Schedule 3 Provisions relating to members of Tribunal
(Section 18)
(1) If the President is absent from duty, the most senior Deputy President is to be Acting President unless the Minister makes an appointment under subclause (2).(2) The Minister may appoint a Deputy President to be Acting President during the absence of the President from duty.(3) The Minister may make any appointment for a particular absence or for any absence that occurs from time to time.(4) An Acting President has the functions of the President and anything done by an Acting President in the exercise of those functions has effect as if it had been done by the President.(5) In this clause, absence from duty includes a vacancy in the relevant office.
Subject to this Schedule and Part 2 of Chapter 2, a member holds office for a period not exceeding 3 years specified in the member’s instrument of appointment, but is eligible for re-appointment.
The regulations may make provision for the oaths to be taken by members of the Tribunal.
5 Protection and immunities of member
A member of the Tribunal has, in the performance of functions performed as a member, the same protection and immunities as a Judge of the Supreme Court.
(1) A member of the Tribunal appointed on a full-time basis is entitled to be paid:(a) remuneration in accordance with the Statutory and Other Offices Remuneration Act 1975, and(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the member.(2) A member appointed on a part-time basis is entitled to be paid:(a) such remuneration as is determined by the Minister, and(b) such travelling and subsistence allowances as the Minister may from time to time determine in respect of the member.(3) A member is not, if a Judge of a New South Wales Court and while receiving remuneration as such a Judge, entitled to remuneration under this Act.(4) In this clause, Judge of a New South Wales Court includes a judicial officer.
7 Vacancy in office of President
(1) The President cannot be removed from office except by the Governor on an address from both Houses of Parliament in the same session seeking removal on the ground of proved misbehaviour or incapacity and in accordance with the applicable provisions of Parts 7 and 8 of the Judicial Officers Act 1986. However, simply because the President is removed from office under this subclause does not affect the person’s tenure as a judicial officer.(2) The President may be suspended or retired from office in accordance with the applicable provisions of Parts 7 and 8 of the Judicial Officers Act 1986.(3) If the President is suspended from office and is remunerated as such at the time of the suspension, he or she is entitled to be paid remuneration as President during the period of suspension at the current rate applicable to the office.(4) The office of President becomes vacant if the President:(a) dies, or(b) is removed from office or retires in accordance with this section, or(c) completes a term of office and is not re-appointed, or(d) resigns the office by instrument in writing addressed to the Governor, or(e) ceases to hold a judicial office referred to in section 17 (1).
8 Vacancy in office of member (other than President)
(1) The office of a member (other than the President) becomes vacant if the holder:(a) dies, or(b) completes a term of office and is not re-appointed, or(c) resigns the office by instrument in writing addressed to the Minister, or(d) is nominated for election as a member of the Legislative Council or of the Legislative Assembly or as a member of a House of Parliament or a legislature of another State or Territory or of the Commonwealth, or(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or(f) becomes a mentally incapacitated person, or(g) is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or(h) is removed from office under subclause (2).(2) The Governor may remove a member (other than the President) from office for incapacity, incompetence or misbehaviour.
8A Members and former members may complete unfinished matters
(1) This clause applies to a member (an affected member) dealing with any matters relating to proceedings before the Tribunal that have been heard or partly heard (or were otherwise the subject of deliberations) by the member if, during the proceedings, the member:(a) ceases to have a qualification specified by Schedule 2 for participation in the proceedings (a participation qualification) other than because of any of the following reasons:(i) misconduct or unsatisfactory conduct of the member,(ii) the mental incapacity of the member,(iii) the member becoming bankrupt or insolvent, or(b) ceases to be a member of the Tribunal because of the expiration of the period of the member’s appointment,or both.(2) An affected member may, despite becoming an affected member, complete or otherwise continue to deal with any matters in the proceedings concerned.(3) While completing or otherwise dealing with matters referred to in subclause (2), the affected member is taken to have and may exercise all the rights and functions of a member that the affected member had immediately before becoming an affected member.
(1) The members of the Tribunal have seniority according to the following order of precedence:(a) the President,(b) the Divisional Heads, according to the days on which their instruments of appointment as such took effect or, if the instruments of appointment of 2 or more of them took effect on the same day, according to the precedence assigned to them by their instruments of appointment,(c) the Deputy Presidents (other than Deputy Presidents who are Divisional Heads), according to the days on which their commissions took effect or, if the commissions of 2 or more of them took effect on the same day, according to the precedence assigned to them by their commissions,(d) the non-presidential judicial members, according to the days on which their instruments of appointment took effect or, if the instruments of appointment of 2 or more of them took effect on the same day, according to the precedence assigned to them by their instruments of appointment,(e) non-judicial members, according to the days on which their instruments of appointment took effect or, if the instruments of appointment of 2 or more of them took effect on the same day, according to the precedence assigned to them by their instruments of appointment.(2) If a member is re-appointed under this Act, the member’s seniority is to be determined as if there had been no break in the member’s service.
(1) The entitlement of a member of the Tribunal to annual and other leave is to be as stated in the instrument of appointment as a member.(2) A member of the Tribunal may be granted leave:(a) in the case of the President by the Minister, and(b) in any other case by the President.(3) This clause is subject to clause 6.
