Chapter 2 Establishment of Tribunal
(1) The Administrative Decisions Tribunal of New South Wales is established by this Act.(2) The Tribunal has such functions as are conferred or imposed on it by or under this or any other Act or law.
(1) The Tribunal consists of the following members:(a) a President,(b) Deputy Presidents,(c) non-presidential judicial members,(d) non-judicial members.(2) The President and the Deputy Presidents of the Tribunal are referred to in this Act as presidential judicial members.
13 Appointment of members of Tribunal
(1) Any presidential judicial member is to be appointed by the Governor by commission under the public seal of the State.(2) Any non-presidential judicial member or a non-judicial member is to be appointed by the Minister.(3) The instrument of appointment is to specify whether a member has been appointed as:(a) the President, or(b) a Deputy President, or(c) a non-presidential judicial member, or(d) a non-judicial member.(4) A member may be appointed on a full-time basis or a part-time basis. However, the President is taken to be appointed on a full-time basis.
14 Judicial officers acting as members of Tribunal
(1) Classes of judicial officers who may act as members may be prescribed
Any judicial officer who belongs to a class of 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 judicial officer to act as member
The President may appoint any 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 co-option 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 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 or a non-presidential judicial 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 proceeding
A 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) Definition
In this section:judicial officer includes a retired 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.
14A Certain members of state tribunals acting as members of Tribunal
(1) A state tribunal member 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 for that class of state tribunal member.(2) Any person who is appointed to act as a member by or under this section:(a) holds office as a member of a class (whether judicial or non-judicial) specified in the regulations, 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 office as a member of another state tribunal.(3) A state tribunal member who has acted as a member of the Tribunal 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.(4) In this section:state tribunal member means a member of any tribunal (other than the Tribunal) established by an Act of the Parliament of New South Wales.
15 Appointment of acting members for a period
(1) The Governor may appoint, by commission under the public seal of the State, 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 appoint as an acting non-presidential judicial member or an acting non-judicial member a person qualified for appointment as a non-presidential judicial member or non-judicial member 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 non-presidential judicial member or acting non-judicial member has the functions of, and is taken to be, a Deputy President, non-presidential judicial member or non-judicial member (as the case requires) subject to any conditions or limitations specified in the instrument of appointment.
(1) The President or a Deputy President may be appointed by the Governor as the Divisional 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.(2) A Divisional Head ceases to hold office as a Divisional Head if he or she:(a) is removed from office as a Divisional Head by the Governor, or(b) resigns the office by instrument in writing 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 Divisional Head under subsection (2).(4) The appointment of the President or a Deputy President as a Divisional Head is to be made in accordance with any applicable provisions of Schedule 2.
17 Qualifications for membership
(1) The President
A person is eligible to be appointed as the President only if the person is a Judge of the District Court.(2) Deputy Presidents and non-presidential judicial members
A person is eligible to be appointed as a Deputy President or as a non-presidential judicial member only if the person is:(a) a person who holds or has held a judicial office of this State or of the Commonwealth, another State or a Territory, or(b) an Australian lawyer (within the meaning of the Legal Profession Act 2004) of at least 7 years standing.(3) Non-judicial members
A person is eligible to be appointed as a non-judicial member only if the person has, in the opinion of the Minister, special knowledge or skill in relation to any class of matters in respect of which the Tribunal has jurisdiction.(4) (Repealed)
18 Other provisions relating to members of Tribunal
Schedule 3 has effect with respect to the members of the Tribunal.
19 Tribunal to exercise functions in Divisions
(1) The Tribunal is to exercise its functions in the Divisions of the Tribunal specified in Schedule 1, except when the Tribunal is constituted by an Appeal Panel.Note. The Divisions of the Tribunal are presently as follows:Community Services Division
Equal Opportunity Division
General Division
Legal Services Division
Retail Leases Division
Revenue Division
(2) The regulations may amend Schedule 1:(a) by inserting the name of a Division of the Tribunal, or(b) by omitting, substituting or altering the name of any Division previously inserted by regulation.
20 Composition of Division and allocation of functions to Division
(1) Each Division of the Tribunal is to be composed of the members assigned to the Division by Schedule 2.(2) Each Division of the Tribunal is to exercise the functions of the Tribunal allocated to that Division by Schedule 2. Those functions do not include the functions of an Appeal Panel of the Tribunal.
