Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Act 2013 No 2 An Act to establish the Civil and Administrative Tribunal of New South Wales and to provide for its membership and functions. Part 1 Preliminary 1 Name of Act This Act is the Civil and Administrative Tribunal Act 2013. 2 Commencement This Act commences on the date of assent to this Act. 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. 4 Definitions (1) In this Act— administrative review application, administrative review decision, administrative review jurisdiction, administratively reviewable decision and administrator—see section 30. administrator, of the Guardian Ad Litem Panel, means the person responsible for the constitution of the Guardian Ad Litem Panel under the Children and Young Persons (Care and Protection) Act 1998. ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including— (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. appeal jurisdiction of the Tribunal—see section 28(2)(c). Appeal Panel means an Appeal Panel of the Tribunal. appealable external decision—see section 31. application to the Tribunal—see section 39. authorised official—see section 75. civil penalty means a monetary or pecuniary penalty that is imposed on a person (except as punishment for an offence) for a contravention of either a provision of legislation or an order or other decision of a person or body. civil penalty provision of this Act—see section 77. decision—see section 5. decision-maker—see section 6. Deputy President means a Deputy President of the Tribunal. Division of the Tribunal means a Division of the Tribunal specified in section 16(1). Division Head of a Division of the Tribunal means the member who is appointed by or under this Act as the Division Head of that Division. Division List means a list established by or under this Act for the management of a class of proceedings allocated to a Division of the Tribunal. Division member, in relation to a Division of the Tribunal, means a member who is assigned by or under this Act to that Division. Division Schedule for a Division of the Tribunal—see section 17. enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that— (a) provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters. enforcement jurisdiction—see section 33. establishment day—see section 7. external appeal and external appeal jurisdiction—see section 31. external decision-maker means a decision-maker who is external to the Tribunal. function includes a power, authority or duty, and exercise a function includes perform a duty. general application, general decision and general jurisdiction—see section 29. general member means a general member of the Tribunal. Guardian Ad Litem Panel has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following— (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. internal appeal, internal appeal jurisdiction and internally appealable decision—see section 32. legislation means an Act or a statutory rule. List Manager for a Division of the Tribunal—see section 19. member means a member of the Tribunal. non-presidential member—see section 9(3). NSW judicial officer means any of the following— (a) a Magistrate, (b) a Judge of the District Court, (c) a judicial member of the Industrial Relations Commission, (d) a Judge of the Land and Environment Court, (e) a Judge of the Supreme Court. occasional member—see section 9(5). President means the President of the Tribunal. presidential member—see section 9(2). principal member means a principal member of the Tribunal. principal registrar means the person employed in the Public Service as the principal registrar of the Tribunal. procedural rules means each of the following— (a) the Tribunal rules, (b) the regulations in their application to the practice and procedure of the Tribunal. Note— Section 25(5) provides that in the event of an inconsistency between a provision of the regulations and a provision of the Tribunal rules, the provision of the regulations prevails to the extent of the inconsistency. registrar means the principal registrar or any other person employed in the Public Service as a registrar of the Tribunal. resolution process—see section 37. Rule Committee means the Rule Committee of the Tribunal. senior member means a senior member of the Tribunal. term member—see section 9(4). the Tribunal or NCAT means the Civil and Administrative Tribunal of New South Wales established by this Act. Tribunal rules means the rules of the Tribunal made by the Rule Committee. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation. (3) A reference (however expressed) in this Act to a decision made under other legislation is taken to include a reference to any decision made in the exercise of functions identified by the legislation. (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. 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. Part 2 Establishment of Tribunal Division 1 Establishment and membership 7 Establishment of Civil and Administrative Tribunal (1) The Civil and Administrative Tribunal of New South Wales (which may also be called NCAT) is established by this Act on the establishment day. (2) The establishment day is— (a) 1 January 2014, or (b) such later day as may be fixed as the establishment day by a proclamation made under this section. (3) The Governor may, by proclamation published on the NSW legislation website, fix a day that is later than 1 January 2014 as the establishment day for the purposes of this section. (4) The Governor may, by further proclamation published on the NSW legislation website, revoke a previous proclamation fixing a day as the establishment day and fix a different day that is later than 1 January 2014 as the establishment day. (5) A proclamation under this section has effect only if published before the establishment day applying for the time being. 8 Appointments and other matters to facilitate establishment of Tribunal (1) A person may be appointed to any office or other position under this Act before the establishment day. (2) Without limiting subsection (1), the following appointments may be made before the establishment day— (a) appointment as the President or as any other kind of member, (b) appointment as a Division Head of a Division of the Tribunal that will be created on the establishment of the Tribunal, (c) appointment as a List Manager of a Division of the Tribunal that will be created on the establishment of the Tribunal, (d) appointment as a member of the Rule Committee, (e) appointment as a registrar (including as the principal registrar) or other member of staff of the Tribunal. (3) A member appointed before the establishment day may also be assigned by or under this Act to a Division of the Tribunal that will be created on the establishment of the Tribunal. (4) Without limiting subsections (1) and (2), the Rule Committee may be constituted before the establishment day and may before that day— (a) meet and transact business as if the Tribunal (and its Divisions) had been established, and (b) without limiting paragraph (a), make Tribunal rules that will come into force on or after the establishment day. (5) Any appointment or assignment made before the establishment day has effect on and from the day specified in the instrument of appointment or assignment as the date of appointment or assignment as if the Tribunal (including its Divisions) had been established. (6) Despite clause 5 of Schedule 2, a member of an existing tribunal (within the meaning of Part 2 of Schedule 1) who is appointed as a member of the Tribunal before the establishment day is not entitled to be paid remuneration as a member of the Tribunal while he or she continues to receive remuneration as a member of the existing tribunal. 