11 Superannuation and leave—preservation of rights
(1) In this clause:eligible member means a member of the Tribunal who, immediately before becoming such a member, was a public servant or an officer or employee of a public authority declared by an Act or proclamation to be an authority to which this clause applies.
superannuation scheme means a scheme, fund or arrangement under which any superannuation or retirement benefits are provided and which is established by or under an Act.
(2) An eligible member:(a) may continue to contribute to any superannuation scheme to which he or she was a contributor immediately before becoming an eligible member, and(b) is entitled to receive any payment, pension or gratuity accrued or accruing under the scheme,as if he or she had continued to be such a contributor during service as a member of the Tribunal.(3) Service by the eligible member as a member of the Tribunal is taken to be service as an officer in his or her previous employment for the purposes of any law under which the member continues to contribute to the scheme or by which an entitlement under the scheme is conferred.(4) The eligible member is to be regarded as an officer or employee, and the State is to be regarded as the employer, for the purposes of the scheme.(5) This section ceases to apply to the eligible member if he or she becomes a contributor to another superannuation scheme, but the eligible member is not prevented from receiving a resignation benefit from the first superannuation scheme.(6) An eligible member retains any rights to annual leave, extended or long service leave and sick leave accrued or accruing in his or her previous employment.(7) An eligible member is not entitled to claim, under both this Act and any other Act, dual benefits of the same kind for the same period of service.
12 Provisions where Judge is holding office as member
(1) The appointment of a person who is the holder of a judicial office as a member or service by a person who is the holder of a judicial office as a member does not affect:(a) the person’s tenure of that judicial office, or(b) the person’s rank, title, status, remuneration or other rights or privileges as the holder of that judicial office.(2) The person’s service as a member is, for all purposes, taken to be service as the holder of that judicial office.(3) In this clause:judicial office means an office of a Judge of a court of New South Wales (including a judicial officer).
12A Provisions where President holding office as member of another tribunal
(1) Nothing in any Act or other law operates to disqualify:(a) a state tribunal member from also being appointed and holding office as President of the Tribunal, or(b) the President of the Tribunal from also being appointed and holding office as a state tribunal member.(2) However, if the President of the Tribunal is appointed to or holds office as a state tribunal member, the latter office is taken to be a part-time office only despite any provision made by or under any Act or other law:(a) requiring the holder of the office to devote the whole of his or her time to the duties of that office, or(b) prohibiting the person from engaging in employment outside the duties of that office.(3) If the President of the Tribunal also holds office as a state tribunal member, the President is not entitled to any remuneration payable in respect of that office by or under any Act. However, nothing in this clause affects any other right of the President to remuneration that is conferred or recognised by this Act.(4) In this clause:state tribunal member means a member of any tribunal (other than the Tribunal) established by an Act of the Parliament of New South Wales.
13 Delegations by the President
The President may:(a) delegate to another judicial member any of the functions of the President, or(b) delegate to the Registrar, a Deputy Registrar or any other member of staff of the Tribunal any of the functions of the President prescribed by the regulations or the rules of the Tribunal,other than this power of delegation.Note. Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegations of functions.
14 Disclosure of pecuniary and other interests
(1) If a member is, or is to be, a member of the Tribunal as constituted for the purposes of proceedings and the member has or acquires an interest (pecuniary or otherwise) that could conflict with the proper performance of the functions of the member in relation to the proceedings:(a) the member must disclose the nature of the interest to the parties to the proceedings, and(b) the member must not take part in the proceedings or exercise any powers in relation to the making by the Tribunal of the decision to which the proceedings relate unless all of the parties to the proceedings consent to it.(2) If the President becomes aware that a member is, or is to be, a member of the Tribunal as constituted for the purposes of proceedings and that the member has in relation to the proceedings an interest referred to in subclause (1):(a) if the President considers that the member should not take part, or should not continue to take part, in the proceedings, the President is to give a direction to the member accordingly, or(b) in any other case, the President is to cause the interest of the member to be disclosed to the parties to the proceedings where the interest has not already been disclosed under subclause (1).(3) For the purposes of this clause, the expertise or experience of a member in relation to a class of matters in relation to which the Tribunal has jurisdiction does not constitute an interest that could conflict with the proper performance of the functions of the member.(4) A failure to comply with this clause does not affect the validity of any decision made by the Tribunal.
(1) The Public Sector Employment and Management Act 2002 does not apply to the appointment of a member, and the holder of the office is not, as holder, subject to that Act.(2) If by or under any Act provision is made:(a) requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or(b) prohibiting the person from engaging in employment outside the duties of that office,the provision does not operate to disqualify the person from holding that office and also the office of a part-time member or from accepting and retaining any remuneration payable to the person under this Act as a part-time member.
16 Application of Schedule to acting members
(1) Subject to subclause (2), all of the provisions of this Schedule apply to acting members.(2) Clause 2 does not apply to an appointment by or under section 14.(3) In this clause, acting member means a person appointed by or under this Act to act as a member.