Division 2Division 2 General powers of the Tribunal
39 Procedure at sittings of the Tribunal
The procedure for the conduct of business at any sitting of the Tribunal shall, subject to this Part and the regulations, be as determined by the Senior Chairperson.
The Senior Chairperson, or the Chairperson selected by the Senior Chairperson, as the case may require, shall preside as chairperson at a sitting of the Tribunal.
(1) At a sitting of the Tribunal, each member of the Tribunal present shall have one vote.(2) At a sitting of the Tribunal, the decision on any matter arising for the determination of the Tribunal of a majority of the members of the Tribunal present and voting shall, except as provided by section 31 (1B) subsection (3), be the decision of the Tribunal.(3) The decision of the Senior Chairperson or a Chairperson, as the case may be, at a sitting of the Tribunal on any question of law or procedure which may arise in the hearing of an appeal before the Tribunal shall be the decision of the Tribunal.(4) Where a Chairperson presides at a sitting of the Tribunal, the Chairperson shall, where the Chairperson does not have a legal qualification referred to in section 13 (2), and may, in any other case, consult with the Senior Chairperson before deciding any question of law or procedure which may arise in the hearing of an appeal before the Tribunal.
42 Order of presentation of cases
(1) At the hearing of an appeal by the Tribunal, the employer’s case shall be presented first.(2) Nothing in subsection (1) removes from an appellant or any other person the onus of proving any ground on which the appellant relies.
(1) The Tribunal is not bound by the rules or practice as to evidence and may, subject to subsection (2), inform itself on any matter in such manner as it thinks fit.(2) The Tribunal shall not inform itself on, or take into consideration, any matter which has not been disclosed in evidence at a sitting of the Tribunal if the matter is one which ought, in the interests of justice, to be available for challenge or testing by the persons entitled to be present at the sitting.(3) Nothing in subsection (2) prevents the Tribunal from informing itself on, or taking into consideration, any matter of which it is entitled to take judicial notice.
44 Discovery of documents, attendance of witnesses etc
(1) In relation to an appeal, the Senior Chairperson or a Chairperson, by instrument in writing:(a) may require a person, being an employer or any person entitled, pursuant to section 37 (2) or 38 (2), to be present at a sitting of the Tribunal for the purpose of hearing the appeal, to produce, on or before such date as is specified in the instrument, for the inspection of any other such person so specified, any document or exhibit relevant to the appeal and which is so specified,(b) may require a person referred to in paragraph (a) to do either or both of the following things, namely:(i) to lodge with the Tribunal, on or before such date as is specified in the instrument, a written case setting out the arguments on which the person relies in relation to the appeal,(ii) to serve, on or before such date as is specified in the instrument, on any other such person so specified, a copy of a written case referred to in subparagraph (i),(c) may require the persons referred to in paragraph (a) to lodge with the Tribunal, on or before such date as is specified in the instrument, a statement of such facts or matters as are agreed upon between them in relation to the appeal,(d) may require any person to appear before the Tribunal and to give evidence, and(e) may require any person to produce before the Tribunal any document or exhibit relevant to the appeal.(2) A person who fails or neglects to comply with a requirement made of the person under subsection (1) is guilty of an offence against this Act and liable on conviction before the Local Court to a penalty not exceeding 5 penalty units.
Any member of the Tribunal may administer an oath to any person giving evidence before the Tribunal.
(1) The Tribunal may from time to time adjourn the hearing of an appeal to such times, dates and places and for such reasons as it thinks fit.(2) In the absence from a sitting of the Tribunal of one or two members of the Tribunal, the remaining member or members may exercise the Tribunal’s powers under subsection (1).
47 Lapsing of appeal and dismissal of proceedings
(1) An appeal lapses if:(a) the appellant withdraws the appeal by notifying the Registrar in writing or, if the Tribunal has commenced to consider the appeal, by informing the Tribunal, or(b) in the case of an appeal under section 20:(i) the position no longer exists, or(ii) the appointment against which the appeal is made lapses for any reason.(2) Proceedings in relation to an appeal under section 20 may be dismissed at any time by the Tribunal if:(a) the Tribunal considers the appeal to be frivolous or vexatious, or(b) the appellant is, in the opinion of the Tribunal, not able to put forward an arguable case in favour of his or her appointment to the position concerned.(3) The Tribunal is to give the appellant an opportunity to respond to the proposed dismissal of proceedings under subsection (2).
(1) If an appeal has been pending for more than 6 months after notice of the appeal was lodged and the Tribunal has not commenced to hear the matter, the Registrar may by notice in writing served on the appellant require the appellant to show cause before the Registrar, at a time, date and place specified in the notice, why the appeal should not be struck out.(2) The Registrar:(a) upon failure of the appellant to appear in response to the notice, or(b) not being satisfied that sufficient cause has been shown as required by the notice,may, by order signed by the Registrar, strike out the appeal and, in that event, shall in due course so notify the parties to the appeal.
