ADMINISTRATIVE DECISIONS TRIBUNAL AMENDMENT BILL 2008

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ADMINISTRATIVE DECISIONS TRIBUNAL AMENDMENT BILL 2008

New South Wales Administrative Decisions Tribunal Amendment Bill 2008 Contents Page 1 Name of Act 2 2 Commencement 2 3 Amendment of Administrative Decisions Tribunal Act 1997 No 76 2 4 Amendment of other Acts and Regulations 2 5 Repeal of certain legislation relating to the Administrative Decisions Tribunal 2 6 Repeal of Act 2 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 3 Schedule 2 Amendment of other Acts and Regulations 20 b2008-071-94.d12

New South Wales Administrative Decisions Tribunal Amendment Bill 2008 No , 2008 A Bill for An Act to amend the Administrative Decisions Tribunal Act 1997 and certain other legislation in connection with the constitution, functions and procedure of the Administrative Decisions Tribunal; and for other purposes.

Clause 1 Administrative Decisions Tribunal Amendment Bill 2008 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Administrative Decisions Tribunal Amendment 3 Act 2008. 4 2 Commencement 5 (1) This Act commences on a day or days to be appointed by proclamation, 6 except as provided by subsections (2) and (3). 7 (2) Sections 13, 5 (1) and 6 and Schedule 1 [57] and [58] commence on 8 the date of assent to this Act. 9 (3) Schedule 2.2 commences immediately before the repeal of the 10 Administrative Decisions Tribunal Rules (Transitional) Regulation 11 1998 by section 5 (2). 12 3 Amendment of Administrative Decisions Tribunal Act 1997 No 76 13 The Administrative Decisions Tribunal Act 1997 is amended as set out 14 in Schedule 1. 15 4 Amendment of other Acts and Regulations 16 The Acts and Regulations specified in Schedule 2 are amended as set 17 out in that Schedule. 18 5 Repeal of certain legislation relating to the Administrative Decisions 19 Tribunal 20 (1) The Administrative Decisions Tribunal Legislation Further Amendment 21 Act 1998 is repealed. 22 (2) The Administrative Decisions Tribunal Rules (Transitional) Regulation 23 1998 is repealed. 24 6 Repeal of Act 25 (1) This Act is repealed on the day following the day on which all of the 26 provisions of this Act have commenced. 27 (2) The repeal of this Act does not, because of the operation of section 30 28 of the Interpretation Act 1987, affect any amendment made by this Act. 29 Page 2

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 Schedule 1 Amendment of Administrative Decisions 1 Tribunal Act 1997 2 (Section 3) 3 [1] Section 8 What is a reviewable decision? 4 Omit the note to the section. Insert at the end of the section: 5 (2) For the avoidance of doubt (and without limiting subsection (1) 6 or section 6): 7 (a) the conduct of an administrator (or a refusal by an 8 administrator to engage in conduct) is a reviewable 9 decision if the Tribunal has jurisdiction under an 10 enactment to review the conduct or refusal, and 11 (b) in its application to any such conduct or refusal by an 12 administrator, any reference in this Act (however 13 expressed) to an administrator making a reviewable 14 decision includes a reference to an administrator engaging 15 or refusing to engage in the conduct. 16 Note. Section 38 provides for the circumstances in which the Tribunal 17 has jurisdiction to review a decision of an administrator. 18 The jurisdiction conferred on the Tribunal by section 55 of the Privacy 19 and Personal Information Protection Act 1998 is an example of 20 jurisdiction to review conduct. 21 [2] Section 10 Notes 22 Omit "Charts and other notes". Insert instead "Notes". 23 [3] Section 24A Constitution of Tribunal for exercise of interlocutory 24 functions 25 Omit "who is assigned by the President for the purpose of exercising the 26 function" from section 24A (2) (a). 27 [4] Section 24A (2) (b) 28 Omit "who is assigned by the President or (subject to any direction of the 29 President) the Divisional Head for the purpose of exercising the function". 30 [5] Section 24A (2A) 31 Insert after section 24A (2): 32 (2A) The President, or relevant Divisional Head (subject to any 33 direction of the President), may give directions as to the members 34 who are to constitute the Tribunal for the purposes of exercising 35 any of its interlocutory functions. 36 Page 3

