreme Court or District Court.
solicitor has the same meaning as in the Legal Profession Act 2004.
16   Designation of List Manager for Division List
The President may not designate a Division member to be the List Manager of a Division List for the Division to which proceedings for the purposes of the Legal Profession Act 2004 or Public Notaries Act 1997 are to be entered unless the President has consulted with both the Bar Association and Law Society about the designation.
17   Qualifications of Division member to participate in proceedings
(1)  This clause sets out the qualifications that Division members must have to participate in the exercise of Division functions for the purposes of the Legal Profession Act 2004 and Public Notaries Act 1997.
(2)  A Division member has a judicial qualification for the purposes of this Division if:
(a)  the member is a Deputy President who has been designated by the President as having that qualification, or
(b)  the member is a current or former senior judicial officer.
(3)  A Division member has a professional qualification for the purposes of this Division if the member is a barrister or solicitor who has been designated by the President as having that qualification.
(4)  The President may, by written instrument, designate a Division member as having a judicial qualification or professional qualification only if:
(a)  in the case of a designation of a Deputy President as having a judicial qualification—the President has consulted with both the Bar Association and Law Society about the designation, or
(b)  in the case of a designation of a Division member as having a professional qualification—the President has consulted with the Bar Association (in the case of a barrister) or the Law Society (in the case of a solicitor) about the designation.
(5)  The President may revoke a designation only if the President has consulted with the same body or bodies with which the President was required to consult in making the designation.
18   Division functions under Legal Profession Act 2004
(1)  The Tribunal, when conducting a hearing into a complaint for the purposes of the Legal Profession Act 2004, must be constituted with Division members in accordance with whichever of the following constitutions the President determines as being appropriate for the particular case:
(a)  in the case of a complaint against a barrister:
(i)  one member with a judicial qualification, one member with a professional qualification who is a barrister and one general member, or
(ii)  2 members with a professional qualification who are barristers and one general member,
(b)  in the case of a complaint against a solicitor:
(i)  one member with a judicial qualification, one member with a professional qualification who is a solicitor and one general member, or
(ii)  2 members with a professional qualification who are solicitors and one general member,
(c)  in the case of a complaint against an Australian lawyer who is neither a barrister nor a solicitor—any constitution specified in paragraph (a) or (b).
(2)  The Tribunal, when exercising any other of its Division functions for the purposes of the Legal Profession Act 2004 (including making ancillary or interlocutory decisions of the Tribunal), is to be constituted by any one or more of the following Division members:
(a)  a member with a judicial qualification,
(b)  a member with a professional qualification.
19   Division functions under Public Notaries Act 1997
The Tribunal, when exercising its substantive Division functions for the purposes of the application of Chapter 4 of the Legal Profession Act 2004 under section 14 of the Public Notaries Act 1997, is to be constituted by Division members as follows:
(a)  in the case of a complaint against a public notary who is a barrister:
(i)  one member who is an Australian lawyer of at least 7 years’ standing, and
(ii)  one member with a professional qualification who is a barrister, and
(iii)  one general member,
(b)  in the case of a complaint against a public notary who is a solicitor:
(i)  one member who is an Australian lawyer of at least 7 years’ standing, and
(ii)  one member with a professional qualification who is a solicitor, and
(iii)  one general member.
20   Rules of evidence
Despite section 38 of this Act, the Tribunal is to observe the rules of evidence in proceedings in exercise of a Division function for the purposes of the Legal Profession Act 2004 or Public Notaries Act 1997 concerning a question of professional misconduct.
21   Parties
(1)  The following persons are entitled to appear at a hearing conducted by the Tribunal for the exercise of a Division function for the purposes the Legal Profession Act 2004:
(a)  in the case of an application under section 75 of that Act for an administrative review—the applicant or the holder of an Australian practising certificate who applied for the review,
(b)  in the case of a complaint—the Australian legal practitioner against whom the complaint has been made,
(c)  the relevant Council,
(d)  the Commissioner,
(e)  the Attorney General.
(2)  The complainant for a complaint is entitled to appear at the hearing in respect of the following aspects:
(a)  those aspects of the hearing that relate to a request by the complainant for a compensation order,
(b)  without limiting paragraph (a), those aspects of the hearing that relate to a review of a decision made under section 540 (Summary conclusion of complaint procedure by caution, reprimand, compensation order or imposition of conditions) of the Legal Profession Act 2004 to reprimand or make a compensation order against the practitioner,
(c)  other aspects of the hearing, but only if the Tribunal grants leave to the complainant to appear in respect of them.
