Western Australia: State Administrative Tribunal Act 2004 (WA)

Western Australia State Administrative Tribunal Act 2004 Western Australia State Administrative Tribunal Act 2004 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 4. What it means to bring or conduct proceeding vexatiously 1 5. Enabling Act prevails 1 6. Crown bound 1 7A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 1 Part 2 — The State Administrative Tribunal 7. Tribunal established 1 8. Tribunal's jurisdiction 1 9. Main objectives of Tribunal 1 10. Tribunal to operate throughout State 1 11. Who constitutes Tribunal 1 12. Contemporaneous exercise of Tribunal's jurisdiction 1 Part 3 — Jurisdiction of the Tribunal Division 1 — Preliminary matters 13. Sources of jurisdiction 1 14. Kinds of jurisdiction 1 Division 2 — Original jurisdiction 15. What comes within original jurisdiction 1 16. Exercising original jurisdiction 1 Division 3 — Review jurisdiction Subdivision 1 — General provisions 17. What comes within review jurisdiction 1 18. Exercising review jurisdiction 1 19. Relationship of statutory right of review to judicial review 1 Subdivision 2 — Information about reviewable decision 20. Notice of decision and right to have it reviewed to be given by decision-maker 1 21. Statement of reasons for decision, request for etc. 1 22. Tribunal may order decision‑maker to provide reasons 1 23. Exceptions to what has to be provided 1 24. Decision-makers to give Tribunal reasons etc. for decisions being reviewed 1 Subdivision 3 — The review 25. Effect of review proceedings on decision being reviewed 1 26. After review commenced, decision-maker's powers restricted 1 27. Nature of review proceedings 1 28. Government policy, when Tribunal to consider 1 29. Tribunal's powers in review jurisdiction 1 30. Decision‑maker to assist Tribunal 1 31. Tribunal may invite decision‑maker to reconsider decision 1 Part 4 — Tribunal's procedures Division 1 — Introduction 32. Practice and procedure, generally 1 33. Practice notes 1 34. Directions for conduct of proceedings 1 35. Obtaining information from third parties 1 36. Who are parties to proceedings 1 37. Intervening in proceeding 1 38. Joining person as party to proceeding 1 39. Representation in proceedings 1 40. Tribunal may appoint representative or guardian 1 41. Interpreters 1 Division 2 — Preliminary procedures 42. Commencing proceeding 1 43. Fee for commencing proceeding 1 44. Tribunal may reject application or accept it conditionally 1 45. Who has to be given copy of application 1 46. Dismissing proceeding on withdrawal or for want of prosecution 1 47. Frivolous etc. proceedings, dismissal of etc. 1 48. Proceedings being conducted to cause disadvantage, Tribunal's powers as to 1 49. No new application after dismissal etc. under s. 46, 47 or 48 without leave 1 50. More appropriate forum 1 51. Consolidating proceedings 1 51A. Splitting proceedings 1 52. Compulsory conference 1 53. Failure to attend compulsory conference 1 54. Mediation 1 55. Evidence of certain things at compulsory conference or mediation inadmissible later 1 56. Settling proceedings 1 Division 3 — Proceedings and hearings 57. Who presides 1 58. Decision of Tribunal if 2 or more sitting members 1 59. Questions of law, deciding 1 60. Electronic hearings and proceedings without hearings 1 61. Hearings to be public; exceptions 1 62. Publishing evidence etc. given at proceeding, restrictions as to 1 63. Notice of hearings 1 64. Experts etc., Tribunal may appoint to assist 1 65. Special referees 1 66. Summoning witnesses 1 67. Powers relating to witnesses 1 68. Privilege against self‑incrimination 1 69. Other claims of privilege 1 70. Oaths and affirmations 1 71. Tribunal may authorise person to take evidence 1 72. Tribunal may inspect etc. documents etc. produced 1 Division 4 — Decisions made by Tribunal 73. Conditional and ancillary orders and directions 1 74. Decisions, form of 1 75. To whom copy of written decision has to be given 1 76. Time limit for reserved decision 1 77. Reasons for final decision 1 78. Written reasons may be requested 1 79. Written decision or reasons using transcript 1 80. Restricted publication of reasons for decision in some cases 1 81. Validity of decision not affected by breach of this Division 1 82. When decision has effect 1 83. Correcting mistakes 1 84. Tribunal may review its decision if person was absent 1 85. Monetary orders, enforcement of 1 86. Decisions (not monetary orders), enforcement of 1 Division 5 — Costs 87. Costs of parties and others 1 88. Costs of proceeding 1 89. Costs, assessment of if not fixed 1 Division 6 — Other procedural provisions 90. Interim injunctions, granting of 1 91. Declarations, making and effect of 1 92. Relief from procedural requirements 1 93. Minor proceedings, applicant in may elect no hearing etc. 1 94. Appeals etc. to Supreme Court, documents etc. relating to 1 Division 7 — Offences 95. Failing to comply with decision 1 96. Failing to comply with summons 1 97. Failing to give evidence as required 1 98. Giving false or misleading information 1 99. Misbehaviour, obstruction etc. 1 100. Contempt 1 Division 8 — Arrest warrants 101. Powers in this Division exercisable by only judicial member 1 102. Arrest of person disobeying summons 1 103. Conditional release of arrested person 1 104. Review by Supreme Court 1 Part 5 — Appeals from Tribunal's decisions 105. Appeal from Tribunal's decision 1 106. Effect of appeal on decision appealed against 1 Part 6 — Tribunal's membership and other provisions Division 1 — Members of the Tribunal Subdivision 1 — Kinds of members 107. Tribunal members 1 Subdivision 2 — President 108. Appointment of President 1 109. Term of President's appointment 1 110. Vacating office prematurely 1 111. President's status as Supreme Court judge 1 Subdivision 3 — Deputy President 112. Appointment of Deputy President 1 113. Term of Deputy President's appointment 1 114. Vacating office prematurely 1 115. Deputy President's status as District Court judge 1 Subdivision 4 — Ex officio members 116. Magistrates to be ex officio members 1 Subdivision 5 — Other members 117. Appointment of non‑judicial members 1 118. Term of non‑judicial member's appointment 1 119. Conditions of service of non‑judicial member 1 120. Non-judicial members engaging in other employment, restrictions on 1 121. Code of conduct for non-judicial members 1 122. Suspending non‑judicial member 1 123. Terminating appointment of non-judicial member, grounds for 1 124. Investigating suspended non‑judicial member 1 125. Action on investigator's report 1 126. Deciding whether to recommend termination 1 127. Vacating office of non-judicial member prematurely 1 Division 2 — Acting and supplementary members Subdivision 1 — Acting President 128. Appointment of acting President 1 129. Terminating appointment as acting President prematurely 1 130. Acting President's status as Supreme Court judge 1 131. Deputy President may act as President in some cases 1 132. Deputy President's allowance for acting as President 1 133. Consequences of acting as President 1 Subdivision 2 — Acting Deputy President 134. Appointment of acting Deputy President 1 135. Terminating appointment of acting Deputy President prematurely 1 136. Acting Deputy President's status as District Court judge 1 137. Consequences of acting as Deputy President 1 Subdivision 3 — Supplementary judicial members 138. Supplementary President, appointment of etc. 1 139. Supplementary President's status as Supreme Court judge 1 140. Supplementary Deputy Presidents, appointment of etc. 1 141. Supplementary Deputy President's status as District Court judge 1 Division 3 — Other matters