Civil and Administrative Tribunal Act 2013 No 2

(1)  The Civil and Administrative Tribunal of New South Wales (which may also be called NCAT) is established by this Act on the establishment day.

(2)  The establishment day is—

(a)  1 January 2014, or

(b)  such later day as may be fixed as the establishment day by a proclamation made under this section.

(3)  The Governor may, by proclamation published on the NSW legislation website, fix a day that is later than 1 January 2014 as the establishment day for the purposes of this section.

(4)  The Governor may, by further proclamation published on the NSW legislation website, revoke a previous proclamation fixing a day as the establishment day and fix a different day that is later than 1 January 2014 as the establishment day.

(5)  A proclamation under this section has effect only if published before the establishment day applying for the time being.

(1)  A person may be appointed to any office or other position under this Act before the establishment day.

(2)  Without limiting subsection (1), the following appointments may be made before the establishment day—

(a)  appointment as the President or as any other kind of member,

(b)  appointment as a Division Head of a Division of the Tribunal that will be created on the establishment of the Tribunal,

(c)  appointment as a List Manager of a Division of the Tribunal that will be created on the establishment of the Tribunal,

(d)  appointment as a member of the Rule Committee,

(e)  appointment as a registrar (including as the principal registrar) or other member of staff of the Tribunal.

(3)  A member appointed before the establishment day may also be assigned by or under this Act to a Division of the Tribunal that will be created on the establishment of the Tribunal.

(4)  Without limiting subsections (1) and (2), the Rule Committee may be constituted before the establishment day and may before that day—

(a)  meet and transact business as if the Tribunal (and its Divisions) had been established, and

(b)  without limiting paragraph (a), make Tribunal rules that will come into force on or after the establishment day.

(5)  Any appointment or assignment made before the establishment day has effect on and from the day specified in the instrument of appointment or assignment as the date of appointment or assignment as if the Tribunal (including its Divisions) had been established.

(6)  Despite clause 5 of Schedule 2, a member of an existing tribunal (within the meaning of Part 2 of Schedule 1) who is appointed as a member of the Tribunal before the establishment day is not entitled to be paid remuneration as a member of the Tribunal while he or she continues to receive remuneration as a member of the existing tribunal.

s 8: Am 2013 No 94, Sch 1 [9].

(1)  The Tribunal is to consist of the following members—

(a)  the President,

(b)  Deputy Presidents,

(c)  principal members,

(d)  senior members,

(e)  general members.

(2)  The President and the Deputy Presidents are referred to in this Act as presidential members.

(3)  The principal members, senior members and general members are referred to in this Act as non-presidential members.

(4)  A member appointed by or under this Act for a term is referred to in this Act as a term member.

(5)  A member appointed by or under this Act to be a member for the purposes of specified proceedings is referred to in this Act as an occasional member.

(6)  The President is to be appointed as a term member.

(7)  Schedule 2 sets out additional provisions with respect to members.

(1)  A person may be appointed as a term member if the person is qualified to be appointed as a member of the kind concerned.

Note—

Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications.

(2)  A presidential member appointed as a term member is to be appointed by the Governor by commission under the public seal of the State.

Note—

The President must be appointed as a term member. See section 9(6).

(3)  A non-presidential member appointed as a term member is to be appointed by the Minister by written instrument.

(4)  The instrument of appointment of a term member is to specify—

(a)  whether the member has been appointed as the President, a Deputy President, principal member, senior member or general member, and

(b)  the term for which the member has been appointed.

(5)  A term member may be appointed on a full-time basis or a part-time basis.

(6)  However, the President is taken to be appointed on a full-time basis.

(1)  The President may, by written instrument, appoint a person to be an occasional member in relation to particular proceedings before the Tribunal if—

(a)  the person is qualified to be appointed as a member of the kind concerned, and

(b)  the President is satisfied that the appointment of the person as a member is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings.

Note—

Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications.

(2)  Without limiting clause 12 of Schedule 2, the President may delegate the function of appointing occasional members to sit as Division members for a Division of the Tribunal to the Division Head of the Division or a List Manager of a Division of the Tribunal.

(3)  The instrument of appointment of an occasional member is to specify—

(a)  whether the member has been appointed as a Deputy President, principal member, senior member or general member, and

(b)  the proceedings in relation to which the member has been appointed as an occasional member.

(4)  An occasional member who is appointed to be a member in relation to proceedings that are allocated to a Division of the Tribunal is taken to be assigned as a Division member of that Division.

(5)  A person who is appointed as an occasional member holds office as such until the proceedings in relation to which the member has been appointed as an occasional member have been finally determined, unless the person sooner vacates office.

(6)  The proceedings in relation to which an occasional member has been appointed as an occasional member are not finally determined for the purposes of subsection (5) until—

(a)  the proceedings are withdrawn by a party before the substantial merits of the proceedings are considered by the Tribunal, or

(b)  the proceedings are dismissed by the Tribunal (as constituted by or with the member) before the substantial merits of the proceedings are considered by the Tribunal (including, where required, the giving of reasons for the dismissal and the determination of costs), or

(c)  the Tribunal (as constituted by or with the member) has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs),

whichever occurs first.

s 11: Am 2013 No 94, Sch 1 [10] [11].

(1)  The Governor may, by commission under the public seal of the State, appoint as an Acting Deputy President a person qualified for appointment as a Deputy President if satisfied that the appointment is necessary to enable the Tribunal to exercise its functions effectively during the period of the appointment.

(2)  The Minister may, by written instrument, appoint as an acting principal member, acting senior member or acting general member a person qualified for appointment as a principal member, senior member or general member (as the case requires) if satisfied that the appointment is necessary to enable the Tribunal to exercise its functions effectively during the period of the appointment.

(3)  The person’s appointment is for the period (not exceeding 12 months) specified in the instrument of appointment.

(4)  An Acting Deputy President, acting principal member, acting senior member or acting general member has the functions of, and is taken to be, a Deputy President, principal member, senior member or general member (as the case requires) subject to any conditions or limitations specified in the instrument of appointment.

(1) The President A person is qualified to be appointed as the President only if the person is a Judge of the Supreme Court.

(2)  However, the Minister may not recommend the appointment of a person as the President unless the Minister has consulted with the Chief Justice of the Supreme Court about the appointment.

(3) Deputy Presidents A person is qualified to be appointed as a Deputy President only if the person is—

(a)  an Australian lawyer of at least 7 years’ standing, or

(b)  a person who holds, or has held, a judicial office of this State or of the Commonwealth, another State or Territory.

(4) Principal members A person is qualified to be appointed as a principal member only if the person—

(a)  is an Australian lawyer of at least 7 years’ standing, or

(b)  has, in the opinion of the person making the appointment, special knowledge, skill or expertise in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction.

(5) Senior members A person is qualified to be appointed as a senior member only if the person—

(a)  is an Australian lawyer of at least 7 years’ standing, or

(b)  has, in the opinion of the person making the appointment, special knowledge, skill or expertise in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction.

(6) General members A person is qualified to be appointed as a general member only if, in the opinion of the person making the appointment, the person—

(a)  has special knowledge, skill or expertise in relation to any class of matters in respect of which the Tribunal has jurisdiction, or

(b)  is capable of representing the public (or a sector of the public), or a particular organisation, body or group of persons (or class of organisations, bodies or groups of persons), in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction.

Note—

A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications.