21 Assignment of members to Divisions
(1) The President is assigned to each Division.(2) A Divisional Head is assigned to the Division in respect of which he or she is appointed as the Divisional Head.(3) Subject to this Act, the President:(a) is to assign each member (other than the President or a Divisional Head) to one or more Divisions, and(b) may assign a member who is a Divisional Head to one or more Divisions in respect of which the member is not the Divisional Head,and may vary any such assignment at any time.(4) An assignment of a member to a Division:(a) is to be made in accordance with any applicable provisions of Schedule 2 or of this or any other Act, and(b) is subject to any limitations specified in the member’s instrument of appointment.Note. Schedule 2, in some cases, provides for the assignment of members to particular Divisions by their instruments of appointment or a subsequent instrument. Schedule 5 appoints certain members of abolished bodies to the Tribunal and assigns them to Divisions of the Tribunal.
22 Constitution of the Tribunal for particular proceedings (including Appeal Panel for external appeals)
(1) In exercising any of its functions (other than the functions of an Appeal Panel), the Tribunal is to be constituted by one or more Division members of the Division to which the function concerned is allocated.(1A) In exercising its functions in relation to an external appeal (other than an external appeal referred to in subsection (1B)), the Tribunal is to be constituted by an Appeal Panel consisting of at least 3 members assigned by the President to the Panel for the purpose of the proceedings.(1B) In exercising its functions in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 50 of the NSW Trustee and Guardian Act 2009, the Tribunal is to be constituted by an Appeal Panel consisting of:(a) 1 presidential judicial member, and(b) 1 other judicial member, and(c) 1 non-judicial member, appointed on the recommendation of the Minister administering the Guardianship Act 1987, who has experience in dealing with persons who have a disability (as referred to in section 3 (2) of that Act).(2) The President, or relevant Divisional Head (subject to any direction of the President), may give directions as to the members who are to constitute the Tribunal for the purposes of any particular proceedings (including proceedings in relation to an external appeal).(3) In giving a direction as to the members who are to constitute the Tribunal for the purposes of any particular proceedings, the President or relevant Divisional Head is to have regard to the following matters:(a) the degree of public importance or complexity of the subject-matter of the proceedings,(b) if the proceedings concern the review of a reviewable decision—the nature and status of the office of the administrator who made the reviewable decision,(b1) if the proceedings concern the hearing of an external appeal—the nature and status of the decision-maker who made the decision concerned,(c) the need for any of the members to have special knowledge or experience in the subject-matter of the proceedings,(d) such other matters as the President or the Divisional Head considers relevant.(3A) There may be more than one sitting of an Appeal Panel constituted under this section at the same time.(4) Except in relation to an external appeal referred to in subsection (1B), the provisions of this section are subject to any contrary provision in this or any other Act. In particular, the Tribunal is to be constituted subject to the provisions for the constitution of the Tribunal specified in Schedule 2 in relation to the classes of matters specified in that Schedule.(5) This section does not apply to the exercise of the functions of an Appeal Panel of the Tribunal in relation to an internal appeal.
23 Amendment of Schedule 2 (Composition and functions of Divisions)
(1) The regulations may amend Schedule 2 to make provision for:(a) the composition of a Division with respect to the members to be assigned to it, or(b) the allocation of any function of the Tribunal to a Division, or(c) the constitution of the Tribunal to exercise any of its functions.(2) However, any such regulation cannot be made in relation to any matter specified in Schedule 2 that was inserted by an Act (or was included in this Act when it was enacted) unless the matter relates to a function (or the exercise of a function) to which clause 2 (2) of Part 4 of Schedule 2 relates.Note. Clause 2 (2) of Part 4 of Schedule 2 provides that any function of the Tribunal that is not specifically allocated to a Division by that Schedule is allocated to the General Division of the Tribunal.
24 Appeal Panel of the Tribunal (internal appeals)
(1) In exercising its functions in relation to an internal appeal, the Tribunal is to be constituted by an Appeal Panel consisting of at least 3 members assigned by the President to the Panel for the purpose of the proceedings.(2) An Appeal Panel constituted under this section must include:(a) 1 presidential judicial member (whether or not the member is a Division member of the Division in which the decision under appeal was made), and(b) 1 other judicial member who need not be a Division member of the Division in which the decision under appeal was made unless the presidential judicial member is not such a Division member, and(c) 1 non-judicial member who is such a Division member.(3) There may be more than one sitting of an Appeal Panel constituted under this section at the same time.(4) This section is subject to any contrary provision in this or any other Act.