about Tribunal members 142. Fixing the period of appointment 1 142A. Oath of office 1 143. Training 1 144. Disclosure of interests 1 145. Completing matters after member's appointment expires 1 Part 7 — Administration 146. Responsibility for administering Act 1 147. President to advise Minister 1 148. Executive officer and other staff of Tribunal 1 149. Delegation by judicial member 1 150. Annual etc. reports of Tribunal 1 151. Laying reports before House of Parliament not sitting 1 Part 8 — Other matters 152. Seals of Tribunal 1 153. Judicial notice to be taken of some things 1 154. Validity of decisions not affected by some things 1 155. Register of proceedings 1 156. Publication of Tribunal's decisions 1 157. Tribunal members etc. not to disclose etc. certain information 1 158. Persons given certain information not to disclose it etc. 1 159. Which disclosures would be contrary to public interest 1 160. Protected matter, Tribunal's duties as to 1 161. Freedom of Information Act 1992, application of 1 162. Parliamentary privilege not affected 1 163. Immunity etc. of Tribunal members, parties, witnesses etc. 1 164. Protection from liability for torts 1 165. Protection for compliance with this Act 1 166. Protection from defamation proceedings 1 167. Statutory transfer of jurisdiction to Tribunal, consequences of 1 168. Arrangements with Ombudsman 1 169. Regulations 1 170. Rules of Tribunal 1 171. Fees for proceedings etc. in Tribunal 1 172. Rules Committee 1 173. Legislative Council inquiry 1 Schedule 1 — Relevant Acts for section 105 Schedule 2 — Oath and affirmation of office Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia State Administrative Tribunal Act 2004 An Act to establish a tribunal with jurisdiction under this and other Acts to review certain administrative decisions and deal with certain other matters, and for related purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the State Administrative Tribunal Act 2004. 2. Commencement (1) This Act comes into operation on a day fixed by proclamation. (2) Different days may be fixed under subsection (1) for different provisions. 3. Terms used (1) In this Act, unless the contrary intention appears — appear at a hearing means to appear in person or participate in a way allowed under this Act; applicant means — (a) in the context of the Tribunal's review jurisdiction, the person who — (i) applies to the Tribunal for a review; or (ii) otherwise brings a matter before the Tribunal; or (iii) requests, requires, or otherwise seeks that a matter be referred to, or otherwise brought before, the Tribunal; (b) in any other context, the person who — (i) brings a matter before the Tribunal; or (ii) requests, requires, or otherwise seeks that a matter be referred to, or otherwise brought before, the Tribunal, except that it does not include a person who is required by an enabling Act or section 44(3) to refer a matter to the Tribunal, or otherwise bring a matter before the Tribunal, as sought by another person; application means — (a) in the context of the Tribunal's review jurisdiction — (i) an application by an applicant for a review; or (ii) a referral or other means of bringing a matter before the Tribunal by, or as sought by, an applicant; (b) in any other context, a referral or other means of bringing a matter before the Tribunal by, or as sought by, an applicant; chief executive officer means the chief executive officer under the Public Sector Management Act 1994 of the Department; decision of the Tribunal includes an order, direction, or determination of the Tribunal; decision‑maker means a person who makes a reviewable decision; Department means the department principally assisting the Minister in the administration of this Act; Deputy President means a Deputy President of the Tribunal; enabling Act means another Act, or a portion of another Act, under which jurisdiction is conferred on the Tribunal and, if relevant, it includes subsidiary legislation under that other Act; executive officer means the officer made available under section 148(1) to perform the functions under this Act of the executive officer of the Tribunal; exempt document means a document that contains exempt matter; exempt matter means matter that is exempt under Schedule 1 to the Freedom of Information Act 1992; final decision means a decision of the Tribunal that disposes of the matter raised in an application; hearing includes a compulsory conference or mediation; judicial member means the President or a Deputy President; legal experience means — (a) standing and practice as a legal practitioner; or (b) judicial service (including service as a judge of a court, a magistrate or other judicial officer) in the State or elsewhere in a common law jurisdiction; or (c) a combination of both kinds of legal experience mentioned in paragraphs (a) and (b); legally qualified member means — (a) a judicial member; or (b) a magistrate performing functions as a member of the Tribunal; or (c) a non‑judicial member who is a lawyer and has had not less than 5 years' legal experience; member of staff of the Tribunal refers to the executive officer and other officers of the Department made available under section 148(2); monetary order means an order of the Tribunal requiring the payment of money, and includes — (a) an order for the payment of a fine or other pecuniary penalty; and (b) an order under Part 4 Division 5; non‑judicial member means a member of the Tribunal who is not the President, a Deputy President or an ex officio member; ordinary member means a member of the Tribunal who is not the President, a Deputy President, a senior member or an ex officio member; original jurisdiction of the Tribunal means its jurisdiction other than its review jurisdiction; party has the meaning given to that term in section 36; President means the President of the Tribunal; presiding member means the sitting member of the Tribunal who — (a) alone constitutes the Tribunal for dealing with the matter concerned; or (b) presides at a proceeding of the Tribunal for dealing with the matter concerned; protected matter means — (a) any information or document to which a certificate under section 159(2) applies, except to the extent that an order of the Tribunal under section 159(4) that its disclosure would not be contrary to the public interest has effect; or (b) exempt matter or an exempt document; public sector employee has the meaning given to the term employee in section 3(1) of the Public Sector Management Act 1994; review jurisdiction of the Tribunal means its jurisdiction described in section 17(1); reviewable decision has the meaning given to that term in section 17(3); Rules Committee has the meaning given to that term in section 172; senior member means a non‑judicial member appointed as a senior member of the Tribunal; sitting member of the Tribunal means a person who constitutes, or is one of the persons constituting, the Tribunal for dealing with the matter concerned; Tribunal means the State Administrative Tribunal established by this Act and constituted in accordance with this Act or an enabling Act; Tribunal member means a person who is appointed, or authorised to perform functions, as a member of the Tribunal under Part 6; vexatiously, in the context of bringing or conducting a proceeding, has the meaning given in section 4; vocational regulatory body means a body or person which or who, under an enabling Act prescribed by regulations for the purposes of this definition (a vocational Act), exercises control over a person's capacity to lawfully pursue a vocation, but does not include the Tribunal; witness means a person who appears before the Tribunal to give evidence, whether the person has been summoned to appear or appears without being summoned. (2) Where section 44(3) or (4) gives jurisdiction to the Tribunal to deal with a matter, references in this Act to the enabling Act are to be disregarded in relation to that matter. (3) If under an enabling Act a person's failure or omission to do something is reviewable under this Act as a decision — (a) this Act applies as if that person had made that decision; and (b) any provision of the enabling Act as to when the decision is taken to have been made has effect. (4) A reference in this Act to the making of an application to the Tribunal includes a reference to a matter being referred to or otherwise brought before the Tribunal. [Section 3 amended: No. 21 of 2008 s. 706(2); No. 9 of 2022 s. 400.] 