New South Wales: 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 (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. 18 Assignment of members to Divisions of Tribunal (1) The President is assigned to each Division of the Tribunal. (2) A Division Head is assigned to the Division of the Tribunal in respect of which he or she is appointed as the Division Head. (3) Subject to this Act, the President— (a) is to assign each member (other than the President or a Division Head) to one or more Divisions of the Tribunal, and (b) may assign a member who is a Division Head to one or more Divisions of the Tribunal in respect of which the member is not the Division Head, and may vary any such assignment at any time. (4) An assignment of a member to a Division of the Tribunal— (a) is to be made in accordance with any applicable provisions of the Division Schedule for the Division or of this Act or any enabling legislation, and (b) is subject to any limitations specified in the member's instrument of appointment or assignment. (5) An assignment of a member to a Division of the Tribunal may be limited to participating in proceedings that are entered in one or more Division Lists of the Division. 19 Division Lists and List Managers for Divisions of Tribunal (1) The President, or the Division Head of a Division of the Tribunal (subject to any direction of the President), may establish one or more Division Lists for a Division of the Tribunal in which proceedings allocated to the Division are to be entered for the purpose of managing those proceedings. (2) The President, or the Division Head of a Division of the Tribunal (subject to any direction of the President), may, by written instrument, designate a Division member to be a List Manager for a Division List of the Division. Note— A Division Schedule for a Division of the Tribunal may, in some cases, provide for the use of Division Lists in the Division and for the qualifications and procedure for the designation of, and the functions of, List Managers for the Division. (3) A List Manager for a Division of the Tribunal has (subject to any direction from the President or the Division Head of the Division) the function of managing such Division Lists of the Division as may be specified— (a) in the instrument designating the member to be a List Manager, or (b) by the Division Schedule for the Division or by the procedural rules. Note— Clause 12 of Schedule 2 also enables the Division Head of a Division of the Tribunal to delegate functions of the Division Head to a List Manager of the Division. (4) An instrument designating a member to be a List Manager for a Division of the Tribunal may specify a title for the member to use while exercising the functions of a List Manager. (5) The President, or the Division Head of a Division of the Tribunal (subject to any direction of the President), may at any time, by written instrument, revoke a member's designation as a List Manager for a Division of the Tribunal. Division 3 Functions of members 20 Functions of President (1) The functions of the President are— (a) to direct the business of the Tribunal (including determining the places and times for sittings of the Tribunal), and (b) to facilitate the adoption of good administrative practices for the conduct of the business of the Tribunal, and (c) to give directions about, and participate in the development of, the practice and procedure to be followed by the Tribunal, and (d) to manage members, including by— (i) developing codes of conduct for members, and (ii) ensuring that members are adequately and appropriately trained to enable them to exercise their functions effectively and efficiently, and (iii) undertaking performance management for members (whether by means of agreements with members, reviews or otherwise), and (iv) developing selection criteria for the appointment of members and, if required by the Minister, overseeing the selection process for members, and (e) to advise the Minister about the appointment, re-appointment and removal of members, and (f) to exercise such other functions as may be conferred or imposed on the President by or under this Act or any other legislation. (2) The President may also enter into agreements with Ministers, public officials and other persons or bodies with regulatory functions in relation to any class of matters over which the Tribunal has jurisdiction about the provision, allocation or use of funding in connection with the exercise of the jurisdiction concerned. (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. 21 Functions of other members and Division Heads (1) A member has such functions as may be conferred or imposed on the member by or under this Act or any other legislation. (2) Each member must comply with any procedural directions given by the President and the Division Head of the Division of the Tribunal to which the member is assigned. (3) The functions of a Division Head of a Division of the Tribunal are— (a) to direct (subject to this Act, the regulations, the Tribunal rules and any direction of the President) the business of the Tribunal in that Division, and (b) to exercise such other functions as may be conferred or imposed on the Division Head by or under this Act or any other legislation. (4) Without limiting subsections (1)–(3), a member (other than the President) or Division Head for a Division of the Tribunal 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 member under section 20(3). Division 4 Registrars and other staff 22 Appointment of registrars and other staff (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. (2) The President may enter into arrangements with any government agency or other body or person (whether in the public or private sector) for the provision of assistance to the Tribunal in connection with the exercise of its functions. (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. 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). 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. 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 or revoke a direction 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. 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— See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction— (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the 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— See section 7 of the Administrative Decisions Review Act 1997. (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— See section 8 of the Administrative Decisions Review Act 1997. (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— (a) the Administrative Decisions Review Act 1997, or (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 3A Federal proceedings 34A Definitions In this Part— authorised court means any of the following— (a) the District Court, (b) the Local Court. federal jurisdiction means jurisdiction of a kind referred to in section 75 or 76 of the Commonwealth Constitution. jurisdictional limit, in relation to an authorised court, means the jurisdictional limit of the court within the meaning of the Civil Procedure Act 2005. substituted proceedings—see section 34C. 34B Applications or appeals involving federal jurisdiction may be made to authorised court (1) A person with standing to make an original application or external appeal may, with the leave of an authorised court, make the application or appeal to the court instead of the Tribunal. (2) The authorised court may grant leave for the application or appeal to be made to the court only if it is satisfied that— (a) the application or appeal was first made with the Tribunal, and (b) the determination of the application or appeal by the Tribunal would involve an exercise of federal jurisdiction, and (c) the Tribunal would otherwise have had original jurisdiction or external appellate jurisdiction enabling it to determine the application or appeal, and