Commonwealth Consolidated Acts

ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975 - SECT 40

             (1)  For the purpose of reviewing a decision, the Tribunal may:

                     (a)  take evidence on oath or affirmation;

                     (b)  proceed in the absence of a party who has had reasonable notice of the proceeding; and

                     (c)  adjourn the proceeding from time to time.

Summons

          (1A)  Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:

                     (a)  to give evidence; or

                     (b)  to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or

                     (c)  to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.

          (1B)  A summons under subsection (1A) may require a person to appear at a directions hearing to produce books, documents or things instead of at the hearing before the Tribunal.

          (1C)  A person (other than a presidential member, a senior member or an authorised member) who, under subsection (1A), may summon a person to appear before the Tribunal must not refuse a request to do so unless the refusal is authorised by a presidential member, a senior member or an authorised member.

          (1D)  A presidential member, a senior member or an authorised member may give a party to a proceeding leave to inspect a document produced under a summons.

           (1E)  A person named in a summons for production of a book, document or thing may produce the book, document or thing at the Registry where the summons was issued before the date specified in the summons and, unless the Tribunal otherwise directs, is not required to attend the hearing concerned unless the person is also required to give evidence at the hearing concerned.

Oath or affirmation

             (2)  The member who presides at the hearing of a proceeding before the Tribunal:

                     (a)  may require a person appearing before the Tribunal at that hearing to give evidence either to take an oath or to make an affirmation; and

                     (b)  may administer an oath or affirmation to a person so appearing before the Tribunal; and

                     (c)  if a person participates by a means allowed under section 35A, may make such arrangements as appear to the member to be appropriate in the circumstances in relation to administering an oath or affirmation to the person.

             (3)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers he or she will give to questions asked him or her will be true.

Representation

             (4)  A person summoned to appear before the Tribunal may request that he or she be represented by counsel or a solicitor and upon such request being made the Tribunal may allow such person to be represented.

Tribunal's power to take evidence

             (5)  The power of the Tribunal under paragraph (1)(a) to take evidence on oath or affirmation may be exercised on behalf of the Tribunal in relation to a particular proceeding before the Tribunal by the member who is to preside at the hearing of that proceeding or by another person (whether a member or not) authorized by the first‑mentioned member and that power may be so exercised within or outside Australia but the Tribunal may direct that the power is to be exercised subject to limitations specified by the Tribunal.

             (6)  Where a person other than the member who is to preside at the hearing of a proceeding is authorized to take evidence in relation to the proceeding in accordance with subsection (5):

                     (a)  the person has, for the purpose of taking that evidence, all the powers of the Tribunal under subsection (1) and all the powers under subsection (2) of the member who is to preside at the hearing of the proceeding; and

                     (b)  for the purpose of the exercise of those powers by that person, this Act has effect (except where the context otherwise requires) as if a reference to the Tribunal or to the member who is to preside at the hearing of a proceeding included a reference to that person.

Incidental proceedings

             (7)  The application of this section extends to a directions hearing under this Act or an alternative dispute resolution process under Division 3 (an incidental proceeding ) as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the directions hearing or the person conducting the alternative dispute resolution process, as the case may be.