4. What it means to bring or conduct proceeding vexatiously A person brings or conducts a proceeding vexatiously if it would result in the proceeding being vexatious proceedings as defined in the Vexatious Proceedings Restriction Act 2002 section 3. 5. Enabling Act prevails If there is any inconsistency between this Act and an enabling Act, the enabling Act prevails. 6. Crown bound This Act binds the Crown in right of the State and, subject to the limits of the legislative power of the State, the Crown in all its other capacities. 7A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act. [Section 7A inserted: No. 20 of 2013 s. 133.] Part 2 — The State Administrative Tribunal 7. Tribunal established A tribunal called the State Administrative Tribunal is established. 8. Tribunal's jurisdiction The Tribunal has the jurisdiction described in Part 3. 9. Main objectives of Tribunal The main objectives of the Tribunal in dealing with matters within its jurisdiction are — (a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and (b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and (c) to make appropriate use of the knowledge and experience of Tribunal members. 10. Tribunal to operate throughout State The Tribunal is to facilitate access to its services throughout Western Australia and may sit at any place in Western Australia. 11. Who constitutes Tribunal (1) When exercising its jurisdiction, the Tribunal is to be constituted by a person who is a Tribunal member or persons who are Tribunal members, as specified by the President. (2) The Tribunal is not to be constituted by more than 3 members. (3) Despite subsections (2) and (4), the President can specify that the Tribunal is to be constituted by 4 members or 5 members if the President is satisfied that it is appropriate to do so in particular circumstances. (4) The President is to ensure that when dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act, the Tribunal is constituted by 3 persons, being — (a) one person who is a legally qualified member; and (b) one person who has extensive or special experience in the same vocation as the person affected by or the subject of the decision or matter; and (c) one person not engaged in that vocation who is familiar with the interests of persons dealing with persons engaged in that vocation or has knowledge or experience enabling the person to understand those interests. (5) Subsection (4) does not apply to — (a) a hearing at which the Tribunal makes a decision other than a final decision; or (aa) a hearing at which the Tribunal makes a final decision with the consent of the parties; or (b) a compulsory conference; or (c) the appointment of a Tribunal member as a mediator. (6) In specifying the persons by whom the Tribunal is to be constituted for dealing with a particular matter and the number of those persons, the President is to have regard to — (a) the degrees of the public importance and the complexity of the matter; and (b) if the matter comes within the Tribunal's review jurisdiction, the nature and status of the office of the decision‑maker who made the reviewable decision; and (c) the extent to which any sitting member of the Tribunal needs to have special knowledge or experience that is relevant to the matter; and (d) the need to ensure that a person who has had previous involvement with the matter, otherwise than as a Tribunal member, is not a sitting member of the Tribunal; and (e) any relevant provision of this Act or another written law; and (f) anything else that the President considers relevant. (7) A person is not allowed to be a sitting member of the Tribunal, or perform any function as a Tribunal member, in relation to a matter in the Tribunal's review jurisdiction if the person was — (a) the decision‑maker in relation to that matter; or (b) a member of a body that was the decision‑maker in relation to that matter. (8) The President may alter who is to constitute the Tribunal for the purpose of dealing with a matter, or anything relating to a matter, and the Tribunal as constituted after the alteration can have regard to any record of the proceeding of the Tribunal in relation to the matter before the alteration or any evidence taken in the proceeding before the alteration. [Section 11 amended: No. 5 of 2008 s. 111.] 12. Contemporaneous exercise of Tribunal's jurisdiction The Tribunal constituted in accordance with this Act or an enabling Act may sit and exercise the jurisdiction of the Tribunal even though the Tribunal differently constituted in accordance with this Act or an enabling Act is at the same time sitting and exercising the jurisdiction of the Tribunal. Part 3 — Jurisdiction of the Tribunal Division 1 — Preliminary matters 13. Sources of jurisdiction (1) A provision of an enabling Act that enables an application to be made to the Tribunal gives the Tribunal jurisdiction to deal with the matter concerned. (2) In addition to the jurisdiction that an enabling Act gives to deal with a matter, the Tribunal has any jurisdiction that this Act gives in relation to that matter. (3) The Tribunal also has the jurisdiction given by section 44(3) and (4). 14. Kinds of jurisdiction A matter in which the Tribunal has jurisdiction comes within either its original jurisdiction or its review jurisdiction. Division 2 — Original jurisdiction 15. What comes within original jurisdiction (1) If the matter that an enabling Act gives the Tribunal jurisdiction to deal with does not involve a review of a decision, the matter comes within the Tribunal's original jurisdiction. (2) A matter referred to the Tribunal under section 44(4) comes within the Tribunal's original jurisdiction. 16. Exercising original jurisdiction (1) In exercising its original jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act. (2) The enabling Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's original jurisdiction. Division 3 — Review jurisdiction Subdivision 1 — General provisions 17. What comes within review jurisdiction (1) If the matter that an enabling Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction. (2) A matter referred to the Tribunal under section 44(3) comes within the Tribunal's review jurisdiction. (3) Where subsection (1) or (2) applies the decision is a reviewable decision for the purposes of this Act. 18. Exercising review jurisdiction (1) In exercising its review jurisdiction the Tribunal is to deal with a matter in accordance with this Act and the enabling Act. (2) The enabling Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction. 