(3)  The Tribunal may grant leave to any other person to appear at the hearing if satisfied that it is appropriate for that person to appear at the hearing.
(4)  Despite section 45 of this Act (and without limiting clause 27), a person who is entitled to appear at the hearing, or who is granted leave to appear at the hearing, may:
(a)  appear personally, or
(b)  be represented by an Australian legal practitioner without requiring the leave of the Tribunal, or
(c)  be represented by any other person with the leave of the Tribunal granted under section 45 of this Act.
(5)  Any person who appears at a hearing (otherwise than as a witness) is taken to be a party to the proceedings concerned.
(6)  In this clause:
relevant Council:
(a)  in relation to an application under section 75 of the Legal Profession Act 2004—means the Council that made the decision under review or, if the decision under review was made by the Commissioner, the appropriate Council within the meaning of that Act, or
(b)  in relation to a complaint—has the same meaning as in Chapter 4 of the Legal Profession Act 2004.
22   Hearings into conduct to be conducted in public
(1)  All hearings conducted by the Tribunal into allegations of unsatisfactory professional conduct or professional misconduct for the purposes of the Legal Profession Act 2004 are to be open to the public, unless the Tribunal decides to make an order under section 49 of this Act.
(2)  In deciding whether to make an order under section 49 or 64 of this Act (and without affecting the generality of either section), the Tribunal is to have regard to the desirability of protecting from disclosure any material that is the subject of client legal privilege or any duty of confidentiality.
(3)  Without limiting the generality of section 64 of this Act:
(a)  the Tribunal may, at any stage of the proceedings for the purposes of Part 4.8 of the Legal Profession Act 2004, make orders regarding non-disclosure of information obtained under or for the purposes of that Part from or about a client of an Australian legal practitioner where the information is the subject of client legal privilege or any duty of confidentiality, and
(b)  the orders may apply to persons generally or to specified persons.
(4)  This clause has effect whether or not the client has waived the client legal privilege or the benefit of the duty of confidentiality, and whether or not the information was obtained before or after the proceedings were commenced.
23   Costs consequent of adverse conduct findings
(1)  Despite section 60 of this Act, the Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.
(2)  The Tribunal may make orders requiring an Australian legal practitioner whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that:
(a)  the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the practitioner to co-operate with the Commissioner or a Council, or
(b)  the practitioner has contravened an order of the Tribunal made in the course of the proceedings concerned, or
(c)  there is some other reason warranting the making of an order in the particular circumstances.
(3)  The Tribunal may make orders requiring payment of an Australian legal practitioner’s costs from the Public Purpose Fund (within the meaning of the Legal Profession Act 2004), but may do so only if satisfied that the practitioner did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subclause.
(4)  The Tribunal may make orders requiring an Australian legal practitioner in respect of whom proceedings are pending before the Tribunal to pay costs on an interlocutory or interim basis.
(5)  The Tribunal may make orders requiring a person to pay costs (including, as appropriate, the costs of the Commissioner, a Council, the complainant and the Australian legal practitioner against whom the complaint was made), if satisfied that:
(a)  the person, whether before or during the proceedings, failed to produce or delayed in producing any document required or requested to be produced, and
(b)  the failure or delay contributed to delay in commencing, conducting or concluding the proceedings in such a way as to warrant the making of the orders.
(6)  The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under Part 3.2 of the Legal Profession Act 2004.
(7)  An order for costs may specify the terms on which costs must be paid.
Division 5 Security activities
The Tribunal, when exercising its substantive Division functions for the purposes of section 29 of the Security Industry Act 1997, is to be constituted by 1 Division member who is an Australian lawyer.
Division 6 Veterinary practitioners
25   Division functions under Veterinary Practice Act 2003
(1)  The Tribunal, when exercising its substantive Division functions for the purposes of the Veterinary Practice Act 2003, is to be constituted by 3 Division members as follows:
(a)  1 member who is an Australian lawyer,
(b)  1 member who is a veterinary practitioner but not an Australian lawyer,
(c)  1 general member who is neither a veterinary practitioner nor an Australian lawyer.
(2)  In this clause:
veterinary practitioner has the same meaning as in the Veterinary Practice Act 2003.