(1)  The President or a Deputy President who is a term member may be appointed by the Governor as the Division Head of one or more Divisions of the Tribunal—

(a)  in the instrument of appointment of the President or Deputy President, or

(b)  by subsequent instrument.

Note—

A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the qualifications and procedure for the appointment of the Division Head for that Division.

(2)  A Division Head ceases to hold office as a Division Head if he or she—

(a)  is removed from office as a Division Head by the Governor, or

(b)  resigns the office by written instrument addressed to the Minister, or

(c)  ceases to hold office as the President or a Deputy President.

(3)  However, a person does not cease to hold office as the President or a Deputy President simply because the person has been removed, or has resigned, from office as a Division Head under subsection (2).

(1) Classes of NSW judicial officers who may act as members may be prescribed Any NSW judicial officer who belongs to a class of NSW judicial officer prescribed by the regulations for the purposes of this section is taken to have been duly appointed to act as a member of the Tribunal in relation to such matters within the jurisdiction of the Tribunal as are prescribed by the regulations.

(2) President may appoint NSW judicial officer to act as member Without limiting subsection (1), the President may appoint any NSW judicial officer to act as a member of the Tribunal in relation to particular proceedings before the Tribunal if—

(a)  the President is satisfied that the appointment of the judicial officer to act as a member is necessary to enable the Tribunal to exercise its functions effectively in the proceedings, and

(b)  the relevant chief judicial officer agrees to the NSW judicial officer’s appointment.

(3) Effect of appointment Any person who is appointed to act as a member by or under this section—

(a)  holds office as a Deputy President, principal member or senior member as specified in the regulations (in the case of an appointment under subsection (1)) or the instrument of appointment (in the case of an appointment under subsection (2)), and

(b)  has and may exercise all the functions of a member while acting as a member, and

(c)  may continue to exercise his or her functions as a holder of a judicial office.

(4) Former acting member may complete determination of proceedings A NSW judicial officer who has acted as a member may attend the sittings of the Tribunal for the purpose of giving reasons for a decision in, or otherwise completing, any proceedings that have been heard by the Tribunal (or were otherwise the subject of deliberations by the Tribunal) while the officer acted as a member, even if the person has ceased to act as a member.

(5) Definitions In this section—

NSW judicial officer includes a retired NSW judicial officer.

relevant chief judicial officer means—

(a)  in relation to the appointment of a Magistrate to act as a member—the Chief Magistrate of the Local Court, or

(b)  in relation to the appointment of a Judge of the District Court to act as a member—the Chief Judge of the Court, or

(c)    (Repealed)

(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.

s 15: Am 2016 No 48, Sch 2.5 [2].

(1)  On the establishment of the Tribunal, there are to be the following Divisions of the Tribunal—

(a)  the Administrative and Equal Opportunity Division,

(b)  the Consumer and Commercial Division,

(c)  the Occupational Division,

(d)  the Guardianship Division.

(e)    (Repealed)

(2)  The functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are to be exercised in that Division.

Note—

Section 4(2) provides that a reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation.

(3)  The functions of the Tribunal in relation to enabling legislation that are allocated to a Division of the Tribunal are the functions in relation to such legislation that are allocated to the Division by the Division Schedule for the Division.

(4)  However, the functions of the Tribunal when constituted by an Appeal Panel or in exercise of its enforcement jurisdiction are not allocated to any particular Division of the Tribunal.

(5)  A Division of the Tribunal is composed of such members as are assigned to it by or under this Act.

(6)  If the functions allocated to a Division of the Tribunal are reallocated to another Division as a result of amendments made to this Act by amending legislation, any proceedings that were instituted or commenced in the Tribunal before the reallocation may continue to be dealt with and determined as if the reallocation had not occurred unless the amending legislation provides otherwise.

Note—

See, for example, section 17, which enables the regulations to make amendments to Division Schedules for Divisions of the Tribunal and, for that purpose, make provision for matters of a savings or transitional nature.

s 16: Am 2013 No 94, Sch 1 [12]–[14].

(1)  The Division Schedule for a Division of the Tribunal is the Schedule to this Act that provides for the composition and functions of that Division.

(2)  Without limiting subsection (1), a Division Schedule for a Division of the Tribunal may include provisions about the following matters—

(a)  the qualifications and procedure for the appointment of a Division Head of the Division,

(b)  the qualifications and procedure for the assignment of other Division members,

(c)  the allocation to the Division of functions of the Tribunal in relation to enabling legislation,

(c1)  the reallocation from the Division to another Division of functions of the Tribunal in relation to enabling legislation,

(d)  the use of Division Lists in the Division and the qualifications and procedure for the appointment of, and the functions of, List Managers for the Division,

(e)  special requirements for the constitution of the Tribunal when exercising functions of the Tribunal allocated to the Division,

(f)  special requirements in relation to the powers of, and the practice and procedure to be followed by, the Tribunal in relation to proceedings in the Division,

(g)  the functions of registrars in relation to proceedings in the Division,

(h)  special requirements regarding appeals from decisions made by the Tribunal or a registrar in the Division (including whether appeals lie to an Appeal Panel or court and the constitution and functions of an Appeal Panel or court on any such appeal).

(3)  The provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provisions of this Act (except Part 3A) or the provisions of the procedural rules.

(4)  Subject to subsections (5) and (6), the regulations may—

(a)  amend section 16(1) to change the name of a Division of the Tribunal and amend other provisions of this Act (including a Division Schedule for a Division of the Tribunal) to update references to a renamed Division, and

(b)  amend a Division Schedule for a Division of the Tribunal to make additional or different provision for or with respect to the composition and functions of the Division (including, without limitation, the matters referred to in subsection (2)), and

(c)  make provision for matters of a saving or transitional nature consequent on the amendment of this Act by the regulations.

(5)  The Minister is not to recommend the making of a regulation for the purposes of subsection (4) unless the Minister certifies that—

(a)  the President has agreed to the amendments that are proposed to be made by the regulation, and

(b)  in the case of proposed amendments to Schedule 4 (other than an amendment of a kind referred to in subsection (4)(a))—the Minister for Innovation and Better Regulation has also agreed to the proposed amendments to that Schedule.

(6)  However, a regulation made for the purposes of subsection (4) may not make—

(a)  any of the following amendments to Schedule 5—

(i)  an amendment that has the effect of reallocating any of the functions of the Division of the Tribunal to which that Schedule relates in relation to the Health Practitioner Regulation National Law (NSW) to another Division,

(ii)  an amendment to Division 3 (Health practitioners) of Part 4 of that Schedule, including an amendment to another provision of that Schedule that has the effect of indirectly amending clause 14 (Effect of amendments to Schedule by regulations), or

(b)  any amendment to Schedule 6 (other than an amendment of a kind referred to in subsection (4)(a)).

(7)  Any reference in any other Act or instrument made under any other Act to a Division of the Tribunal that has been renamed under this section is to be read as a reference to the Division as renamed.

s 17: Am 2013 No 94, Sch 1 [15] [16]; 2016 No 27, Sch 2.7; 2017 No 44, Sch 1.2 [2]; 2023 No 22, Sch 1[1].

(1)  The President is assigned to each Division of the Tribunal.

(2)  A Division Head is assigned to the Division of the Tribunal in respect of which he or she is appointed as the Division Head.

(3)  Subject to this Act, the President—

(a)  is to assign each member (other than the President or a Division Head) to one or more Divisions of the Tribunal, and

(b)  may assign a member who is a Division Head to one or more Divisions of the Tribunal in respect of which the member is not the Division Head,

and may vary any such assignment at any time.