19. Relationship of statutory right of review to judicial review (1) In this section — judicial review proceedings means proceedings in which any of the following is sought — (a) a writ of certiorari, mandamus, or prohibition; (b) another prerogative writ; (c) a declaratory judgment. (2) The right given by an enabling Act or section 44(3) to have a decision reviewed by the Tribunal does not exclude any right to take judicial review proceedings in relation to the decision. (3) However — (a) a Tribunal proceeding for the review of a reviewable decision cannot be commenced at the same time as judicial review proceedings are commenced in relation to the decision; and (b) if a Tribunal proceeding for the review of a reviewable decision has commenced, judicial review proceedings cannot subsequently be commenced in relation to the decision; and (c) if judicial review proceedings have commenced in relation to a reviewable decision, a Tribunal proceeding for the review of the decision cannot subsequently be commenced. (4) Subsection (3)(b) applies both during the Tribunal proceeding and after the proceeding has ended but — (a) it does not apply if the proceeding is struck out under section 50(1) because the Tribunal considers that judicial review proceedings would be more appropriate; and (b) it does not affect judicial review proceedings in relation to the decision of the Tribunal. (5) Subsection (3)(c) applies both during the judicial review proceedings and after those proceedings have ended but it does not apply if they are dismissed or struck out — (a) because of procedural defects and not on their substantive merits; or (b) because the court considers them to be inappropriate or considers that a Tribunal proceeding would be more appropriate. (6) This section is intended to operate even if the enactment which gives a right to have a decision reviewed by the Tribunal was enacted after the commencement of this section. Subdivision 2 — Information about reviewable decision 20. Notice of decision and right to have it reviewed to be given by decision-maker (1) If this subsection applies to a reviewable decision, the decision‑maker is to give any person who has a right under an enabling Act or section 44(3) to have the decision reviewed by the Tribunal written notice of — (a) the decision; and (b) that right. (2) Subsection (1) applies to any reviewable decision unless — (a) the decision does not adversely affect the interests of the person who has that right and — (i) it is a decision not to impose a liability, penalty, or any kind of limitation, on a person; or (ii) it is made under an enabling Act that establishes several categories of entitlement to a monetary or other benefit, and it determines a person to be in the most favourable of those categories; or (b) the decision is prescribed by the regulations for the purposes of this paragraph. (3) If the persons who have to be given notice under subsection (1) are not readily identifiable, the decision‑maker is to take steps that are reasonable in the circumstances to give the notice. (4) A contravention of this section does not affect the validity of the decision. (5) If subsection (1) applies in a case in which a person has failed to make a decision within the time limit for making the decision, the person may, if the enabling Act permits, make the decision instead of giving notice under subsection (1). 21. Statement of reasons for decision, request for etc. (1) If this subsection applies to a reviewable decision, a person who has a right under an enabling Act or section 44(3) to have the decision reviewed by the Tribunal may request the decision‑maker to provide the person with a written statement of the reasons for the decision. (2) Subsection (1) applies to any reviewable decision unless — (a) the decision‑maker has already given the person a written statement containing the details described in subsection (5) (whether as part of the decision or separately); or (b) the enabling Act contains other provisions under which the person has, will, could, or could have, become entitled to a written statement of the reasons for the decision containing the details described in subsection (5). (3) A request under subsection (1) has to be made in writing and can be made — (a) at any time within the period of 28 days after the day on which the decision was made; or (b) if section 20(1) applies, at any time before the expiration of the period of 28 days after the day on which notice is given as required under section 20(1). (4) Subject to section 23, a decision‑maker receiving a request under subsection (1) is to comply with the request as soon as practicable, and in any case within the period of 28 days after the request is made. (5) Subject to section 23, the decision‑maker's written statement has to contain — (a) the reasons for the decision; and (b) any findings on material questions of fact that led to the decision, referring to the evidence or other material on which those findings were based. 22. Tribunal may order decision‑maker to provide reasons (1) If, under section 21(1), a person requests a decision‑maker to provide the person with a written statement of the reasons for a reviewable decision and, contrary to section 21(4), the decision‑maker fails to provide the statement, the person may apply to the Tribunal for an order that the decision‑maker provide the statement to the person. (2) The person is to give notice of the application to the decision‑maker within the time specified by the rules. (3) If the Tribunal is satisfied that the person is entitled to be provided with the statement, the Tribunal may order that the decision‑maker provide the statement to the person within the time specified in the order. 23. Exceptions to what has to be provided (1) A statement required by section 21 cannot include any protected matter. (2) If the omission of protected matter under subsection (1) would make the statement false or misleading then, instead of providing the statement, the decision‑maker is to inform the person who requested the statement that it is not being provided because it would be false or misleading for that reason. 24. Decision-makers to give Tribunal reasons etc. for decisions being reviewed If a proceeding for the review of a decision is commenced, the decision‑maker is to provide the following to the Tribunal in accordance with the rules — (a) a statement of the reasons for the decision; (b) other documents and other material in the decision‑maker's possession or under the decision‑maker's control and relevant to the Tribunal's review of the decision. Subdivision 3 — The review 25. Effect of review proceedings on decision being reviewed (1) The commencement of a proceeding for the review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision unless — (a) the enabling Act states otherwise; or (b) the Tribunal makes an order under subsection (2). (2) The Tribunal, on the application of a party or on its own initiative, may make an order staying the operation of a decision that is the subject of a proceeding for review. (3) The Tribunal's power to make an order under subsection (2) is exercisable by — (a) a legally qualified member; or (b) the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member. (4) The Tribunal may make an order under subsection (2) only if it considers that it is desirable to do so after taking into account — (a) the interests of any persons whose interests may be affected by the order; and (b) any submission made by or on behalf of the decision‑maker; and (c) the public interest. (5) Subsection (4)(a) does not require the Tribunal to give any person whose interests may be affected by the order an opportunity to be heard. (6) In making an order under subsection (2), the Tribunal — (a) may require any undertaking as to costs or damages that it considers appropriate; and (b) may make provision for the lifting of the order if specified conditions are met. (7) The Tribunal may assess any costs or damages referred to in subsection (6)(a) and any amount so assessed is a debt recoverable in a court of competent jurisdiction. 