26   Costs in veterinary practitioner proceedings
(1)  Despite section 60 of this Act, the Tribunal must order costs against a veterinary practitioner in proceedings for the purposes of the Veterinary Practice Act 2003 in any of the following circumstances unless the Tribunal is satisfied that exceptional circumstances exist:
(a)  if the Tribunal affirms a disciplinary finding against a practitioner in proceedings for the purposes of section 48 of the Veterinary Practice Act 2003,
(b)  if the Tribunal considers that the matter of the complaint against a veterinary practitioner has been proved, or has not been proved to the satisfaction of the Tribunal, but the Tribunal nevertheless considers that the conduct of the veterinary practitioner was sufficiently unacceptable to warrant the making of the complaint.
(2)  This clause does not limit the power of the Tribunal to order costs in proceedings for a Division decision for the purposes of that Act in other circumstances.
Part 5 Special practice and procedure for Division generally
27   Legal representation
Despite section 45 of this Act, a party to proceedings for the exercise of a Division function is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.
Note—
The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.
28   Statement of reasons of Tribunal need not contain confidential information concerning certain professionals
(1)  The Tribunal is not required to include confidential information in any statement of reasons it gives under this Act for any of the following Division decisions:
(a)  a decision for the purposes of the Architects Act 2003 concerning an architect or former architect,
(b)  a decision for the purposes of the Building Professionals Act 2005 concerning an accreditation holder or former accreditation holder,
(c)  a decision for the purposes of the Health Practitioner Regulation National Law (NSW) concerning a health practitioner or former health practitioner,
(d)  a decision for the purposes of the Legal Profession Act 2004 concerning an Australian lawyer or former Australian lawyer,
(e)  a decision for the purposes of the Veterinary Practice Act 2003 concerning a veterinary practitioner or former veterinary practitioner.
(2)  If a statement would be false or misleading if it did not include the confidential information, the Tribunal is not required to provide the statement.
(3)  When confidential information is not included in the statement of a decision provided to a person or the statement is not provided to a person because of this clause, the Tribunal must give a confidential information notice to the person.
(4)  A confidential information notice is a notice that indicates that confidential information is not included or that the statement will not be provided (as appropriate) and gives the reasons for this. The notice must be in writing and must be given within one month after the decision is made.
(5)  This clause does not affect the power of a court to make an order for the discovery of documents or to require the giving of evidence or the production of documents to a court.
(6)  In this clause:
confidential information means information that:
(a)  has not previously been published or made available to the public when a written statement of a decision to which it is or may be relevant is being prepared, and
(b)  relates to the personal or business affairs of a person, other than a person to whom the Tribunal is required (or would, but for this clause, be required) to provide a written statement of a decision, and
(c)  is information:
(i)  that was supplied in confidence, or
(ii)  the publication of which would reveal a trade secret, or
(iii)  that was provided in compliance with a duty imposed by any legislation, or
(iv)  the provision of which by the Tribunal would be in breach of any legislation.
Part 6 Appeals
29   Certain profession decisions to be appealed directly to Supreme Court or Land and Environment Court
(1) Profession decisions not internally appealable Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal:
(a)  a decision for the purposes of the Aboriginal Land Rights Act 1983 other than:
(i)  a decision for the purposes of section 198 of that Act not to conduct proceedings into a complaint, or
(ii)  a decision for the purposes of section 199 of that Act to determine proceedings into a complaint without a hearing,
(b)  a decision for the purposes of the Architects Act 2003,
(c)  a decision for the purposes of the Building Professionals Act 2005,
(d)  a decision for the purposes of the Health Practitioner Regulation National Law (NSW) (other than a decision for the purposes of clause 13 of Schedule 5F to that Law),
(e)  a decision for the purposes of the Legal Profession Act 2004,
(f)  a decision for the purposes of the Local Government Act 1993 other than:
(i)  a decision for the purposes of section 469 of that Act not to conduct proceedings into a complaint, or
(ii)  a decision for the purposes of section 470 of that Act to determine proceedings into a complaint without a hearing,
(g)  a decision for the purposes of the Surveying and Spatial Information Act 2002,
(h)  a decision for the purposes of the Veterinary Practice Act 2003.
Note—
A Division decision other than a profession decision that is a general decision or administrative review decision may be subject to an internal appeal. See section 32 and Division 2 of Part 6 of the Act.
(2) Right to appeal to Supreme Court or Land and Environment Court However, a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to:
(a)  in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office—the Land and Environment Court, and
(b)  in the case of any other decision—the Supreme Court.
(3)  Despite subclause (2), an appeal does not lie with respect to any of the following Division decisions:
(a)  a decision made for the purposes of section 385 (2) of the Legal Profession Act 2004,
(b)  any other decision of a kind prescribed by the regulations made for the purposes of that Act.