(4)  An assignment of a member to a Division of the Tribunal—

(a)  is to be made in accordance with any applicable provisions of the Division Schedule for the Division or of this Act or any enabling legislation, and

(b)  is subject to any limitations specified in the member’s instrument of appointment or assignment.

(5)  An assignment of a member to a Division of the Tribunal may be limited to participating in proceedings that are entered in one or more Division Lists of the Division.

(1)  The President, or the Division Head of a Division of the Tribunal (subject to any direction of the President), may establish one or more Division Lists for a Division of the Tribunal in which proceedings allocated to the Division are to be entered for the purpose of managing those proceedings.

(2)  The President, or the Division Head of a Division of the Tribunal (subject to any direction of the President), may, by written instrument, designate a Division member to be a List Manager for a Division List of the Division.

Note—

A Division Schedule for a Division of the Tribunal may, in some cases, provide for the use of Division Lists in the Division and for the qualifications and procedure for the designation of, and the functions of, List Managers for the Division.

(3)  A List Manager for a Division of the Tribunal has (subject to any direction from the President or the Division Head of the Division) the function of managing such Division Lists of the Division as may be specified—

(a)  in the instrument designating the member to be a List Manager, or

(b)  by the Division Schedule for the Division or by the procedural rules.

Note—

Clause 12 of Schedule 2 also enables the Division Head of a Division of the Tribunal to delegate functions of the Division Head to a List Manager of the Division.

(4)  An instrument designating a member to be a List Manager for a Division of the Tribunal may specify a title for the member to use while exercising the functions of a List Manager.

(5)  The President, or the Division Head of a Division of the Tribunal (subject to any direction of the President), may at any time, by written instrument, revoke a member’s designation as a List Manager for a Division of the Tribunal.

s 19: Am 2013 No 94, Sch 1 [17].

(1)  The functions of the President are—

(a)  to direct the business of the Tribunal (including determining the places and times for sittings of the Tribunal), and

(b)  to facilitate the adoption of good administrative practices for the conduct of the business of the Tribunal, and

(c)  to give directions about, and participate in the development of, the practice and procedure to be followed by the Tribunal, and

(d)  to manage members, including by—

(i)  developing codes of conduct for members, and

(ii)  ensuring that members are adequately and appropriately trained to enable them to exercise their functions effectively and efficiently, and

(iii)  undertaking performance management for members (whether by means of agreements with members, reviews or otherwise), and

(iv)  developing selection criteria for the appointment of members and, if required by the Minister, overseeing the selection process for members, and

(e)  to advise the Minister about the appointment, re-appointment and removal of members, and

(f)  to exercise such other functions as may be conferred or imposed on the President by or under this Act or any other legislation.

(2)  The President may also enter into agreements with Ministers, public officials and other persons or bodies with regulatory functions in relation to any class of matters over which the Tribunal has jurisdiction about the provision, allocation or use of funding in connection with the exercise of the jurisdiction concerned.

(3)  Without limiting subsections (1) and (2), the President has the following functions if appointed before the establishment day—

(a)  to assist in the development of the Tribunal rules for the Tribunal to use on its establishment,

(b)  to assign functions to other members appointed before the establishment day with respect to the establishment of the Tribunal,

(c)  to assign functions to any registrar or other member of staff appointed before the establishment day,

(d)  to exercise such other functions as are necessary or convenient to facilitate the establishment of the Tribunal.

s 20: Am 2013 No 94, Sch 1 [18].

(1)  A member has such functions as may be conferred or imposed on the member by or under this Act or any other legislation.

(2)  Each member must comply with any procedural directions given by the President and the Division Head of the Division of the Tribunal to which the member is assigned.

(3)  The functions of a Division Head of a Division of the Tribunal are—

(a)  to direct (subject to this Act, the regulations, the Tribunal rules and any direction of the President) the business of the Tribunal in that Division, and

(b)  to exercise such other functions as may be conferred or imposed on the Division Head by or under this Act or any other legislation.

(4)  Without limiting subsections (1)–(3), a member (other than the President) or Division Head for a Division of the Tribunal appointed before the establishment day has and may exercise such functions with respect to the establishment of the Tribunal as may be assigned to the member under section 20(3).

(1)  Persons (including the principal registrar and any other registrars) may be employed in the Public Service to enable the Tribunal to exercise its functions. Those employees may be referred to as the employees or staff of the Tribunal.

(2)  The President may enter into arrangements with any government agency or other body or person (whether in the public or private sector) for the provision of assistance to the Tribunal in connection with the exercise of its functions.

(3)  A reference in this Act to the appointment of a registrar or other member of staff of the Tribunal is to be read as a reference to the employment of a person as such in the Public Service.

s 22: Am 2013 No 94, Sch 1 [20] [21].

(1)  A registrar has such functions as may be conferred or imposed on the registrar by or under this Act or any other legislation or law.

(2)  The principal registrar has the following additional functions—

(a)  to assist the President in managing the business and the affairs of the Tribunal,

(b)  such administrative and other functions as may be conferred or imposed on the principal registrar by or under this Act or any other legislation or law.

(3)  A registrar may exercise such functions of the principal registrar as may be directed by the President or principal registrar.

(4)  Without limiting subsections (1) and (3)—

(a)  the President may, from time to time, designate a registrar to be a registrar for one or more Divisions of the Tribunal, and

(b)  the designated registrar may (subject to any direction of the President or principal registrar) exercise the functions of the principal registrar in connection with proceedings and legislation allocated to the Division or Divisions concerned.

(5)  Anything done or omitted to be done by a registrar in exercising a function of the principal registrar has effect as if it had been done or omitted to be done by the principal registrar.

(6)  The procedural rules may make provision for or with respect to the functions of the principal registrar and other registrars, including authorising registrars to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal.

(7)  In addition, a registrar (including the principal registrar) appointed before the establishment day has and may exercise such functions with respect to the establishment of the Tribunal as may be assigned to the registrar under section 20(3).

s 23: Subst 2013 No 94, Sch 1 [22].

(1)  There is to be a Rule Committee of the Tribunal.

(2)  The functions of the Rule Committee are—

(a)  to make the Tribunal rules, and

(b)  to ensure that the Tribunal rules it makes are as flexible and informal as possible.

(3)  The Rule Committee is to be composed of the following—

(a)  the President,

(b)  each Division Head,

(c)  such other members as may be appointed by the President from time to time.

(4)  The President is to be the Chairperson of the Rule Committee.

(5)  The President is to appoint one of the other members of the Rule Committee who is a Deputy President as Deputy Chairperson of the Rule Committee.

(6)  Unless the regulations provide otherwise, the Rule Committee is to regulate its own procedure.

(7)  The following provisions apply in relation to meetings of the Rule Committee unless the regulations provide, or the Rule Committee decides, otherwise—

(a)  the Chairperson of the Rule Committee or, in the absence of the Chairperson, the Deputy Chairperson of the Committee is to preside at a meeting of the Committee,

(b)  in the absence from a meeting of the Rule Committee of both the Chairperson and Deputy Chairperson, another member of the Committee who is a Deputy President is to be chosen by the members present to preside at the meeting,

(c)  the quorum for a meeting of the Rule Committee is a majority of the number of the members for the time being,

(d)  any duly convened meeting of the Rule Committee at which a quorum is present is competent to transact any business of the Rule Committee and has and may exercise all the functions of the Rule Committee,

(e)  a decision supported by a majority of the votes cast at a meeting of the Rule Committee at which a quorum is present is the decision of the Committee,

(f)  the person presiding at a meeting of the Rule Committee has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

(8)  The President is to call the first meeting of the Rule Committee in such manner as the President thinks fit and (subject to any decision of the Committee) may call such other meetings of the Committee as the President thinks necessary.

ss 24–26: Subst 2013 No 94, Sch 1 [23].