26. After review commenced, decision-maker's powers restricted After the commencement of a proceeding for the review of a decision the decision‑maker cannot — (a) vary the decision; or (b) set aside the decision and substitute its new decision, unless — (c) that is permitted by the enabling Act; or (d) the parties to the proceeding consent; or (e) the decision‑maker is invited under section 31 to reconsider the decision. 27. Nature of review proceedings (1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the decision‑maker but may involve the consideration of new material whether or not it existed at the time the decision was made. (2) The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. (3) The reasons for decision provided by the decision‑maker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision. 28. Government policy, when Tribunal to consider (1) The Minister responsible for the administration of the enabling Act may certify in writing that there was, at the time of the reviewable decision, a statement of policy that had been published in the Gazette under a written law and applied to decisions of that kind. (2) If a certificate is given under subsection (1) and the decision‑maker states in the material provided to the Tribunal under section 24 that the decision‑maker had regard to the statement of policy in making the decision, the Tribunal in conducting the proceeding must have regard to the statement of policy as in effect at the time of the review. (3) Subsection (2) does not apply to the extent that the statement of policy is outside power. 29. Tribunal's powers in review jurisdiction (1) The Tribunal has, when dealing with a matter in the exercise of its review jurisdiction, functions and discretions corresponding to those exercisable by the decision‑maker in making the reviewable decision. (2) Subsection (1) does not limit the powers given by this Act or the enabling Act to the Tribunal. (3) The Tribunal may — (a) affirm the decision that is being reviewed; or (b) vary the decision that is being reviewed; or (c) set aside the decision that is being reviewed and — (i) substitute its own decision; or (ii) send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate, and, in any case, may make any order the Tribunal considers appropriate. (4) The fact that a decision is made on reconsideration as required under subsection (3)(c)(ii), does not prevent the decision from being open to review by the Tribunal. (5) The decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision — (a) is to be regarded as, and given effect as, a decision of the decision‑maker; and (b) unless the enabling Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, or having had effect, from the time when the decision reviewed would have, or would have had, effect. (6) Without limiting subsection (5)(a), the decision‑maker has power to do anything necessary to implement the Tribunal's decision. (7) Despite subsection (5)(a), the decision as affirmed, varied, or substituted is not again open to review by the Tribunal as a decision of the decision‑maker. (8) Subsection (5)(a) does not affect an appeal under Part 5 against the Tribunal's decision. (9) To avoid doubt it is declared that this section and section 27 do not extend to requiring or enabling the Tribunal to deal with a matter that is different in essence from the matter that was before the decision‑maker. 30. Decision‑maker to assist Tribunal In a proceeding for the review of a reviewable decision, the best endeavours of the decision‑maker are to be used to assist the Tribunal to make its decision on the review. 31. Tribunal may invite decision‑maker to reconsider decision (1) At any stage of a proceeding for the review of a reviewable decision, the Tribunal may invite the decision‑maker to reconsider the decision. (2) Upon being invited by the Tribunal to reconsider the reviewable decision, the decision‑maker may — (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute its new decision. (3) If the decision‑maker varies the decision or sets it aside and substitutes a new decision, unless the proceeding for a review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision. Part 4 — Tribunal's procedures Division 1 — Introduction 32. Practice and procedure, generally (1) The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules. (2) The Evidence Act 1906 does not apply to the Tribunal's proceedings and the Tribunal — (a) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and (b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. (3) Without limiting subsection (2), the Tribunal may admit into evidence the contents of any document despite non‑compliance with any time limit or other requirement specified in the rules in relation to that document or service of it. (4) The Tribunal may inform itself on any matter as it sees fit. (5) To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or the enabling Act, it is to be as the Tribunal determines. (6) The Tribunal is to take measures that are reasonably practicable — (a) to ensure that the parties to the proceeding before it understand the nature of the assertions made in the proceeding and the legal implications of those assertions; and (b) to explain to the parties, if requested to do so, any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceeding; and (c) to ensure that the parties have the opportunity in the proceeding — (i) to call or give evidence; and (ii) to examine, cross‑examine or re‑examine witnesses; and (iii) to be heard or otherwise have their submissions considered. (7) 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 a proceeding; and (b) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument; and (c) may limit the time available for presenting the respective cases of parties before it at a hearing to an extent that it considers would not impede the fair and adequate presentation of the cases; and (d) may require a document to be served outside the State; and (e) may adjourn a proceeding to any time and place (including for the purpose of enabling the parties to negotiate a settlement or for the purpose of reconsideration of a decision by the decision‑maker under section 31). (8) The Tribunal's powers under subsection (7) are exercisable by — (a) a legally qualified member; or (b) the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member. 33. Practice notes (1) The Rules Committee may issue practice notes about the practice and procedure of the Tribunal. (2) The Rules Committee is to give the Minister a copy of each practice note it issues as soon as practicable after issuing it. (3) A practice note is not a rule and does not form part of the rules. 34. Directions for conduct of proceedings (1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. (2) The Tribunal's power to give directions is exercisable by — (a) a legally qualified member; or (b) the presiding member if the Tribunal as constituted for a hearing does not consist of or include a legally qualified member. (3) The Tribunal may give directions on its own initiative or at the request of a party. (4) A directions hearing conducted or presided over by a legally qualified member may be held for the purposes of this section before any other hearing in the proceeding. (5) The Tribunal may give a direction requiring a party to produce a document or other material, or provide information, to the Tribunal or another party despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents. (6) However if the Tribunal considers that any document is or contains protected matter, the Tribunal cannot direct a party to produce it to another party. 