(4) Basis or grounds for appeal An appeal to a court under this clause:
(a)  in the case of an appeal against a decision for the purposes of the Legal Profession Act 2004—is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and
(b)  in the case of any other appeal (a non-lawyer appeal)—may be made as of right on any question of law, or with the leave of the court, on any other grounds.
Note—
See also section 84 (Practice and procedure for appeals to courts under this Act).
(5)  Subclause (4) (a) does not affect the provisions of section 75A of the Supreme Court Act 1970 relating to the receipt of evidence by the Supreme Court.
(6) Leave required in certain cases Despite subclauses (2)–(5), an appeal does not lie to a court under this clause against any of the following decisions except by leave of the court:
(a)  an interlocutory decision of the Tribunal,
(b)  a decision made with the consent of the parties,
(c)  a decision as to costs.
(7) Non-lawyer appeals The court in a non-lawyer appeal may:
(a)  decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b)  permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
(8)  In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(a)  the decision under appeal to be confirmed, affirmed or varied,
(b)  the decision under appeal to be quashed or set aside,
(c)  the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(d)  the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court.
(9) Effect of appeal on profession decision Subject to any interlocutory order made by the court concerned, an appeal under this clause does not affect the operation of the Division decision under appeal or prevent the taking of action to implement the decision.
[42]   Schedule 6
Omit the Schedule. Insert instead:
  
Schedule 6 Guardianship Division
Part 1 Interpretation
1   Definitions
(1)  In this Schedule:
Division decision means a decision of the Tribunal in exercise of a Division function.
Division function means a function of the Tribunal allocated to the Division by this Schedule.
Division Head means the Division Head of the Division.
Division member means a member who is assigned to the Division.
substantive Division function means a Division function other than:
(a)  a Division function exercised in connection with the making of an ancillary or interlocutory decision of the Tribunal, or
(b)  a Division function exercised by a registrar.
the Division means the Guardianship Division of the Tribunal.
(2)  For the purposes of this Schedule:
(a)  a Division member has a professional qualification if the member is a person (such as a medical practitioner, psychologist or social worker) who has experience in assessing or treating persons to whom the Guardianship Act 1987 relates, or
(b)  a Division member has a community based qualification if the member is a person who has experience with persons to whom the Guardianship Act 1987 relates.
(3)  A Division member is taken to have a professional qualification or community based qualification for the purposes of the Schedule if the President has, by written instrument, designated the member as having that qualification.
Part 2 Composition of Division
2   Division members
The Division is to be composed of the following members:
(a)  the Division Head,
(b)  such other members as may be assigned to the Division by or under this Act.
Part 3 Functions of Division
3   Functions allocated to Division
(1)  The functions of the Tribunal in relation to the following legislation are allocated to the Division:
(2)  The functions allocated to the Division by subclause (1) include:
(a)  any functions conferred or imposed on the Tribunal by statutory rules made under legislation referred to in that subclause, and
(b)  any functions conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of proceedings for the exercise of functions allocated by that subclause (including the making of ancillary and interlocutory decisions of the Tribunal).
(3)  However, the functions allocated to the Division do not include any functions of the Tribunal involving the exercise of its administrative review jurisdiction.
Note—
Functions that are not expressly allocated to this Division or another Division are allocated to the Administrative and Equal Opportunity Division. See clause 3 (1) of Schedule 3.
Part 4 Special constitution requirements for exercise of substantive Division functions
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.
4   Constitution of Tribunal
(1)  The Tribunal, when exercising its substantive Division functions, is to be constituted by 3 Division members as follows:
(a)  1 member who is an Australian lawyer,
(b)  1 member with a professional qualification,
(c)  1 member with a community based qualification.
(2)  Despite subclause (1), the Tribunal may be constituted by 1 or 2 Division members in exercising its substantive Division functions for the purposes of the following provisions of the Guardianship Act 1987:
(a)  Division 4 (Assessment and review of guardianship orders) of Part 3,
(b)  Division 2 (Review and revocation of financial management orders) of Part 3A,
(c)  Division 3 (Review of appointment of manager) of Part 3A,
(d)  section 36 (Who may give consent) in respect of giving consent to the carrying out of minor treatment or major treatment (but not special treatment or treatment in the course of a clinical trial),
(e)  Part 5A (Reciprocal arrangements).
(3)  When the Tribunal is constituted by 2 members, each member must have qualifications (of the kind referred to in clause 1 (2)) that are different to each other.
(4)  In this clause, clinical trial, major treatment, minor treatment and special treatment have the same meanings as in Part 5 of the Guardianship Act 1987.