(1)  The Rule Committee may make rules of the Tribunal (referred to in this Act as the Tribunal rules), not inconsistent with this Act or enabling legislation, for or with respect to the following—

(a)  the practice and procedure to be followed in proceedings in the Tribunal,

(b)  any matter that is, by this Act or any other legislation, required or permitted to be prescribed by the Tribunal rules.

Note—

A number of provisions of this Act provide for matters to be prescribed by the procedural rules. The term procedural rules is defined in section 4(1) to include the Tribunal rules. Procedural rules that make provision as referred to in section 4(4) are not inconsistent with this Act. See section 4(5).

(2)  Without limiting subsection (1)(a), the Tribunal rules may make provision for or with respect to any of the matters specified in Schedule 7.

(3)  Without limiting the generality of section 42 of the Interpretation Act 1987, the Tribunal rules may also prescribe different rules for—

(a)  each of the Divisions of the Tribunal, and

(b)  different classes of matters.

Note—

Section 42 of the Interpretation Act 1987 provides for the matters for which statutory rules may generally make provision.

(4)  The Tribunal rules may authorise or require the use of an electronic case management system established under clause 2 of Schedule 1 to the Electronic Transactions Act 2000 in relation to any proceedings in the Tribunal in respect of which the use of such a system is authorised by an order in force under clause 3 of Schedule 1 to that Act.

(5)  In the event of an inconsistency between a provision of the regulations and a provision of the Tribunal rules, the provision of the regulations prevails to the extent of the inconsistency.

Note—

Section 90(2) also enables the regulations to make provision concerning matters for or with respect to which the Tribunal rules may make provision (including the matters specified in Schedule 7).

(6)  This section does not limit the operation of section 78 (Rules of court) of the Interpretation Act 1987.

ss 24–26: Subst 2013 No 94, Sch 1 [23].

(1)  The President may give directions (procedural directions) relating to the practice and procedures to be followed in, and to the actual conduct of, proceedings in the Tribunal.

(2)  The procedural directions must be—

(a)  publicly available, and

(b)  consistent with this Act, enabling legislation and the procedural rules.

(3)  Without limiting subsection (2)(a), it is sufficient compliance with that paragraph if procedural directions are published on the website of the Tribunal.

(4)  Each member, and the parties to proceedings and their representatives, must comply with any applicable procedural directions.

ss 24–26: Subst 2013 No 94, Sch 1 [23].

(1)  The Tribunal is to be constituted as follows—

(a)  in the case of an internal appeal or designated external appeal—by an Appeal Panel of the Tribunal consisting of—

(i)  one member who is an Australian lawyer, or

(ii)  2 or more members (at least one of whom must be an Australian lawyer),

(b)  in the case of proceedings for contempt of the Tribunal—by one or more of the following members—

(i)  the President,

(ii)  any other member who is a current or former NSW judicial officer,

(c)  in the case of proceedings for a contravention of a civil penalty provision of this Act—by one or more of the following—

(i)  the President,

(ii)  a Deputy President,

(iii)  a principal member who is an Australian lawyer of at least 7 years’ standing,

(d)  in the case of any other proceedings—by one or more Division members of the Division to which the function of dealing with the proceedings is allocated.

Note—

The functions of the Tribunal are generally exercised in the Divisions of the Tribunal by Division members. However, the functions of the Tribunal when constituted by an Appeal Panel or in exercise of its enforcement jurisdiction are not allocated to any particular Division of the Tribunal. See section 16(4).

A Division Schedule for a Division may, in some cases, make special provision for the constitution of the Tribunal when exercising functions allocated to that Division (including the qualifications of members to sit in specified kinds of proceedings). It may also provide for certain Division functions to be exercised by a registrar and for the constitution of Appeal Panels in internal appeals against decisions made in the Division.

The procedural rules may also authorise a registrar to make ancillary or interlocutory decisions of the Tribunal on behalf of the Tribunal. See section 23(6).

(2)  The President may give or revoke a direction as to the members who are to constitute the Tribunal for the purposes of any particular proceedings.

Note—

The President may delegate the function of constituting the Tribunal for particular proceedings to a Division Head for a Division of the Tribunal or another member. See clause 12 of Schedule 2.

(3)  In giving a direction as to the members who are to constitute the Tribunal for the purposes of any particular proceedings, the President is to have regard to the following matters—

(a)  the degree of public importance or complexity of the subject-matter of the proceedings,

(b)  the need for any of the members to have special knowledge or experience in the subject-matter of the proceedings,

(c)  any applicable requirements in relation to the constitution of the Tribunal that are specified by a Division Schedule for a Division of the Tribunal or enabling legislation,

(d)  such other matters as the President considers relevant.

(4)  The President may give directions (whether for particular proceedings, classes of proceedings or generally) as to which member is to preside at proceedings in the Tribunal when the Tribunal is constituted by more than one member.

(5)  There may be more than one sitting of the Tribunal (including when constituted as an Appeal Panel) at the same time.

(6)  In this section—

designated external appeal means any of the following—

(a)  an external appeal under section 45 of the Drug and Alcohol Treatment Act 2007,

(b)  an external appeal under section 50 of the NSW Trustee and Guardian Act 2009,

(c)  any other external appeal that this Act or enabling legislation has declared to be a designated external appeal for the purposes of this section.

s 27: Rep 2013 No 94, Sch 1 [23]. Ins 2013 No 94, Sch 1 [24]. Am 2023 No 22, Sch 1[2].

Each of the provisions of this Part is subject to enabling legislation and the procedural rules.

Note—

The Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination. The provisions of the Division Schedule prevail to the extent of any inconsistency with the provisions of this Part. See section 17(3).

Section 4(4) also provides that any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules.

Enabling legislation may also make provision for matters relating to practice and procedure in relation to functions conferred on the Tribunal, including (for example) specifying periods within which applications or appeals under that legislation are to be made.

s 35: Subst 2013 No 94, Sch 1 [25].

(1)  The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2)  The Tribunal must seek to give effect to the guiding principle when it—

(a)  exercises any power given to it by this Act or the procedural rules, or

(b)  interprets any provision of this Act or the procedural rules.

(3)  Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal—

(a)  a party to proceedings in the Tribunal,

(b)  an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4)  In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

(5)  However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.

s 36: Rep 1987 No 15, sec 30C. Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal may, where it considers it appropriate, use (or require parties to proceedings to use) any one or more resolution processes.

Note—

See section 59 for the power of the Tribunal to give effect to a settlement reached by the parties following the use of a resolution process.

(2)  A resolution process is any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings.

s 37: Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.

(2)  The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3)  Despite subsection (2)—

(a)  the Tribunal must observe the rules of evidence in—

(i)  proceedings in exercise of its enforcement jurisdiction, and

(ii)  proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and

(b)  section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings.

Note—

Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege.