48 Decisions with respect to appeals
(1) The Tribunal, in relation to an appeal under section 20, may decide to allow or disallow the appeal.(2) The Tribunal, in relation to an appeal under section 24, may decide to allow or disallow the appeal or make such other decision with respect to the appeal as it thinks fit.(2A) Without limiting the generality of subsection (2), if in relation to an appeal under section 24 it appears to the Tribunal that the employer failed to comply with the rules of procedural fairness in making the decision appealed against, the Tribunal:(a) is not required to allow the appeal solely on that basis and may proceed to decide the appeal on its merits, or(b) may quash the decision and remit the matter back to the employer with such directions (if any) as to which stage of the disciplinary process in relation to the matter may be recommenced by the employer.(3) The decision of the Tribunal in respect of an appeal shall, except as provided by Part 5, be final and shall be given effect to by the employer against whose decision the appeal was brought.(4) The decision of the Tribunal in respect of an appeal shall be in the form of an instrument in writing signed by the Senior Chairperson or Chairperson before whom the appeal was heard and shall include the reasons for the decision.
48A Orders by Tribunal with respect to payment of salary and continuity of employment
(1) Without limiting section 48, if the Tribunal decides to allow an appeal under section 24, the Tribunal may:(a) if the employee has paid a fine imposed by the employer or his or her pay has been forfeited—order the employer to repay the amount of any such fine or forfeited pay, and(b) order the employer to pay the employee an amount stated in the order that does not exceed the remuneration the employee would, but for the decision of the employer, have received from the employer, and(c) order that any period of employment of the employee with the employer is taken not to have been broken by the decision of the employer.(2) Any such order by the Tribunal must be given effect to by the employer.(3) Nothing in subsection (1) enables the Tribunal to make an order for compensation in the case where a person is not reinstated or does not continue in employment.
48B Reconstitution of Tribunal during hearing
(1) The Senior Chairperson may select a person to replace the member or one of the members constituting the Tribunal after the hearing of an appeal by the Tribunal has commenced if:(a) the member becomes unavailable for any reason, or ceases to be a member, before the appeal is determined, and(b) the parties consent.(2) The Tribunal as so reconstituted is to have regard to the evidence that was given and decisions that were made in relation to the appeal before the Tribunal was reconstituted.(3) If one or more of the parties do not consent to the reconstitution of the Tribunal under this section, the proceedings are to be reconsidered by the Tribunal otherwise constituted in accordance with this Act.(4) If proceedings are reconsidered by the Tribunal, the Tribunal may, for the purposes of the proceedings, have regard to any record of the proceedings before the Tribunal as previously constituted including a record of any evidence taken in the proceedings.(5) A person selected under subsection (1):(a) to replace the Senior Chairperson must be a Chairperson, and(b) to replace a Chairperson must be the Senior Chairperson or a Chairperson, and(c) to replace an employer’s representative or an employee’s representative must be a person whose name is included in the panel of persons nominated by the appellant’s employer or the appropriate association of employees (as the case may be) in accordance with this Act.(6) For the purpose of applying section 48 (4) to a decision of the Tribunal reconstituted under this section in respect of an appeal, the appeal is taken to be heard before the Tribunal as reconstituted.(7) Nothing in this section prevents more than one member of the Tribunal being replaced in accordance with this section if the Tribunal is constituted by more than one member.
(1) Where proceedings before the Tribunal are recorded, they shall be recorded in such manner as the Senior Chairperson directs.(2) A record of proceedings before the Tribunal which is made by means of shorthand, stenotype machine or sound-recording apparatus shall not be transcribed unless the Senior Chairperson or a Chairperson so determines or the transcription is required by law.(3) Except as provided by subsection (4), a transcription made under subsection (2) shall be supplied only to a member of the Tribunal approved by the Senior Chairperson or by a Chairperson or for the purposes of an appeal against a decision of the Tribunal.(4) A copy of a record of proceedings before the Tribunal or a transcription made under subsection (2) in respect of proceedings at a formal sitting of the Tribunal may, at the discretion of the Senior Chairperson presiding at the proceedings or sitting or the Chairperson so presiding, be supplied to any person in accordance with such terms and conditions as the Minister may, from time to time, determine.(5) Where, within 6 months after an appeal is determined, no transcription of the proceedings before the Tribunal on that appeal has been made under subsection (2), the record of those proceedings may be destroyed.
50 Application of Defamation Act 2005 to proceedings of Tribunal
Section 27 of the Defamation Act 2005 makes provision for a defence of absolute privilege in respect of publications of defamatory matter in the course of proceedings of the Tribunal.Note. Section 27 (2) (b) of the Defamation Act 2005 provides that the defence of absolute privilege is available in respect of defamatory matter that is published in the course of proceedings of an Australian court or Australian tribunal, including (but not limited to) the following:(a) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process),(b) the publication of matter while giving evidence before the court or tribunal,(c) the publication of matter in any judgment, order or other determination of the court or tribunal.The term Australian tribunal is defined in section 4 of that Act to mean any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).
The Government and Related Employees Appeal Tribunal is an Australian tribunal for the purposes of the Defamation Act 2005 because it is a tribunal that has the power under this Act to take evidence from witnesses under oath. See sections 37 (4) (c), 38 (1) and 45.
51 Offences relating to secrecy of information
A person appearing before the Tribunal on the hearing of an appeal shall not be guilty of an offence against or otherwise be in breach of any law relating to the confidentiality or secrecy of information in respect of anything disclosed by the person to the Tribunal which is relevant to the appeal.
52 Authentication of documents
Every document requiring authentication by the Tribunal may be sufficiently authenticated if signed by the Senior Chairperson or a Chairperson.
53 Judicial notice of certain signatures
Judicial notice shall be taken of the signature of the Senior Chairperson, a Chairperson or the Registrar when appearing on a document issued by the Tribunal.