Part 5 Special practice and procedure
5   Certain principles under Guardianship Act 1987 to be applied
(1)  The Tribunal, when exercising its Division functions for the purposes of the Guardianship Act 1987 in relation to persons who have disabilities, is under a duty to observe the principles referred to in section 4 of that Act.
Note—
Section 4 of the Guardianship Act 1987 sets out principles that everyone must observe when exercising functions under that Act with respect to persons with disabilities.
(2)  The provisions of this clause are in addition to, and do not limit, the provisions of section 36 (5) of this Act.
6   Hearing required except for making of ancillary or interlocutory decisions
(1)  Despite section 50 of this Act, the Tribunal is required to hold a hearing in proceedings that involve the exercise of a substantive Division function.
(2)  However, the Tribunal may dispense with a hearing for the purposes of making an ancillary or interlocutory decision of the Tribunal.
7   Tribunal may join parties
(1)  The Tribunal may make an order under section 44 (1) of this Act joining a person as a party to proceedings for the exercise of a Division function if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person’s concern for the welfare of the person the subject of the proceedings or for any other reason).
(2)  If the Tribunal joins a person as a party to any such proceedings, the Tribunal must, as soon as practicable, notify the applicant (if any) for the proceedings accordingly.
(3)  This clause does not limit section 35 (Who are interested persons and parties in relation to applications) of the Powers of Attorney Act 2003 in its application to the Tribunal.
8   Certain guardianship functions may be exercised by registrar
(1)  Despite clause 4, a registrar may, at the direction of the President, exercise any Division function of the Tribunal in respect of:
(a)  refusing under section 25A of the Guardianship Act 1987 a request to review a guardianship order, or
(b)  refusing under section 25O of the Guardianship Act 1987 a request to review a financial management order on an application under section 25R, or
(c)  refusing under section 25T of the Guardianship Act 1987 a request to review the Tribunal’s appointment of the manager of a protected person’s estate, or
(d)  recognising under section 48B of the Guardianship Act 1987 a person’s status as the guardian of another person or as the manager of the estate of another person.
(2)  The President may direct a registrar to refer the exercise of such a function in a particular matter to the Tribunal. The registrar must comply with such a direction.
(3)  A registrar may refer a particular matter to the Tribunal if the registrar considers it would be more appropriate for the Tribunal to deal with the matter.
(4)  A decision of a registrar under subclause (1) is declared to be an appealable decision for the purposes of section 32 of this Act.
Note—
A decision of a registrar under subclause (1) is an internally appealable decision for the purposes of this Act.
9   Legal representation
Despite section 45 of this Act, a party to proceedings for the exercise of a Division function for the purposes of section 175 of the Children and Young Persons (Care and Protection) Act 1998 is entitled to be represented by an Australian legal practitioner without requiring the leave of the Tribunal.
Note—
The leave of the Tribunal will, however, be required under section 45 of this Act in other cases.
10   Withdrawal of applications
An application to the Tribunal for the exercise of a substantive Division function cannot be withdrawn except with the consent of the Tribunal.
11   Written reasons are generally to be provided
(1)  Subject to subclause (2), the Tribunal (however constituted) must give each party to proceedings for the exercise of a Division function a written statement of reasons for any decision it makes in the proceedings.
(2)  If the Tribunal is constituted by less than 3 Division members, the Tribunal is not required to provide a written statement of reasons for any of the following kinds of decisions unless requested to do so by a party under section 62 of this Act:
(a)  a decision for the purposes of section 36 (Who may give consent) of the Guardianship Act 1987 in respect of giving consent to the carrying out of minor treatment,
(b)  a decision for the purposes of Part 5A (Reciprocal arrangements) of the Guardianship Act 1987,
(c)  an ancillary or interlocutory decision of the Tribunal made in the proceedings.
(3)  A statement of reasons for the purposes of this clause must set out the matters referred to in section 62 (3) of this Act.
(4)  A requirement under this clause to provide a statement of reasons applies even if the Tribunal has not been (or cannot be) requested under section 62 of this Act to provide a statement of reasons.
Part 6 Appeals
12   Division decisions may be appealed to either Appeal Panel or Supreme Court
(1)  A party to proceedings in which a Division decision that is an internally appealable decision is made (an appealable Division decision) may appeal against the decision by either:
(a)  an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6 of this Act, or
(b)  an appeal to the Supreme Court in accordance with this Part.
(2)  However, a decision of a registrar made under clause 8 (1) may only be appealed as an internal appeal to an Appeal Panel in accordance with Division 2 of Part 6 of this Act.