35. Obtaining information from third parties (1) On the application of a party to a proceeding, the Tribunal may order that a person — (a) who is not a party to the proceeding; and (b) who has, or is likely to have, in the person's possession or under the person's control a document or other material that is relevant to the proceeding, produce the document or material to the Tribunal or the party within the time specified in the order. (2) The Tribunal may order a person to produce a document or other material despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents. (3) However if the Tribunal considers that any document is or contains protected matter, the Tribunal cannot order a person to produce it to a party. 36. Who are parties to proceedings (1) A person is a party to a proceeding before the Tribunal if the person is — (a) the applicant; or (b) a person joined under section 38 as a party to the proceeding; or (c) a person intervening in the proceeding; or (d) specified by this Act or the enabling Act to be a party to the proceeding. (2) If the proceeding is in the Tribunal's original jurisdiction, anyone else in respect of whom a decision of the Tribunal is sought is also a party. (3) In a proceeding dealing with a decision of a vocational regulatory body or a matter brought before the Tribunal by a vocational regulatory body or by another person under a vocational Act, a person affected by or the subject of the decision or matter is also a party. (4) If the proceeding is in the Tribunal's review jurisdiction, the decision‑maker is also a party. (5) In a proceeding to which a decision‑maker is a party, the official description rather than the personal name of the decision‑maker is to be used so far as is practicable. 37. Intervening in proceeding (1) The Attorney General may, on behalf of the State, intervene in a proceeding of the Tribunal at any time. (2) The Commissioner referred to in the Fair Trading Act 2010 section 6 may, on behalf of the State, intervene at any time in a proceeding if the Minister responsible for the administration of that Act is responsible for the administration of the enabling Act. (3) The Tribunal may give leave at any time for a person to intervene in a proceeding on conditions, if any, that the Tribunal thinks fit. [Section 37 amended: No. 58 of 2010 s. 183.] 38. Joining person as party to proceeding (1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that — (a) the person ought to be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or (b) the person's interests are affected by the proceeding; or (c) for any other reason it is desirable that the person be joined as a party. (2) The Tribunal may make an order under subsection (1) on the application of any person or on its own initiative. 39. Representation in proceedings (1) At a hearing in a proceeding before the Tribunal a party to the proceeding may appear in person or may be represented by another person, but a party cannot be represented by a person other than a legal practitioner unless — (a) the party is a body corporate and the person is a director, secretary, or other officer of the body corporate; or (b) the party is a public sector body as defined in section 3(1) of the Public Sector Management Act 1994 and the person is a public sector employee authorised by the party to represent it; or (c) the party is a party in the course of or because of the performance, or purported performance, of his or her duties as a public sector employee and the person is another public sector employee authorised by the party to represent him or her; or (d) the person has particular knowledge or experience relevant to the matter that is being dealt with (other than experience obtained as or representing a party in another Tribunal proceeding); or (e) the Tribunal agrees to that person representing the party, and any conditions imposed by the Tribunal are satisfied; or (f) the regulations or the rules authorise it. (2) This section does not authorise a person who could not otherwise lawfully demand or receive any fee or reward for representing a party to demand or receive any fee or reward. (3) A person who has been struck off the roll of practitioners of the Supreme Court or who is suspended from practice as a legal practitioner cannot represent a party. (4) The regulations or the rules may prevent specified persons, or persons of a specified class, from representing a party. 40. Tribunal may appoint representative or guardian (1) If a party is unrepresented, the Tribunal may appoint a person to represent the party. (2) If a person who is not of full legal capacity is a party or potential party to a proceeding or proposed proceeding, the Tribunal may appoint a litigation guardian in accordance with the rules to conduct the proceeding on the person's behalf. 41. Interpreters Unless the Tribunal directs otherwise, a party or a party's representative may be assisted in the course of a proceeding by an interpreter or another person necessary or desirable to make the proceeding intelligible to that party. Division 2 — Preliminary procedures 42. Commencing proceeding (1) A person applying to the Tribunal for review, or otherwise bringing a matter before the Tribunal by referral or other means, has to do so in accordance with this Act except to the extent that the enabling Act states otherwise. (2) The executive officer is to ensure that a person wishing to commence a proceeding before the Tribunal is given reasonable assistance that the person seeks. (3) A proceeding before the Tribunal commences when the application is accepted by the executive officer. (4) Proceedings before the Tribunal cannot be commenced by 2 or more persons jointly unless the facts or circumstances relating to each person's interests are the same or related. [Section 42 amended: No. 5 of 2008 s. 112.] 43. Fee for commencing proceeding The regulations or rules may require the payment of a fee for the commencement of a proceeding and may provide for the stay of the proceeding until the fee is paid or payment is waived or postponed under the regulations or rules. 44. Tribunal may reject application or accept it conditionally (1) Unless otherwise stated in the rules, the executive officer may reject an application on the ground that — (a) it is made by a person not entitled to make it; or (b) it is made after the time limit before which the application is required by the rules or the enabling Act to be made; or (c) it does not otherwise comply with this Act or the enabling Act. (2) If the executive officer accepts an application, the executive officer may impose conditions of a kind specified by the rules on the acceptance. (3) If, under subsection (1) or (2), the executive officer rejects an application or accepts an application on conditions — (a) the applicant may request the executive officer to refer to the Tribunal for a review of the decision to reject the application or accept the application on conditions or a review of any condition imposed; and (b) the executive officer is to refer the decision or condition to the Tribunal for a review if requested under paragraph (a) to do so. (4) If the executive officer believes that an application could be rejected under subsection (1), the executive officer may, instead of deciding whether or not to reject the application, refer the question to the Tribunal. (5) An appeal cannot be made under Part 5 from a decision of the Tribunal on a matter referred to it under subsection (3) or (4). (6) No fee is payable for requesting a matter to be referred under subsection (3). (7) The rules may prescribe to whom, and provide for the manner in which, notice of the acceptance or rejection of an application is to be given. 