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 [6] Section 26 Annual report 1 Insert after section 26 (2): 2 (3) If a House of Parliament is not sitting when the Minister seeks to 3 lay the report before it, the Minister is to cause a copy of the 4 report to be presented to the Clerk of that House of Parliament. 5 (4) The report: 6 (a) is, on presentation and for all purposes, taken to have been 7 laid before the House, and 8 (b) may be printed by authority of the Clerk of the House, and 9 (c) if so printed, is taken to be a document published by or 10 under the authority of the House, and 11 (d) is to be recorded: 12 (i) in the case of the Legislative Council--in the 13 Minutes of the Proceedings of the Legislative 14 Council, and 15 (ii) in the case of the Legislative Assembly--in the 16 Votes and Proceedings of the Legislative Assembly, 17 on the first sitting day of the House after receipt of the copy 18 of the report by the Clerk. 19 [7] Section 27 Appointment of Registrar and staff 20 Omit "Part 2 of the Public Sector Management Act 1988". 21 Insert instead "Chapter 1A of the Public Sector Employment and Management 22 Act 2002". 23 [8] Section 41 Summary of the original decision-making process 24 Omit the chart at the end of the section. 25 [9] Section 44 Late applications to Tribunal 26 Omit "in writing" from section 44 (1). 27 [10] Section 44 (1A) 28 Insert after section 44 (1): 29 (1A) An application by an interested person under subsection (1) must 30 be in writing unless the Tribunal dispenses with the requirement. 31 [11] Section 47 Summary of the review process for reviewable decision 32 Omit the chart at the end of the section. 33 Page 4

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 [12] Section 53 Internal reviews 1 Omit "As soon as practicable (or in any event within 21 days) after the 2 completion of an internal review of a decision" from section 53 (6). 3 Insert instead "Within 21 days after the application for the internal review is 4 lodged (or such other period as the administrator and person agree on)". 5 [13] Section 55 6 Omit the section. Insert instead: 7 55 When can an application for a review be made? 8 (1) A person may apply to the Tribunal for a review of a reviewable 9 decision only if: 10 (a) the application is made by an interested person, and 11 (b) where the person was entitled to seek an internal review of 12 the decision--the person has duly applied for such a 13 review and the review is taken to have been finalised under 14 section 53 (9), and 15 (c) the application is made in the manner prescribed by the 16 rules of the Tribunal, and 17 (d) the application is made within the period or by the time 18 prescribed by or under the enactment under which the 19 application is made or, if no such period or time is 20 prescribed, the default application period for the decision. 21 Note. 1 Section 4 defines interested person to mean a person who is 22 entitled under an enactment to make an application to the 23 Tribunal for an original decision or a review of a reviewable 24 decision (as the case may be). 25 2 Section 53 (9) provides that an internal review is taken to be 26 finalised if: 27 (a) the applicant for the review is notified of the outcome of 28 the review, or 29 (b) the applicant is not notified of the outcome of the review 30 within 21 days after the application for the review is lodged 31 (or such other period as the administrator and person 32 agree on). 33 3 A person may not have an entitlement to seek an internal review 34 because such an entitlement has been excluded by regulations 35 made for the purposes of section 53 (11) or by an enactment. 36 (2) The default application period for a reviewable decision is: 37 (a) in the case where the applicant has duly applied for an 38 internal review of the reviewable decision--the period of 39 Page 5

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 28 days after the day on which the internal review is taken 1 to have been finalised under section 53 (9), or 2 (b) in any other case--the period of 28 days after: 3 (i) if the applicant has requested reasons under section 4 49 for the reviewable decision--the day on which 5 the applicant was provided with a statement of 6 reasons under section 49 or notified under section 7 50 of a refusal to provide reasons, or 8 (ii) if the applicant has not requested reasons under 9 section 49--the day on which the applicant was 10 notified of the making of the reviewable decision. 11 (3) Despite subsections (1) (b) and (d) and (2), the Tribunal may deal 12 with an application for the review of a reviewable decision even 13 though the applicant has not duly applied for an internal review 14 to which the applicant was entitled if the Tribunal is satisfied that: 15 (a) the applicant made a late application for the internal 16 review in circumstances where the person dealing with the 17 application unreasonably refused to consider the 18 application and the application to the Tribunal was made 19 within a reasonable time following the reviewable decision 20 of the administrator concerned, or 21 (b) it is necessary for the Tribunal to deal with the application 22 in order to protect the applicant's interests and the 23 application to the Tribunal was made within a reasonable 24 time following the reviewable decision of the 25 administrator concerned. 26 (4) In determining whether a late application for internal review was 27 unreasonably refused or whether an application to the Tribunal 28 was made within a reasonable time for the purposes of subsection 29 (3), the Tribunal is to have regard to: 30 (a) the time when the applicant became aware of the making 31 of the decision, and 32 (b) in a case to which subsection (3) (a) applies--the period 33 prescribed by or under section 53 for the lodging of an 34 application for an internal review, and 35 (c) such other matters as it considers relevant. 36 [14] Section 57 Late applications to Tribunal 37 Omit "in writing" from section 57 (1). 38 Page 6