(3)  An internal appeal precludes an appeal to the Supreme Court against the same decision unless the internal appeal is withdrawn with the approval of an Appeal Panel for the purpose of enabling an appeal to the Supreme Court against the decision.
(4)  An appeal to the Supreme Court precludes an internal appeal against the same decision unless the appeal to the Supreme Court is withdrawn with the approval of the Court for the purpose of enabling an internal appeal against the decision.
13   Constitution of Appeal Panel for internal appeals
(1)  Except as provided by subclause (2), an Appeal Panel determining an internal appeal against an appealable Division decision is to be constituted by 3 members (whether or not Division members) as follows:
(a)  1 member who is an Australian lawyer of at least 7 years’ standing,
(b)  1 other member who is an Australian lawyer,
(c)  1 general member who is not an Australian lawyer.
(2)  An Appeal Panel may be constituted by 1 member when making an ancillary or interlocutory decision of the Tribunal in an internal appeal against an appealable Division decision.
(3)  Nothing in subclause (2) prevents an Appeal Panel from being constituted as provided by subclause (1) when making an ancillary or interlocutory decision of the Tribunal in an internal appeal against an appealable Division decision.
14   Appeals to Supreme Court under this Part
(1)  A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision:
(a)  in the case of an interlocutory decision of the Tribunal—with the leave of the Court, or
(b)  in the case of any other kind of decision—as of right on any question of law, or with the leave of the Court, on any other grounds.
Note—
See also section 84 (Practice and procedure for appeals to courts under this Act).
(2)  An appeal under this Part is to be instituted:
(a)  in the case of an ancillary or interlocutory decision of the Tribunal—within the period ending 28 days after the relevant decision has been made, or
(b)  in any other case—within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal, or
(c)  within such further time as the Supreme Court may, in any case, allow.
(3)  The Supreme Court in an appeal under this Part may:
(a)  decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b)  permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
(4)  In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(a)  the decision under appeal to be confirmed, affirmed or varied,
(b)  the decision under appeal to be quashed or set aside,
(c)  the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(d)  the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court.
(5)  Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal.
[43]   Schedule 7
Omit the Schedule. Insert instead:
  
Schedule 7 Examples of procedural rule-making powers
(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.
11   
The appointment, use and functions of assessors in connection with proceedings in the Tribunal.
12   
The review by the Tribunal of decisions made by registrars (including by way of internal appeals).
13   
The means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Tribunal.
14   
The means for, and the practice and procedure to be followed in, securing the future conduct of parties to proceedings in the Tribunal.
15   
The circumstances in which the Tribunal may vary or set aside its orders and other decisions.
16   
The means for proving particular facts, and the mode in which evidence may be given (including the administration of oaths or affirmations to and the taking of the evidence of witnesses in or out of New South Wales), in relation to proceedings in the Tribunal.
17   
The use of expert evidence, including:
(a)  the disclosure (by the furnishing of copies of reports or otherwise) of the nature of expert evidence to be given, and including the exclusion of expert evidence in cases of non-compliance with the rules relating to expert evidence or with any order for disclosure of the nature of expert evidence, and
(b)  the use of expert witnesses including, in particular, the use of expert witnesses engaged jointly by parties to proceedings and the use of Tribunal-appointed expert witnesses.
18   
The cases in which security may be required, and the form of such security, and the manner in which, and the person to whom, it is to be given.
19   
The means for notifying the parties to proceedings of decisions of, or other action taken by, the Tribunal in the proceedings.
20   
The costs in proceedings in the Tribunal (but not including any matter relating to costs that is regulated by Part 3.2 of the Legal Profession Act 2004).
21   
The determination of the seniority of members in connection with the exercise of the functions of the Tribunal in proceedings.
22   
The circumstances for the use of resolution processes in proceedings.
23   
The specification of exceptions, limitations or other restrictions in relation to a provision of this Act that is expressed to be subject to the procedural rules.
Schedule 2 Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal
[1]   Long title
Omit “to establish an Administrative Decisions Tribunal and provide for its functions”.
Insert instead “to provide for the administrative review by the Civil and Administrative Tribunal of certain decisions of administrators”.
[2]   Section 1 Name of Act
[3]   Section 3
Omit the section. Insert instead:
  
3   Objects of Act
The objects of this Act are as follows:
(a)  to provide a preliminary process for the internal review of administratively reviewable decisions before the administrative review of such decisions by the Tribunal under this Act,
(b)  to require administrators making administratively reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for decisions of administrators on request,
(c)  to foster an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs,
(d)  to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.