45. Who has to be given copy of application (1) When an application is accepted by the executive officer the applicant is to give a copy of the application to — (a) each other party; and (b) any other person entitled under this Act or the enabling Act to a copy of, or notice of, the application; and (c) any person to whom the applicant is directed by the Tribunal to give a copy of the application. (2) Subsection (1) does not require the applicant to give a copy of the application to a person mentioned in subsection (1) (a notifiable person) if — (a) the executive officer has given or undertaken to give a copy of the application to the notifiable person; or (b) under subsection (3) the Tribunal dispenses with the requirement to give a copy of the application to the notifiable person; or (c) the rules exempt the person from the requirement to give a copy of the application to the notifiable person. (3) The Tribunal may make an order dispensing with the requirement to give a copy of an application to a notifiable person specified in the order if satisfied — (a) that the applicant has made all reasonable attempts to give a copy of the application to the notifiable person but has been unsuccessful; or (b) that the making and hearing of the application without notice to the notifiable person would not cause injustice. (4) The Tribunal's power under subsection (3) is exercisable only by a legally qualified member. (5) The Tribunal may make an order under subsection (3) on the application of the applicant or on its own initiative. (6) The rules may provide for the manner in which and time within which subsection (1) is to be complied with. (7) To enable subsection (1) to be complied with where the matter that is the subject of the application was brought before the Tribunal by a person other than the applicant, the applicant is to be given a copy of the application in accordance with the rules. 46. Dismissing proceeding on withdrawal or for want of prosecution (1) If the Tribunal gives leave, the applicant may withdraw or agree to the withdrawal of a proceeding or a part of a proceeding. (2) The Tribunal may make an order dismissing or striking out all, or any part, of a proceeding before it if the applicant withdraws or agrees to the withdrawal of the proceeding or that part of it. (3) At any time, the Tribunal may make an order dismissing or striking out all, or any part, of a proceeding before it for want of prosecution. (4) The Tribunal's power to make an order under subsection (3) is exercisable only by a legally qualified member. (5) The Tribunal may make an order under this section on the application of a party or on its own initiative. 47. Frivolous etc. proceedings, dismissal of etc. (1) This section applies if the Tribunal believes that a proceeding — (a) is frivolous, vexatious, misconceived or lacking in substance; or (b) is being used for an improper purpose; or (c) is otherwise an abuse of process. (2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders. (3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member. (4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative. 48. Proceedings being conducted to cause disadvantage, Tribunal's powers as to (1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as — (a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or (b) failing to comply with this Act or the enabling Act; or (c) asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or (d) attempting to deceive another party or the Tribunal; or (e) vexatiously conducting the proceeding; or (f) failing to attend any hearing in the proceeding. (2) If this section applies, the Tribunal may — (a) if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out; (b) if the party causing the disadvantage is not the applicant — (i) determine the proceeding in favour of the applicant and make any appropriate orders; or (ii) order that the party causing the disadvantage be struck out of the proceeding. (3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member. (4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative. 49. No new application after dismissal etc. under s. 46, 47 or 48 without leave If a proceeding is dismissed or struck out under section 46, 47 or 48, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member. 50. More appropriate forum (1) The Tribunal may, at any time, make an order striking out all, or any part, of a proceeding if it considers that the matter, or any aspect of it, would be more appropriately dealt with by another tribunal, a court, or any other person. (2) The Tribunal's power to make an order under subsection (1) is exercisable only by a judicial member. (3) If the Tribunal makes an order under subsection (1), it may refer the matter, or any aspect of it, to the relevant tribunal, court, or person if it considers it appropriate to do so. (4) The Tribunal may make an order under subsection (1) on the application of a party or on its own initiative. 51. Consolidating proceedings (1) The Tribunal may direct that 2 or more proceedings that concern the same or related facts and circumstances — (a) be consolidated into the one proceeding; or (b) remain as separate proceedings but be heard and determined together. (2) The Tribunal's power to give a direction under subsection (1) is exercisable by a sitting member for either of the proceedings who is a legally qualified member. (3) If proceedings are consolidated, evidence given in the consolidated proceeding is admissible in relation to matters involved in either of the proceedings that were consolidated. 51A. Splitting proceedings (1) The Tribunal may direct — (a) that any aspect of any proceedings be heard and determined separately; (b) that proceedings commenced by 2 or more persons jointly be split into separate proceedings. (2) The Tribunal's power to give a direction under subsection (1) is exercisable by a sitting member for the proceedings who is a legally qualified member. [Section 51A inserted: No. 5 of 2008 s. 113.] 52. Compulsory conference (1) At an initial directions hearing or at any other time before any other hearing in a proceeding, the Tribunal may require parties to the proceeding to attend a compulsory conference. (2) The President is to allocate a member of the Tribunal to preside at a compulsory conference. (3) The purpose of a compulsory conference is to identify and clarify the issues in the proceeding and promote the resolution of the matters by a settlement between the parties. (4) Unless the Tribunal member presiding at a compulsory conference directs otherwise, it is to be held in private. (5) Except to the extent that the rules may specify the procedure for a compulsory conference, the Tribunal member presiding at a compulsory conference may determine the procedure for the conference. (6) If a settlement appears to be reached at a compulsory conference, the Tribunal member presiding may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement. (7) The Tribunal member who presided at a compulsory conference is not eligible to constitute, or be one of the members constituting, the Tribunal for the purpose of otherwise dealing with the proceeding. 53. Failure to attend compulsory conference If a party does not attend a properly convened compulsory conference — (a) the conference may proceed at the appointed time in the party's absence; and (b) if a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may — (i) determine the proceeding adversely to the absent party and make any appropriate orders; or (ii) direct that the absent party be struck out of the proceeding. 