9 Membership of Tribunal (1) The Tribunal is to consist of the following members— (a) the President, (b) Deputy Presidents, (c) principal members, (d) senior members, (e) general members. (2) The President and the Deputy Presidents are referred to in this Act as presidential members. (3) The principal members, senior members and general members are referred to in this Act as non-presidential members. (4) A member appointed by or under this Act for a term is referred to in this Act as a term member. (5) A member appointed by or under this Act to be a member for the purposes of specified proceedings is referred to in this Act as an occasional member. (6) The President is to be appointed as a term member. (7) Schedule 2 sets out additional provisions with respect to members. 10 Appointment of term members (1) A person may be appointed as a term member if the person is qualified to be appointed as a member of the kind concerned. Note— Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications. (2) A presidential member appointed as a term member is to be appointed by the Governor by commission under the public seal of the State. Note— The President must be appointed as a term member. See section 9(6). (3) A non-presidential member appointed as a term member is to be appointed by the Minister by written instrument. (4) The instrument of appointment of a term member is to specify— (a) whether the member has been appointed as the President, a Deputy President, principal member, senior member or general member, and (b) the term for which the member has been appointed. (5) A term member may be appointed on a full-time basis or a part-time basis. (6) However, the President is taken to be appointed on a full-time basis. 11 Appointment of occasional members (1) The President may, by written instrument, appoint a person to be an occasional member in relation to particular proceedings before the Tribunal if— (a) the person is qualified to be appointed as a member of the kind concerned, and (b) the President is satisfied that the appointment of the person as a member is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings. Note— Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications. (2) Without limiting clause 12 of Schedule 2, the President may delegate the function of appointing occasional members to sit as Division members for a Division of the Tribunal to the Division Head of the Division or a List Manager of a Division of the Tribunal. (3) The instrument of appointment of an occasional member is to specify— (a) whether the member has been appointed as a Deputy President, principal member, senior member or general member, and (b) the proceedings in relation to which the member has been appointed as an occasional member. (4) An occasional member who is appointed to be a member in relation to proceedings that are allocated to a Division of the Tribunal is taken to be assigned as a Division member of that Division. (5) A person who is appointed as an occasional member holds office as such until the proceedings in relation to which the member has been appointed as an occasional member have been finally determined, unless the person sooner vacates office. (6) The proceedings in relation to which an occasional member has been appointed as an occasional member are not finally determined for the purposes of subsection (5) until— (a) the proceedings are withdrawn by a party before the substantial merits of the proceedings are considered by the Tribunal, or (b) the proceedings are dismissed by the Tribunal (as constituted by or with the member) before the substantial merits of the proceedings are considered by the Tribunal (including, where required, the giving of reasons for the dismissal and the determination of costs), or (c) the Tribunal (as constituted by or with the member) has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs), whichever occurs first. 12 Appointment of acting members for a period (1) The Governor may, by commission under the public seal of the State, appoint as an Acting Deputy President a person qualified for appointment as a Deputy President if satisfied that the appointment is necessary to enable the Tribunal to exercise its functions effectively during the period of the appointment. (2) The Minister may, by written instrument, appoint as an acting principal member, acting senior member or acting general member a person qualified for appointment as a principal member, senior member or general member (as the case requires) if satisfied that the appointment is necessary to enable the Tribunal to exercise its functions effectively during the period of the appointment. (3) The person's appointment is for the period (not exceeding 12 months) specified in the instrument of appointment. (4) An Acting Deputy President, acting principal member, acting senior member or acting general member has the functions of, and is taken to be, a Deputy President, principal member, senior member or general member (as the case requires) subject to any conditions or limitations specified in the instrument of appointment. 13 Qualifications of members (1) The President A person is qualified to be appointed as the President only if the person is a Judge of the Supreme Court. (2) However, the Minister may not recommend the appointment of a person as the President unless the Minister has consulted with the Chief Justice of the Supreme Court about the appointment. (3) Deputy Presidents A person is qualified to be appointed as a Deputy President only if the person is— (a) an Australian lawyer of at least 7 years' standing, or (b) a person who holds, or has held, a judicial office of this State or of the Commonwealth, another State or Territory. (4) Principal members A person is qualified to be appointed as a principal member only if the person— (a) is an Australian lawyer of at least 7 years' standing, or (b) has, in the opinion of the person making the appointment, special knowledge, skill or expertise in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction. (5) Senior members A person is qualified to be appointed as a senior member only if the person— (a) is an Australian lawyer of at least 7 years' standing, or (b) has, in the opinion of the person making the appointment, special knowledge, skill or expertise in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction. (6) General members A person is qualified to be appointed as a general member only if, in the opinion of the person making the appointment, the person— (a) has special knowledge, skill or expertise in relation to any class of matters in respect of which the Tribunal has jurisdiction, or (b) is capable of representing the public (or a sector of the public), or a particular organisation, body or group of persons (or class of organisations, bodies or groups of persons), in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction. Note— A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications. 