[4]   Section 4 Definitions
Omit section 4 (1). Insert instead:
  
(1)  In this Act:
administrative review jurisdiction of the Tribunal—see section 9.
administratively reviewable decision—see section 7.
administrator—see section 8.
decision—see section 6.
enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that:
(a)  provides for applications 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.
function includes a power, authority or duty, and exercise a function includes perform a duty.
interested person means a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision.
internal review means an internal review conducted under section 53.
legislation means an Act or a statutory rule.
lodge a document includes file a document.
President means the President of the Tribunal.
procedural rules has the same meaning as in the Civil and Administrative Tribunal Act 2013.
Tribunal means the Civil and Administrative Tribunal.
[5]   Section 4 (2) and (3)
Omit “an enactment” and “the enactment” wherever occurring.
Insert instead “enabling legislation” and “the enabling legislation”, respectively.
[6]   Section 4 (3)
Omit “a reviewable decision or a decision that is subject to an external appeal”.
Insert instead “an administratively reviewable decision”.
[7]   Section 4 (4)
Insert after section 4 (3):
  
(4)  Notes included in this Act do not form part of this Act.
[8]   Section 5 What is an enactment?
Omit the section.
[9]   Section 6 Meaning of “decision”
Omit “an enactment” and “the enactment” wherever occurring.
Insert instead “enabling legislation” and “the enabling legislation”, respectively.
[10]   Sections 7–10
Omit the sections.
[11]   Chapter 2
Omit Chapters 2–4. Insert instead:
  
Chapter 2 Administrative review jurisdiction of Tribunal
7   Meaning of “administratively reviewable decision”
(1)  An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
(2)  For the avoidance of doubt (and without limiting subsection (1) or section 6):
(a)  the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and
(b)  in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.
Note—
The jurisdiction conferred on the Tribunal by section 55 of the Privacy and Personal Information Protection Act 1998 is an example of administrative review jurisdiction of the Tribunal over conduct.
8   Meaning of “administrator”
(1)  An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Note—
There are a number of circumstances in which a person or body is taken to have made a decision. See, for example, subsection (2) and sections 6 (2)–(5) and 9 (3) and (4).
(2)  The person or body specified by enabling legislation as a person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision.
9   When administrative review jurisdiction is conferred
(1)  The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:
(a)  in the exercise of functions conferred or imposed by or under the legislation, or
(b)  in the exercise of any other functions of the administrator identified by the legislation.
(2)  If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.
(3)  A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:
(a)  a decision made by a person to whom the function of making the decision has been delegated,
(b)  if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,
(c)  a decision made by any other person authorised to exercise the function of making the decision.
(4)  If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:
(a)  the person for the time being holding or performing the duties of that office or appointment, or
(b)  if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies.
(5)  Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
[12]   Chapter 5, heading
Omit the heading. Insert instead:
Chapter 3  Process for administrative reviews under this Act
[13]   Chapter 5, Part 1
Omit the Part.
[14]   Chapter 5, Parts 2 and 3
Omit each term or expression specified in Column 1 of the following Table wherever occurring (including in definitions, headings and notes) and regardless of capitalisation.
Insert instead the term or expression specified in Column 2 opposite the term or expression specified in Column 1 with capitalisation that corresponds to that of the omitted term or expression:
Table
Column 1
Column 2
reviewable decisions
administratively reviewable decisions
a reviewable decision
an administratively reviewable decision
any other reference to reviewable decision
administratively reviewable decision
[15]   Section 48 Notice of decision and review rights to be given by administrators
Omit “an enactment” from section 48 (2) (b) (iii). Insert instead “legislation”.
[16]   Section 53 Internal reviews
Omit “relevant enactment” from section 53 (5A). Insert instead “relevant legislation”.
[17]   Section 53 (9), note
Omit “a review”. Insert instead “an administrative review under this Act”.
[18]   Chapter 5, Part 3, Division 1, heading
Omit “review”. Insert instead “administrative review”.
[19]   Section 55
Omit sections 55–57. Insert instead:
  
55   Making of applications
(1)  An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.
(2)  Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules.
Note—
The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013.
(3)  If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).
(4)  However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:
(a)  the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or
(b)  it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
(5)  In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to:
(a)  the time when the applicant became aware of the making of the decision, and
(b)  in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and
(c)  such other matters as it considers relevant.
(6)  The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests.
[20]   Section 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed
Omit “Registrar” from section 58 (5). Insert instead “principal registrar”.
[21]   Section 58 (6)
Omit “section 84” and “the Registrar”.