54. Mediation (1) At an initial directions hearing or at any other stage of a proceeding, the Tribunal may refer the matter, or any aspect of it, for mediation by a person specified as a mediator by the Tribunal. (2) The person specified as a mediator has to be a person who has been approved by the President as a person who may act as a mediator. (3) The referral may be made with or without the consent of the parties. (4) The purpose of a mediation is to achieve the resolution of the matters by a settlement between the parties. (5) The rules may specify how notice of the mediation is to be given, how the mediation is to be conducted, and the fees to be paid by a party for the mediation. (6) Unless the mediator directs otherwise, the mediation is to be held in private. (7) Except to the extent that the rules may specify the procedure for a mediation, the mediator may determine the procedure for the mediation. (8) If the mediator is a Tribunal member and a settlement appears to be reached at the mediation, the mediator may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement. (9) If a settlement is not reached at the mediation or the mediator is not a Tribunal member, the mediator is to report on the outcome of the mediation to the Tribunal as constituted when it made the referral. (10) If the mediator is a Tribunal member, the member cannot take any further part in dealing with the proceeding after the mediation unless all parties agree to him or her doing so. 55. Evidence of certain things at compulsory conference or mediation inadmissible later Evidence of anything said or done in the course of a compulsory conference or mediation is not admissible at any later stage of the proceeding unless — (a) all parties agree to the admission of the evidence; or (b) it is evidence of directions given or orders made at a compulsory conference or mediation or the reasons for those directions or orders; or (c) it is relevant to — (i) a proceeding for an offence in relation to the giving of false or misleading information; or (ii) a proceeding under section 100; or (iii) a proceeding in relation to an order made under section 53(b)(i). 56. Settling proceedings (1) If the parties agree in writing to settle a proceeding that is before the Tribunal, the Tribunal may make any orders necessary to give effect to the settlement. (2) The Tribunal cannot make an order under subsection (1) unless it 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. (3) The Tribunal may, with the consent of the parties, vary the terms of an order under subsection (1) if to do so would reflect the intention of the agreement. (4) Subsections (2) and (3) also apply to an order under section 52(6) or 54(8). Division 3 — Proceedings and hearings 57. Who presides (1) If, for dealing with a particular matter, the Tribunal is constituted by 2 or more members, the most senior of them is to preside at a proceeding of the Tribunal. (2) The seniority of members of the Tribunal depends on which of the offices held takes precedence and, if that does not determine a member's seniority, the matter is to be resolved by the President. (3) The order of precedence of offices is — (a) President; (b) Deputy President; (c) senior member; (d) ordinary member. 58. Decision of Tribunal if 2 or more sitting members If the Tribunal is constituted by 2 or more sitting members, a question they are required to decide is resolved, unless section 59 applies, according to the opinion of the majority of them but, if their opinions on the question are equally divided, the question is to be resolved according to the opinion of the presiding member. 59. Questions of law, deciding (1) In this section — question of law means a question of law arising in a proceeding for decision by the Tribunal and includes a question of mixed law and fact. (2) Subject to subsection (10), a question of law is decided by the Tribunal according to the opinion of the presiding member if that member is a legally qualified member. (3) If the presiding member is not a legally qualified member but there is at least one sitting member who is a legally qualified member, a question of law is decided by the Tribunal according to the opinion of that legally qualified member, or according to the unanimous opinion of those legally qualified members if there are 2 or more of them. (4) The presiding member may choose to refer a question of law to the President whether or not the question has been decided under subsection (2) or (3). (5) If subsection (3) applies to a question of law, the presiding member is to refer the question to the President if — (a) the presiding member is requested to do so by a sitting member who is a legally qualified member (whether or not the question has been decided under subsection (3)); or (b) for any reason the question has not been decided under subsection (3). (6) Subsection (2) no longer applies to a question of law if the question is referred to the President under subsection (4). (7) Subsection (3) no longer applies to a question of law if the question is referred to the President under subsection (4) or (5). (8) If no sitting member is a legally qualified member, the presiding member is to refer a question of law to the President. (9) Subsection (10) applies to the resolution of a question of law if the presiding member is the President or the question is referred to the President under subsection (4), (5) or (8). (10) If this subsection applies to a question of law — (a) the question is decided by the Tribunal according to the opinion of the President or, if the President gives the question to another legally qualified member of the Tribunal for resolution, according to the opinion of that other member; or (b) the President may refer the question to the Supreme Court for decision by the Supreme Court as long as it is not a question of mixed law and fact. 60. Electronic hearings and proceedings without hearings (1) If the Tribunal thinks it appropriate, it may allow the parties and their representatives and any witnesses (or one or more of them) to participate in a hearing in a proceeding by means of telephones, video links, or any other system or method of communication. (2) If the Tribunal thinks it appropriate, it may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing. (3) If the Tribunal conducts a proceeding in accordance with this section, the Tribunal is to take steps to ensure that the public has access to, or is precluded from access to, matters disclosed in the proceeding to the same extent as if the proceeding had been heard before the Tribunal with the attendance in person of all persons involved in the proceeding. (4) Provisions of this Act applying in relation to hearings (other than section 61 or 63) apply with any necessary modifications in relation to a proceeding conducted in accordance with subsection (2). 61. Hearings to be public; exceptions (1) Unless another provision of this Act provides otherwise, hearings of the Tribunal are to be held in public. (2) On the application of a party or on its own initiative the Tribunal may, in the circumstances described in subsection (4), order that a hearing or any part of it be held in private and that only specified persons may be present. (3) The Tribunal's power to make an order under subsection (2) is exercisable by — (a) a legally qualified member; or (b) the presiding member if the Tribunal as constituted for a hearing does not consist of or include a leg