(4)  The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(5)  The Tribunal is to take such measures as are reasonably practicable—

(a)  to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b)  if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c)  to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

(6)  The Tribunal—

(a)  is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(b)  may require evidence or argument to be presented orally or in writing, and

(c)  in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.

s 38: Ins 2013 No 94, Sch 1 [25]. Am 2023 No 22, Sch 1[3].

For the purposes of this Act, an application to the Tribunal includes a complaint, referral or other mechanism (however expressed) by means of which enabling legislation provides for a matter to be brought to the attention of the Tribunal for a decision.

pt 4, div 2 (ss 39–43): Ins 2013 No 94, Sch 1 [25].

An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules.

pt 4, div 2 (ss 39–43): Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2)  Such an application may be made even though the relevant period of time has expired.

pt 4, div 2 (ss 39–43): Ins 2013 No 94, Sch 1 [25].

The Tribunal may require a document to be served outside the State.

pt 4, div 2 (ss 39–43): Ins 2013 No 94, Sch 1 [25].

(1)  This section applies to the making or lodgment of any of the following (a pending general application or appeal)—

(a)  a general application for the review or other re-examination of a decision made by an external decision-maker,

(b)  an external appeal,

(c)  an internal appeal.

Note—

See Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 for the effect of pending administrative review applications on administratively reviewable decisions and the making of orders staying or otherwise affecting such decisions.

(2)  A pending general application or appeal does not affect the operation of the decision to which the application or appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision.

(3)  The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.

pt 4, div 2 (ss 39–43): Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

(2)  The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has—

(a)  been improperly or unnecessarily joined, or

(b)  ceased to be a proper or necessary party.

(3)  For the avoidance of doubt, the member or members who constituted the Tribunal when it made an internally appealable decision cannot be made parties to an internal appeal against the decision.

(4)  The following persons may intervene and be heard in proceedings to which they are not already parties—

(a)  the Attorney General,

(b)  a Minister who administers the legislation that confers or imposes functions the exercise (or purported exercise) of which are in issue in the proceedings,

(c)  any other person who is authorised by this Act, enabling legislation or the procedural rules to intervene in the proceedings.

(5)  A Minister may (from money otherwise lawfully available for the purpose) authorise the payment to a party to the proceedings in which the Minister or the Minister’s delegate intervenes such costs (if any) as the Minister considers were reasonably incurred by that party in relation to the proceedings as a result of that intervention.

s 44: Ins 2013 No 94, Sch 1 [25].

(1)  A party to proceedings in the Tribunal—

(a)  has the carriage of the party’s own case and is not entitled to be represented by any person, and

(b)  may be represented by another person only if the Tribunal grants leave—

(i)  for that person to represent the party, or

(ii)  in the case of representation by an Australian legal practitioner—for a particular or any Australian legal practitioner to represent the party.

(2)  However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made.

Note—

A Division Schedule for a Division of the Tribunal may, in some cases, allow certain kinds of persons to represent parties in proceedings allocated to that Division without requiring the leave of the Tribunal.

(3)  The Tribunal may at its discretion—

(a)  grant or refuse leave under subsection (1)(b), and

(b)  revoke any leave that it has granted.

(4)  The Tribunal may—

(a)  appoint a person to act as guardian ad litem for a party, or

(b)  appoint a person to represent a party, or

(c)  order that a party be separately represented.

(4A)  In proceedings that directly or significantly affect a child (that is, a person under the age of 18 years) who is not a party to the proceedings, the Tribunal may—

(a)  appoint a person to act as guardian ad litem for the child, or

(b)  order that the child be separately represented.

(4B)  The Tribunal may, at its discretion, revoke any appointment or order made under subsection (4) or (4A).

(4C)  Without limiting subsection (4)(a) or (4A)(a), the Tribunal may order that a person be represented by a guardian ad litem without naming a particular person to be appointed as guardian ad litem.

(4D)  If the Tribunal makes an order under subsection (4C) the guardian ad litem is taken to have been appointed as guardian ad litem when the Tribunal receives a written notice from the administrator of the Guardian Ad Litem Panel naming the person selected to be the guardian ad litem.

(5)  A person is not entitled to legal aid under the Legal Aid Commission Act 1979 merely because the Tribunal has made an order under subsection (4)(c) or (4A)(b).

(6)  Anything done or omitted to be done by a person of a class prescribed by the regulations who is appointed by the Tribunal to represent a party or other person does not subject the person personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of representing the party or other person. However, any such liability attaches instead to the Crown.

s 45: Ins 2013 No 94, Sch 1 [25]. Am 2015 No 2, Sch 1.2 [1] [2]; 2018 No 4, Sch 1.2 [1]–[4]; 2021 No 45, Sch 6[2].

(1)  The Tribunal may—

(a)  call any witness of its own motion, and

(b)  examine any witness on oath or affirmation or require evidence to be verified by a statutory declaration, and

(c)  examine or cross-examine any witness to such extent as the Tribunal thinks proper in order to elicit information relevant to the exercise of the functions of the Tribunal in any proceedings, and

(d)  compel any witness to answer questions which the Tribunal considers to be relevant in any proceedings.

(2)  If the Tribunal decides to call a person as a witness under subsection (1)(a), the Tribunal may—

(a)  seek to procure the voluntary attendance of the witness before it by notifying the person in such manner as it thinks appropriate in the circumstances, or

(b)  issue a summons (or direct a registrar to issue a summons) to compel the attendance of the person before it.

(3)  Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question if the witness has a reasonable excuse for refusing to answer the question.

ss 46–48: Ins 2013 No 94, Sch 1 [25].

(1)  If the regulations so provide, a person (other than a public servant in his or her capacity as such) who is required to appear or give evidence before the Tribunal is entitled to be paid such allowances and expenses as are prescribed, or ascertained in accordance with, the regulations.

(2)  Subject to subsection (3), the allowances and expenses are to be paid by the party at whose request a witness is summoned.

(3)  The Tribunal may order that the allowances and expenses of a witness referred to in subsection (2) be paid wholly or partly by the State out of money otherwise lawfully available.

ss 46–48: Ins 2013 No 94, Sch 1 [25].

(1)  A summons for the purposes of this Act may be issued by a registrar—

(a)  on the application of a party to the proceedings, or

(b)  at the direction of the Tribunal.

Note—

See also section 46(2)(b).

(2)  The fee (if any) prescribed by the regulations is payable for the issue of a summons on the application of a party to the proceedings.

(3)  Such a summons must be signed by a registrar or as otherwise prescribed by the procedural rules and may require the person to whom it is addressed—

(a)  to attend and give evidence, or

(b)  to attend and produce documents or other things,

or both.

(4)  The regulations may make provision for or with respect to excusing, in specified circumstances, a person who produces documents or other things in answer to a summons from attendance at the Tribunal.

(5)  A summons may be served within or outside the State.

ss 46–48: Ins 2013 No 94, Sch 1 [25].

(1)  A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.

(2)  The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason.

s 49: Ins 2013 No 94, Sch 1 [25].

(1)  A hearing is required for proceedings in the Tribunal except—

(a)  in proceedings for the granting of leave for an external or internal appeal, or

(b)  in connection with the use of any resolution processes in proceedings, or

(c)  if the Tribunal makes an order under this section dispensing with a hearing, or

(d)  in such other circumstances as may be prescribed by the procedural rules.

(2)  The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3)  The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a)  afforded the parties an opportunity to make submissions about the proposed order, and

(b)  taken any such submissions into account.