Insert instead “the Civil and Administrative Tribunal Act 2013” and “the principal registrar of the Tribunal”, respectively.
[22]   Section 58 (7)
Omit the subsection. Insert instead:
  
(7)  Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following:
(a)  an order made under section 59 (Objections to lodgment),
(b)  an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013,
(c)  section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act).
[23]   Section 59 Objections to lodgment
Omit section 59 (2). Insert instead:
  
(2)  On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if:
(a)  it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or
(b)  it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
[24]   Section 60 Operation and implementation of decisions pending applications for administrative review
Omit “a review” wherever occurring in section 60 (1) and (2).
Insert instead “an administrative review under this Act”.
[25]   Chapter 5, Part 3, Division 3, heading
Omit “review”. Insert instead “administrative review”.
[26]   Section 63 Determination of administrative review by Tribunal
Omit “a review” and “the review” wherever occurring in section 63 (1) and (3).
Insert instead “an administrative review under this Act” and “the administrative review”, respectively.
[27]   Section 63 (2)
Omit “relevant enactment”. Insert instead “relevant legislation”.
[28]   Sections 64 (1) and (4) and 65 (1)
Omit “a review” wherever occurring.
Insert instead “an administrative review under this Act”.
[29]   Section 66 Effect of administrative review decision
Omit “a review” from section 66 (1).
Insert instead “an administrative review under this Act”.
[30]   Section 66 (2) (a)
Omit “a review under this Chapter”.
Insert instead “an administrative review under this Act”.
[31]   Chapter 4
Omit Chapters 6–8. Insert instead:
  
Chapter 4 Miscellaneous
67   Application of certain provisions of Civil and Administrative Tribunal Act 2013
The following provisions of the Civil and Administrative Tribunal Act 2013 are taken to apply for the purposes of this Act in the same way as they apply for the purposes of the Civil and Administrative Tribunal Act 2013:
(b)  section 67 (Privileged documents).
68   Notices, service and lodgment of documents
The procedural rules may make provision for or with respect to the service, giving or lodgment of notices or documents for the purposes of this Act.
69   Offence: improper disclosure of information
A person must not disclose information obtained in exercising a function under this Act unless the disclosure is made:
(a)  with the consent of the person to whom the information relates, or
(b)  in connection with the execution or administration of this Act, the Civil and Administrative Tribunal Act 2013 or enabling legislation, or
(c)  for the purpose of any legal proceedings arising out of this Act, the Civil and Administrative Tribunal Act 2013 or enabling legislation or any report of such proceedings, or
(d)  with other legal excuse.
Maximum penalty:
(a)  in the case of a corporation—100 penalty units, or
(b)  in any other case—50 penalty units or imprisonment for 12 months, or both.
70   Nature of proceedings for offences
Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.
71   Regulations
(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2)  The regulations may create offences punishable by a penalty not exceeding 10 penalty units.
[32]   Schedules 1–4
Omit the Schedules.
[33]   Schedule 5, heading
Omit the heading (including the source reference). Insert instead:
Schedule 1  Savings, transitional and other provisions
[34]   Schedule 5, clause 1 (1)
Insert at the end of the clause:
  
any other Act that amends this Act
[35]   Schedule 5, clause 1 (3)
Omit “in the Gazette”. Insert instead “on the NSW legislation website”.
[36]   Schedule 5, clause 1A
Insert after clause 1:
  
1A   References to ADT
A reference to the Administrative Decisions Tribunal or the Tribunal established by this Act (however expressed) in a provision of this Schedule that was inserted before the establishment day (within the meaning of the Civil and Administrative Tribunal Act 2013) is a reference to the Administrative Decisions Tribunal that was formerly established under this Act when this Act was named the Administrative Decisions Tribunal Act 1997.
[1]   Clause 1 Name of Regulation
Insert instead “Administrative Decisions Review Regulation 2009”.
[2]   Clause 3 Definition
Omit “Tribunal” from the definition of the Act in clause 3 (1). Insert instead “Review”.
[3]   Clauses 4 and 5
Omit “Reviewable decisions”, “reviewable decisions” and “reviewable decision” wherever occurring (including headings).
Insert instead “Administratively reviewable decisions”, “administratively reviewable decisions” and “administratively reviewable decision”, respectively.
[4]   Clause 6 Witness allowances and expenses
Omit the clause.
[5]   Clause 7 Oath to be taken by members of Tribunal
Omit the clause.
[6]   Clause 8 Fees
Omit the clause.
[7]   Schedule 1 Fees
Omit the Schedule.