24A Constitution of Tribunal for exercise of interlocutory and ancillary functions
(1) In this section:ancillary function means any of the following:
(a) the making of an order or other decision by the Tribunal (including an Appeal Panel of the Tribunal) in relation to the awarding of costs in proceedings in the Tribunal,(b) the function of determining whether the Tribunal (including an Appeal Panel of the Tribunal) has jurisdiction to deal with a matter.interlocutory function means the making of any order or other decision by the Tribunal (including an Appeal Panel of the Tribunal) in proceedings in respect of any of the following:
(a) stays or adjournments,(b) prohibition or restriction of the disclosure, broadcast or publication of matters by order under section 75,(c) summonses,(d) extensions of time for any matter (including for the lodgment of applications or appeals),(e) evidential matters,(f) disqualification of members,(g) joinder of parties to proceedings,(h) summary dismissal of proceedings,(i) any other interlocutory issue before the Tribunal.(2) In exercising any of its interlocutory or ancillary functions, the Tribunal may be constituted by:(a) in the case of a function of the Tribunal in relation to an internal appeal or external appeal—one presidential judicial member, or(b) in the case of a function of the Tribunal otherwise than in relation to an internal appeal or external appeal—one judicial member of the Division to which the function concerned is allocated.(2A) The President, or relevant Divisional Head (subject to any direction of the President), may give directions as to the members who are to constitute the Tribunal for the purposes of exercising any of its interlocutory or ancillary functions.(3) Nothing in this section prevents a differently constituted Tribunal from exercising an interlocutory or ancillary function or any other function of the Tribunal if the Tribunal is duly constituted to exercise that function apart from this section.(4) This section has effect despite any other requirement of this Act or any other enactment relating to the constitution of the Tribunal for the exercise of its functions.
(1) The President is (subject to this Act and the rules of the Tribunal) to direct the business of the Tribunal.(2) The President is to facilitate the adoption of good administrative practices in the conduct of the business of the Tribunal.(3) The President may determine the places and times for sittings of the Tribunal.
(1) As soon as practicable after 30 June (but on or before 31 December) of each year, the President must provide the Minister with a report on the operations of the Tribunal for the period ending on 30 June in that year.(2) The Minister is to lay the report, or cause it to be laid, before both Houses of Parliament as soon as practicable after receiving the report.(3) If a House of Parliament is not sitting when the Minister seeks to lay the report before it, the Minister is to cause a copy of the report to be presented to the Clerk of that House of Parliament.(4) The report:(a) is, on presentation and for all purposes, taken to have been laid before the House, and(b) may be printed by authority of the Clerk of the House, and(c) if so printed, is taken to be a document published by or under the authority of the House, and(d) is to be recorded:(i) in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, and(ii) in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly,on the first sitting day of the House after receipt of the copy of the report by the Clerk.
27 Appointment of Registrar and staff
A Registrar, Deputy Registrars and such other staff as may be necessary for the purposes of this Act are to be employed under Chapter 1A of the Public Sector Employment and Management Act 2002.
28 Functions of Registrars and Deputy Registrars
(1) The Registrar has the following functions:(a) to assist the President in exercising the President’s functions under section 25, and(b) such other functions as may be conferred or imposed on the Registrar by or under this or any other Act or law.(2) A Deputy Registrar may exercise the functions of the Registrar:(a) as directed by the Registrar, and(b) during the absence of, or a vacancy in the office of, the Registrar.(3) Anything done or omitted to be done by a Deputy Registrar in exercising a function of the Registrar has effect as if it had been done or omitted to be done by the Registrar.(4) The regulations may make provision for or with respect to the functions of the Registrar.
(1) The Minister may appoint persons to be assessors of the Tribunal who, in the opinion of the Minister, have special knowledge of, or experience in, any area within the jurisdiction of the Tribunal.(2) An assessor may be appointed on a full-time or part-time basis.(3) Schedule 4 has effect with respect to assessors.