(4)  The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5)  This section does not prevent the Tribunal from holding a hearing even if it is not required.

s 50: Ins 2013 No 94, Sch 1 [25].

The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).

s 51: Ins 2013 No 94, Sch 1 [25].

(1)  The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member—

(a)  becomes unavailable for any reason, or

(b)  ceases to be a member, or

(c)  ceases to have a qualification required for participation in the proceedings, or

(d)  is directed by the President not to take part in the proceedings.

(2)  The President may not replace a member unless the President has first—

(a)  afforded the parties an opportunity to make submissions about the proposed replacement, and

(b)  taken any such submissions into account.

(2A)  The President must not make a direction under subsection (1)(d) in relation to a member unless the President—

(a)  has consulted the member, if it is reasonably practicable to do so, and

(b)  is satisfied that making the direction is—

(i)  in the interests of justice, and

(ii)  in the interests of achieving the expeditious and efficient conduct of the proceedings, and

(iii)  otherwise appropriate having regard to the objects of this Act.

(2B)  The President may give directions as to the member or members who are to constitute the Tribunal after the consideration of a matter by the Tribunal has commenced.

(3)  The Tribunal as reconstituted under this section is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.

s 52: Ins 2013 No 94, Sch 1 [25]. Am 2023 No 22, Sch 1[4]–[6].

(1)  The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2)  Any such amendment may be made—

(a)  at any stage of the proceedings, and

(b)  on such terms as the Tribunal thinks fit,

but may only be made after giving notice to the party to whom the amendment relates.

(3)  If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.

(4)  The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.

s 53: Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal (including when constituted as an Appeal Panel) may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the opinion of the Court.

(2)  The Tribunal may refer a question of law under this section only if the President has consented in writing to the question being referred.

(3)  The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, but may decline to exercise that jurisdiction if it considers it appropriate to do so.

(4)  If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not—

(a)  to give a decision in the proceedings to which the question is relevant while the reference is pending, or

(b)  to proceed in a manner, or make a decision, that is inconsistent with the opinion of the Supreme Court on the question.

(5)  Subsection (4) extends to the Tribunal when constituted as an Appeal Panel that is determining an internal appeal from a decision of the Tribunal in proceedings before which a question of law has been referred by the Tribunal at first instance to the Supreme Court under this section.

s 54: Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—

(a)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)  if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d)  if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2)  The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure.

s 55: Ins 2013 No 94, Sch 1 [25].

The Tribunal may reserve its decision in relation to any proceedings.

ss 56–59: Ins 2013 No 94, Sch 1 [25].

(1)  If the Tribunal is constituted by more than one member for the purposes of the determination of any proceedings and the members are divided in opinion, the opinion of the majority is taken to be the decision of the Tribunal.

(2)  However, a question of law arising in proceedings in which the Tribunal is constituted by one or more members who are Australian lawyers is to be decided in accordance with the opinion of the member or the majority of the members who are Australian lawyers.

(3)  If the members are equally divided in their opinion, the opinion that prevails is—

(a)  in proceedings in which the presiding member is an Australian lawyer or none of the members sitting are Australian lawyers—the opinion of the presiding member, or

(b)  in proceedings in which the presiding member is not an Australian lawyer but one or more of the other members sitting are Australian lawyers—

(i)  on a question of law—the opinion of the member who is an Australian lawyer (or the member with the greatest seniority who is an Australian lawyer), or

(ii)  on any other question—the opinion of the presiding member.

(4)  In this section, question of law includes the question whether a particular question is a question of law.

ss 56–59: Ins 2013 No 94, Sch 1 [25].

A power of the Tribunal to make an order or other decision includes a power to make the order or other decision subject to such conditions (including exemptions) as the Tribunal specifies when making the order or other decision.

ss 56–59: Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if—

(a)  the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and

(b)  the Tribunal 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.

(2)  The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.

ss 56–59: Ins 2013 No 94, Sch 1 [25].

(1)  Each party to proceedings in the Tribunal is to pay the party’s own costs.

(2)  The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.

(3)  In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—

(a)  whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,

(b)  whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c)  the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d)  the nature and complexity of the proceedings,

(e)  whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,

(f)  whether a party has refused or failed to comply with the duty imposed by section 36(3),

(g)  any other matter that the Tribunal considers relevant.

(4)  If costs are to be awarded by the Tribunal, the Tribunal may—

(a)  determine by whom and to what extent costs are to be paid, and

(b)  order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.

(5)  In this section—

costs includes—

(a)  the costs of, or incidental to, proceedings in the Tribunal, and

(b)  the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.

s 60: Ins 2013 No 94, Sch 1 [25]. Am 2015 No 7, Sch 2.1 [1].

A general decision or a decision determining an external or internal appeal takes effect on the date on which it is given or such later date as may be specified in the decision.

Note—

See section 66 of the Administrative Decisions Review Act 1997 for when an administrative review decision takes effect.

s 61: Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal (including when constituted as an Appeal Panel) is to ensure that each party to proceedings is given notice of any decision that it makes in the proceedings.

(2)  Any party may, within 28 days of being given notice of a decision of the Tribunal, request the Tribunal to provide a written statement of reasons for its decision if a written statement of reasons has not already been provided to the party. The statement must be provided within 28 days after the request is made.

(2A)  Subsection (2) does not apply to the following decisions of the Tribunal—

(a)  a decision to make an order dispensing with a hearing of the Tribunal under section 50(2),

(b)  a decision to grant an adjournment,

(c)  a decision under section 60 not to award costs, except where a party has argued there are special circumstances warranting an award of costs,

(d)  a decision to award costs in proceedings of either of the following kinds—

(i)  proceedings for the exercise of a function of the Consumer and Commercial Division of the Tribunal,

(ii)  an internal appeal against a decision of the Consumer and Commercial Division of the Tribunal,

(e)  if the parties have consented to the making of an order—a decision to make the order,

(f)  other minor procedural decisions that do not have a final or determinative impact on the rights of a party.

(3)  A written statement of reasons for the purposes of this section must set out the following—

(a)  the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b)  the Tribunal’s understanding of the applicable law,

(c)  the reasoning processes that lead the Tribunal to the conclusions it made.

(4)  Nothing in this section prevents the Tribunal from giving oral reasons or a written statement of reasons for a decision it makes even if it has not been requested to do so by a party.

s 62: Ins 2013 No 94, Sch 1 [25]. Am 2023 No 22, Sch 1[7].

(1)  If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member.

(2)  If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal’s decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct.

(3)  Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where—

(a)  there is an obvious clerical or typographical error in the text of the notice or statement, or

(b)  there is an error arising from an accidental slip or omission, or

(c)  there is a defect of form, or

(d)  there is an inconsistency between the stated decision and the stated reasons, or

(e)  there is an inconsistency between the name of a person stated in the text of the notice or statement and the name stated on the person’s birth certificate or other form of identification.

s 63: Ins 2013 No 94, Sch 1 [25]. Am 2023 No 22, Sch 1[8].

(1)  If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a)  an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b)  an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d)  an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2)  The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3)  The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

s 64: Ins 2013 No 94, Sch 1 [25]. Am 2023 No 22, Sch 1[9].