14 Division Heads (1) The President or a Deputy President who is a term member may be appointed by the Governor as the Division Head of one or more Divisions of the Tribunal— (a) in the instrument of appointment of the President or Deputy President, or (b) by subsequent instrument. Note— A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the qualifications and procedure for the appointment of the Division Head for that Division. (2) A Division Head ceases to hold office as a Division Head if he or she— (a) is removed from office as a Division Head by the Governor, or (b) resigns the office by written instrument addressed to the Minister, or (c) ceases to hold office as the President or a Deputy President. (3) However, a person does not cease to hold office as the President or a Deputy President simply because the person has been removed, or has resigned, from office as a Division Head under subsection (2). 15 NSW judicial officers acting as members of Tribunal (1) Classes of NSW judicial officers who may act as members may be prescribed Any NSW judicial officer who belongs to a class of NSW judicial officer prescribed by the regulations for the purposes of this section is taken to have been duly appointed to act as a member of the Tribunal in relation to such matters within the jurisdiction of the Tribunal as are prescribed by the regulations. (2) President may appoint NSW judicial officer to act as member Without limiting subsection (1), the President may appoint any NSW judicial officer to act as a member of the Tribunal in relation to particular proceedings before the Tribunal if— (a) the President is satisfied that the appointment of the judicial officer to act as a member is necessary to enable the Tribunal to exercise its functions effectively in the proceedings, and (b) the relevant chief judicial officer agrees to the NSW judicial officer's appointment. (3) Effect of appointment Any person who is appointed to act as a member by or under this section— (a) holds office as a Deputy President, principal member or senior member as specified in the regulations (in the case of an appointment under subsection (1)) or the instrument of appointment (in the case of an appointment under subsection (2)), and (b) has and may exercise all the functions of a member while acting as a member, and (c) may continue to exercise his or her functions as a holder of a judicial office. (4) Former acting member may complete determination of proceedings A NSW judicial officer who has acted as a member may attend the sittings of the Tribunal for the purpose of giving reasons for a decision in, or otherwise completing, any proceedings that have been heard by the Tribunal (or were otherwise the subject of deliberations by the Tribunal) while the officer acted as a member, even if the person has ceased to act as a member. (5) Definitions In this section— NSW judicial officer includes a retired NSW judicial officer. relevant chief judicial officer means— (a) in relation to the appointment of a Magistrate to act as a member—the Chief Magistrate of the Local Court, or (b) in relation to the appointment of a Judge of the District Court to act as a member—the Chief Judge of the Court, or (c) in relation to the appointment of a judicial member of the Industrial Relations Commission to act as a member—the President of the Commission, or (d) in relation to the appointment of a Judge of the Land and Environment Court to act as a member—the Chief Judge of the Court, or (e) in relation to the appointment of a Judge of the Supreme Court to act as a member—the Chief Justice of the Court. Division 2 Divisions of Tribunal 16 Divisions of Tribunal (1) On the establishment of the Tribunal, there are to be the following Divisions of the Tribunal— (a) the Administrative and Equal Opportunity Division, (b) the Consumer and Commercial Division, (c) the Occupational Division, (d) the Guardianship Division. (e) (Repealed) (2) The functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are to be exercised in that Division. Note— Section 4(2) provides that a reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation. (3) The functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are the functions in relation to such legislation that are allocated to the Division by the Division Schedule for the Division. (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. 17 Division Schedule for a Division of Tribunal (1) The Division Schedule for a Division of the Tribunal is the Schedule to this Act that provides for the composition and functions of that Division. (2) Without limiting subsection (1), a Division Schedule for a Division of the Tribunal may include provisions about the following matters— (a) the qualifications and procedure for the appointment of a Division Head of the Division, (b) the qualifications and procedure for the assignment of other Division members, (c) the allocation to the Division of functions of the Tribunal in relation to enabling legislation, (c1) the reallocation from the Division to another Division of functions of the Tribunal in relation to enabling legislation, (d) the use of Division Lists in the Division and the qualifications and procedure for the appointment of, and the functions of, List Managers for the Division, (e) special requirements for the constitution of the Tribunal when exercising functions of the Tribunal allocated to the Division, (f) special requirements in relation to the powers of, and the practice and procedure to be followed by, the Tribunal in relation to proceedings in the Division, (g) the functions of registrars in relation to proceedings in the Division, (h) special requirements regarding appeals from decisions made by the Tribunal or a registrar in the Division (including whether appeals lie to an Appeal Panel or court and the constitution and functions of an Appeal Panel or court on any such appeal). (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 (except Part 3A) 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 Innovation and Better Regulation 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 (H