(1) The President may appoint any person whose name is on the list compiled under section 31 to act as an assessor:(a) for a period not exceeding 12 months, or(b) for the purpose of particular proceedings before the Tribunal.(2) Any person who is appointed to act as an assessor under this section has and may exercise all of the functions of an assessor while acting as an assessor.
31 Lists of persons eligible to be appointed to act as assessors
(1) The Minister may compile a list or lists of persons considered by the Minister to be suitable to be appointed to act as assessors under section 30.(2) Different lists may be compiled for different types of matters or to take account of any other factors.(3) A person may be included in a list under this section only if the person consents to being included in the list.(4) In compiling any list, the Minister may consult with the President.(5) The Minister may amend or revoke any list compiled under this section for any reason that the Minister considers appropriate.(6) The Minister is to review at least annually any list compiled under this section.(7) The Minister may delegate any of the Minister’s functions under this section (other than this power of delegation) to the head of the Department administering this Act.
32 Functions of assessors generally
An assessor has:(a) the functions conferred or imposed by or under Division 2, and(b) such other functions as are conferred or imposed on the assessor by or under this or any other Act or law.Note. Functions conferred or imposed on assessors (other than by or under Division 2) include the function of conducting a preliminary conference under section 74.
(1) If proceedings are pending in the Tribunal, the Tribunal or the President may, with the consent of the parties, direct that an inquiry into any issue raised in, or other matter connected with, the proceedings be made by a single assessor.(2) The assessor making such an inquiry is to make a report to the Tribunal.(3) If a report is made to the Tribunal under this section, the Registrar is to furnish a copy of the report to each of the parties as soon as is practicable.(4) The Tribunal may, with the consent of the parties, adopt any findings or observations set out in a report under this section.(5) An assessor, in making an inquiry under this section, has and may exercise the functions of the Tribunal under section 83 (Powers in relation to witnesses).(6) An assessor who has made an inquiry under this section in relation to any proceedings is disqualified from further participation in those proceedings unless the parties otherwise agree.
(1) If proceedings are pending in a Division of the Tribunal, the relevant Divisional Head may direct that the proceedings (or part of the proceedings) be determined by one or more assessors if:(a) the parties consent to the making of the direction, or(b) the proceedings belong to a class of proceedings prescribed by the regulations for the purposes of this section.(2) Subject to this Act and the rules of the Tribunal, the assessor or assessors determining the proceedings under this section have and may exercise the functions of the Tribunal (other than its functions under this section).(3) The decision of the assessor or assessors is taken to be the decision of the Tribunal.(4) If proceedings are directed to be determined by two or more assessors:(a) one of those assessors directed to do so by the relevant Divisional Head is to preside at the proceedings, and(b) if the assessors are divided in opinion as to the decision to be made on any question:(i) if there is a majority of the one opinion—the question is to be decided according to the opinion of the majority, or(ii) in any other case—the question is to be decided according to the opinion of the assessor presiding.(5) The assessor or assessors may, of the assessor’s or the assessors’ own motion or on the request of a party, refer a question of law (including the question whether a particular question is one of law) arising in the proceedings to the relevant Divisional Head for determination by a judicial member.(6) If a question is referred to the relevant Divisional Head under subsection (5):(a) a judicial member is to determine the question and then remit the determination to the assessor or assessors, and(b) the assessor or assessors may continue to determine the proceedings unless the Divisional Head otherwise directs, but only if:(i) no order or decision to which the question is relevant is made until a judicial member has determined the question, and(ii) no order or determination is made that is inconsistent with the determination of the question by a judicial member.(7) A decision of a judicial member that a question referred under subsection (5) need not be determined because it is not relevant to the particular proceedings is taken to be the member’s determination of the question for the purposes of subsection (6).
35 Assessors sitting with the Tribunal
(1) If proceedings are pending in the Tribunal, the Tribunal may, in determining the proceedings or any part of the proceedings, be assisted by one or more assessors.(2) An assessor assisting the Tribunal may under this section assist and advise the Tribunal, but is not to adjudicate on any matter before the Tribunal.(3) The Tribunal may commence or continue to determine the proceedings or any part of the proceedings:(a) without the assistance of an assessor who is not available or has ceased to be available to assist in the determination of the proceedings or part of the proceedings, and(b) without the assistance of assessors generally if, in the opinion of the Tribunal, the proceedings or part of the proceedings concern or concerns a question of law only.