(1)  This section applies only to the following proceedings—

(a)  proceedings in the Guardianship Division (or internal appeals against decisions made in such proceedings),

(b)  proceedings for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (including an internal appeal against such a decision),

(c)  such other proceedings (or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(2)  A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—

(a)  who appears as a witness before the Tribunal in any proceedings, or

(b)  to whom any proceedings in the Tribunal relate, or

(c)  who is mentioned or otherwise involved in any proceedings in the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty—

(a)  in the case of a corporation—100 penalty units, or

(b)  in any other case—50 penalty units or imprisonment for 12 months, or both.

(3)  This section does not prohibit the publication or broadcasting of an official report, including a sound recording or transcript, of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3A)  A report, including a sound recording or transcript, of proceedings authorised by the Tribunal to be provided to a party to the proceedings for the party’s use only is not an official report of the proceedings for subsection (3).

(4)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

s 65: Ins 2013 No 94, Sch 1 [25]. Am 2023 No 22, Sch 1[10] [11].

(1) General rule Except as provided by this section, nothing in this Act requires or authorises any person or body to disclose information to another person or body if there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009.

(2) Disclosure to person or body other than Tribunal The provisions of the Government Information (Public Access) Act 2009 continue to apply to the disclosure of information to any person or body other than to the Tribunal as if this Act had not been enacted.

(3) Disclosure to Tribunal If a provision of this Act requires or authorises any person or body to disclose information to the Tribunal in relation to any proceedings before it and there is an overriding public interest against the disclosure of the information under the Government Information (Public Access) Act 2009—

(a)  the Government Information (Public Access) Act 2009 does not prevent the disclosure of the information to the Tribunal, and

(b)  the Tribunal is to do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal as constituted for the purpose of the proceedings unless the person or body disclosing the information to the Tribunal consents to the further disclosure.

(4) Certificates by Secretary or General Counsel of the Cabinet Office concerning Cabinet information The Secretary or General Counsel of the Cabinet Office may certify that information is Cabinet information. Any such certificate—

(a)  is conclusive of that fact, and

(b)  authorises any person who would otherwise be required under this Act to lodge a document containing that information with (or disclose the information to) the Tribunal to refuse to lodge the document with (or disclose the information to) the Tribunal.

(5) Definitions In this section—

Cabinet information means information that is Cabinet information under the Government Information (Public Access) Act 2009.

disclose has the same meaning as in the Government Information (Public Access) Act 2009.

s 66: Ins 2013 No 94, Sch 1 [25]. Am 2015 No 15, Sch 3.10 [1]; 2023 No 35, Sch 4.6.

(1)  Nothing in this Act requires the disclosure of a document if the Tribunal or President is satisfied that evidence of the document could not be adduced in proceedings before a NSW court by reason of the operation of any of the following provisions of the Evidence Act 1995—

(a)  section 9 (Application of common law and equity), but only to the extent that it preserves any privilege against the adducing of evidence,

(b)  section 10 (Parliamentary privilege preserved),

(c)  Part 3.10 (Privileges) of Chapter 3.

(2)  In this section—

disclosure of a document includes the following—

(a)  the provision of copies of the document,

(b)  the granting of access to the document,

(c)  the disclosure of the contents of the document.

document includes a part of a document.

NSW court has the same meaning as in the Evidence Act 1995.

ss 67–70: Ins 2013 No 94, Sch 1 [25].

(1)  A person who is, or has been, a member, registrar or other officer of the Tribunal is not competent, and cannot be required, to give evidence to a court relating to a matter, or produce in a court a document furnished to the Tribunal in connection with any proceedings, if—

(a)  the giving of the evidence or production of the document would be contrary to an order of the Tribunal in force under section 64(1) or under a similar provision of another Act, or

(b)  an application has been made to the Tribunal for an order under section 64(1), or under such a similar provision, concerning the matter to which the evidence would relate, or in relation to the document, and the Tribunal has not determined that application, or

(c)  the evidence concerns, or the document is, a document that the Tribunal is prevented from disclosing by operation of section 66.

(2)  A person who is, or has been, a member, registrar or other officer of the Tribunal cannot be required to give evidence to a court in relation to any proceedings in the Tribunal.

(3)  In this section—

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

ss 67–70: Ins 2013 No 94, Sch 1 [25].

If—

(a)  a provision of another Act prohibits the disclosure (whether absolutely, conditionally or in certain circumstances) of information by persons who—

(i)  are included in a particular class of persons, and

(ii)  acquired the information in the course of their duties under the Act, and

(b)  a person who is (or has been) a member, officer, registrar or other staff member of the Tribunal has acquired or acquires any such information in the course of his or her duties as such,

that provision applies to the person as if he or she were included in the particular class of persons and acquired the information in the course of duties under that Act.

ss 67–70: Ins 2013 No 94, Sch 1 [25].

A person must not disclose information obtained in exercising a function under this Act unless the disclosure is made—

(a)  with the consent of the person to whom the information relates, or

(b)  in connection with the execution or administration of this Act or the Administrative Decisions Review Act 1997 or other enabling legislation, or

(c)  for the purpose of any legal proceedings arising out of this Act or the Administrative Decisions Review Act 1997 or other enabling legislation or any report of such proceedings, or

(d)  with other legal excuse.

Maximum penalty—

(a)  in the case of a corporation—100 penalty units, or

(b)  in any other case—50 penalty units or imprisonment for 12 months, or both.

ss 67–70: Ins 2013 No 94, Sch 1 [25].

A person must not, in any proceedings or application to the Tribunal, provide any information, or make any statement, to the Tribunal knowing that the information or statement is false or misleading in a material respect.

Maximum penalty—50 penalty units or imprisonment for 12 months, or both.

s 71: Ins 2013 No 94, Sch 1 [25].

(1)  A person must not, without lawful excuse, contravene a designated order of the Tribunal.

Maximum penalty—

(a)  in the case of a corporation—100 penalty units, or

(b)  in any other case—50 penalty units or imprisonment for 12 months, or both.

(2)  A designated order of the Tribunal means any of the following—

(a)  an order of the Tribunal made under section 64 (Tribunal may restrict disclosures concerning proceedings),

(b)  an order of the Tribunal made under section 108(2)(b), (c), (d) or (e) of the Anti-Discrimination Act 1977 or an interim order of the Tribunal made under that Act,

(c)  an order of the Tribunal made under section 42 of the Guardianship Act 1987,

(d)  any other order of the Tribunal that a provision of this Act or enabling legislation has declared to be a designated order for the purposes of this section.

(3)  A person must not, without reasonable excuse, contravene any other order of the Tribunal made under this Act or any other legislation.

Civil penalty provision.

s 72: Ins 2013 No 94, Sch 1 [25].

(1)  The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.

Note—

Section 27(1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

(2)  A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

(2A)  Without limiting subsection (2), a person is guilty of contempt of the Tribunal if the person fails, without reasonable excuse, to comply with a summons issued for the purposes of this Act.

(3)  Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

(4)  For the purposes of this section—

(a)  sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

(b)  a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

(c)  section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.

Note—

Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

(5)  Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

(6)  The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.

s 73: Ins 2013 No 94, Sch 1 [25]. Am 2023 No 22, Sch 1[12].

(1)  An act or omission may be punished as a contempt of the Tribunal even though it could be punished as an offence or a contravention of a civil penalty provision of this Act.

(2)  An act or omission may be punished as an offence or a contravention of a civil penalty provision of this Act even though it could be punished as a contempt of the Tribunal.

(3)  However, a person is not liable to be punished twice if the person’s act or omission constitutes—

(a)  both an offence and a contempt of the Tribunal, or

(b)  both a contravention of a civil penalty provision of this Act and a contempt of the Tribunal.

s 74: Ins 2013 No 94, Sch 1 [25].

Proceedings for an offence against a provision of this Act or on an application under section 77 may be commenced only by any of the following persons (an authorised official)—

(a)  the Minister,

(b)  a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose.

s 75: Ins 2013 No 94, Sch 1 [25].

(1)  Proceedings for an offence against this Act are to be dealt with summarily before the Local Court.

(2)  Proceedings for an offence against this Act may be brought within the period of 12 months of the date on which the offence is alleged to have been committed.

s 76: Ins 2013 No 94, Sch 1 [25].

(1)  This section applies to a provision of this Act (a civil penalty provision of this Act) if the words “Civil penalty provision” are specified at the end of the provision.

Note—

A contravention of a provision of this Act for which a maximum penalty is provided is an offence rather than a contravention of a civil penalty provision of this Act.

(2)  The Tribunal may, on the application of an authorised official, order a person to pay a monetary penalty if the Tribunal is satisfied that the person has contravened a civil penalty provision of this Act.

(3)  The monetary penalty must not exceed—

(a)  in the case of a contravention by a corporation—$22,000, or

(b)  in any other case—$11,000.

(4)  In determining whether to impose a monetary penalty or the appropriate amount for the penalty, the Tribunal is to have regard to the following matters—

(a)  the deterrent effect of the imposition of a penalty on the contravener,

(b)  the nature and extent of the contravention,

(c)  any loss or damage sustained, or gain or benefit obtained, as a result of the contravention,

(d)  whether the contravention indicates a pattern of behaviour by the contravener of failing to comply with the orders or processes of the Tribunal,

(e)  the length of time during which the contravention occurred,

(f)  such other matters as the Tribunal considers relevant.

(5)  Proceedings for a penalty under this section may be brought within the period of 2 years of the date on which the contravention is alleged to have occurred.

(6)  The standard of proof that applies in connection with an application under this section is proof on the balance of probabilities.

Note—

The Tribunal must observe the rules of evidence in proceedings under this section. See section 38(3).

(7)  A penalty imposed under this section may be recovered from the person on whom it is imposed in any court of competent jurisdiction as a debt due to the Crown.

s 77: Ins 2013 No 94, Sch 1 [25].

(1) Recovery of non-penalty amounts For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by a registrar.

(2)  A certificate given under this section must identify the person liable to pay the certified amount.

(3)  A certificate of a registrar that—

(a)  is given under subsection (1), and

(b)  is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate,

operates as such a judgment.

(4) Recovery of civil or other penalty amounts A civil or other penalty ordered to be paid by the Tribunal (other than for a contravention of a civil penalty provision of this Act) may be registered as a judgment debt in a court of competent jurisdiction and is enforceable accordingly.

s 78: Ins 2013 No 94, Sch 1 [25].

(1)  An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation.

(2)  In determining an external appeal, the Tribunal may—

(a)  in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal—make any of those orders, or

(b)  in any other case—make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following—

(i)  the appeal to be allowed or dismissed,

(ii)  the decision under appeal to be confirmed, affirmed or varied,

(iii)  the decision under appeal to be quashed or set aside,

(iv)  the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(v)  the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.

pt 6, div 1 (s 79): Ins 2013 No 94, Sch 1 [25].

(1)  An appeal against an internally appealable decision may be made to an Appeal Panel by a party to the proceedings in which the decision is made.

Note—

Internal appeals are required to be heard by the Tribunal constituted as an Appeal Panel. See section 27(1).

(2)  Any internal appeal may be made—

(a)  in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and

(b)  in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.

(3)  The Appeal Panel may—

(a)  decide to deal with the internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b)  permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

s 80: Ins 2013 No 94, Sch 1 [25].

(1)  In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following—

(a)  the appeal to be allowed or dismissed,

(b)  the decision under appeal to be confirmed, affirmed or varied,

(c)  the decision under appeal to be quashed or set aside,

(d)  the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e)  the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

(2)  The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance.

s 81: Ins 2013 No 94, Sch 1 [25]. Am 2017 No 44, Sch 1.2 [4] [5].

(1)  Each of the following kinds of decisions of the Tribunal is an appealable decision of the Tribunal for the purposes of this Division—

(a)  any decision made by an Appeal Panel in an internal appeal,

(b)  any decision made by the Tribunal in an external appeal,

(c)  any decision made by the Tribunal in proceedings in which a civil penalty has been imposed by the Tribunal in exercise of its enforcement or general jurisdiction.

Note—

An appealable decision includes any ancillary or interlocutory decisions of the Tribunal in such proceedings.

(2)  However, an appealable decision of the Tribunal does not include—

(a)  any decision made by the Tribunal in proceedings for contempt of the Tribunal, or

(b)  any decision made by an Appeal Panel in an internal appeal against a decision of a registrar.

Note—

Section 201 of the District Court Act 1973 (as applied by section 73) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under that section.

(3)  For the purpose of this Division, the appropriate appeal court for an appeal against a decision in proceedings in which a civil penalty has been imposed is—

(a)  if the Tribunal was constituted by one or more senior judicial officers—the Supreme Court, or

(b)  if the Tribunal was not constituted by or with any senior judicial officers—the District Court.

(4)  A reference to the Tribunal in another provision of this Division is to be read as a reference to an Appeal Panel if the appealable decision of the Tribunal concerned is a decision of an Appeal Panel.

(5)  In this section—

senior judicial officer means any of the following—

(a)  a Judge of the District Court,

(b)    (Repealed)

(c)  a Judge of the Land and Environment Court,

(d)  a Judge of the Supreme Court.

s 82: Ins 2013 No 94, Sch 1 [25]. Am 2016 No 48, Sch 2.5 [3].

(1)  A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings.

(2)  A person on whom a civil penalty has been imposed by the Tribunal in proceedings in exercise of its enforcement or general jurisdiction may appeal to the appropriate appeal court for the appeal on a question of law against any decision made by the Tribunal in the proceedings.

(3)  The court hearing the appeal may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) the following—

(a)  an order affirming, varying or setting aside the decision of the Tribunal,

(b)  an order remitting the case to be heard and decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of the court.

(4)  Without limiting subsection (3), the appropriate appeal court for an appeal against a civil penalty may substitute its own decision for the decision of the Tribunal that is under appeal.

(5)  Subject to any interlocutory order made by the court hearing the appeal, an appeal under this section does not affect the operation of the appealable decision of the Tribunal under appeal or prevent the taking of action to implement the decision.

s 83: Ins 2013 No 94, Sch 1 [25].

(1)  This section applies in relation to an appeal against a decision of the Tribunal to—

(a)  the Supreme Court or District Court under this Division, or

(b)  the Supreme Court, the District Court or another court under any other provision of this Act.

(2)  An appeal to which this section applies must be made—

(a)  within such time and in such manner as is prescribed by the rules of court for the court to which the appeal is made, or

(b)  within such further time as the court may allow.

(3)  The Tribunal (or any of the members constituting the Tribunal) cannot be made a party to an appeal to which this section applies. The rules of court for a court to which such an appeal may be made may make provision for the parties to any such appeal (including the designation of a respondent where the only party to the proceedings from which the appeal is brought was the appellant).

(4)  In this section—

rules of court for a court includes the uniform rules under the Civil Procedure Act 2005 if the uniform rules apply to proceedings of that court.

s 84: Ins 2013 No 94, Sch 1 [25].