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 [15] Section 57 (1A) 1 Insert after section 57 (1): 2 (1A) An application by an interested person under subsection (1) must 3 be in writing unless the Tribunal dispenses with the requirement. 4 [16] Section 57 (3) 5 Omit the subsection. Insert instead: 6 (3) In this section, late application means an application not made 7 within the period or time referred to in section 55 (1) (d). 8 [17] Section 58 Duty of administrator to lodge material documents with 9 Tribunal where decision reviewed 10 Insert after section 58 (1) (a): 11 (a1) a copy of any statement of reasons for a decision in an 12 internal review conducted in respect of the reviewable 13 decision, and 14 [18] Section 67 Parties to proceedings before Tribunal 15 Omit section 67 (4). Insert instead: 16 (4) The Tribunal may, by order, make a person who is not a party to 17 proceedings (other than proceedings on an internal appeal) a 18 party to the proceedings if the Tribunal considers that the person 19 ought to have been joined as a party or is a person whose joinder 20 is necessary to the determination of all matters in dispute in the 21 proceedings. 22 [19] Section 71 Representation of parties 23 Omit section 71 (1) (b). Insert instead: 24 (b) be represented by an Australian legal practitioner, or 25 (b1) with the leave of the Tribunal given under subsection (2), 26 be represented by an agent who is not an Australian legal 27 practitioner, or 28 [20] Section 71 (2)(3A) 29 Omit section 71 (2) and (3). Insert instead: 30 (2) A person who is not an Australian legal practitioner may, with the 31 consent of a party to proceedings, apply to the Tribunal for leave 32 to represent the party as the party's agent in the proceedings or in 33 part of the proceedings. 34 Page 7

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 (3) The Tribunal may: 1 (a) grant or refuse leave on an application made under 2 subsection (2), and 3 (b) revoke any leave that has been granted. 4 (3A) The rules of the Tribunal may make provision for or with respect 5 to the following matters: 6 (a) the circumstances in which it is, or is not, appropriate for 7 the Tribunal to grant leave for an agent to represent a party, 8 (b) the circumstances in which it is, or is not, appropriate for 9 the Tribunal to revoke any such leave. 10 Note. Section 91A provides that the President may issue practice notes 11 for the Tribunal in relation to any matter with respect to which rules may 12 be made. 13 [21] Section 71 (5) 14 Omit the subsection. 15 [22] Section 73 Procedure of the Tribunal generally 16 Omit section 73 (5) (g) and (h). Insert instead: 17 (g) may dismiss at any stage any proceedings before it in any 18 of the following circumstances: 19 (i) if the applicant (or, if there is more than one 20 applicant, each applicant) withdraws the application 21 to which the proceedings relate, 22 (ii) if the Tribunal considers that the proceedings are 23 frivolous or vexatious or otherwise misconceived or 24 lacking in substance, 25 (iii) if the applicant (or, if there is more than one 26 applicant, each applicant) has failed to appear in the 27 proceedings, 28 (iv) if the Tribunal considers that there has been a want 29 of prosecution of the proceedings, and 30 (h) may reinstate proceedings that have been dismissed 31 because of an applicant's failure to appear if the Tribunal 32 considers that there is a reasonable explanation for that 33 failure. 34 [23] Section 74 Preliminary conferences 35 Omit section 74 (3). 36 Page 8

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 [24] Section 74 (4) (b) 1 Omit the paragraph. Insert instead: 2 (b) any member or assessor who presided over a preliminary 3 conference in respect of the proceedings may participate as 4 a member of the Tribunal determining the proceedings, or 5 as an assessor in those proceedings, unless: 6 (i) a party to the preliminary conference objects to the 7 member or assessor further participating in the 8 proceedings, and 9 (ii) the party demonstrates in that objection that the 10 further participation of the member or assessor is 11 likely to prejudice the party's case. 12 [25] Section 79A 13 Insert after section 79: 14 79A References of questions of law to Supreme Court 15 (1) The Tribunal in proceedings at first instance may, of its own 16 motion or at the request of a party, refer a question of law arising 17 in the proceedings to the Supreme Court for the opinion of the 18 Court if the President has consented in writing to the question 19 being referred. 20 (2) For the purposes of this section, proceedings at first instance are 21 proceedings in the Tribunal for an original decision or the review 22 of a reviewable decision. 23 (3) The Supreme Court has jurisdiction to hear and determine any 24 question of law referred to it under this section. 25 (4) If a question of law arising in proceedings has been referred to the 26 Supreme Court under this section, the Tribunal is not: 27 (a) to give a decision in the proceedings to which the question 28 is relevant while the reference is pending, or 29 (b) to proceed in a manner, or make a decision, that is 30 inconsistent with the opinion of the Supreme Court on the 31 question. 32 (5) Subsection (4) extends to an Appeal Panel of the Tribunal 33 determining an appeal from a decision of the Tribunal in 34 proceedings in which a question of law has been referred to the 35 Supreme Court under this section. 36 Page 9

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 [26] Section 84 Issue of summons 1 Insert "if the Registrar considers it appropriate to do so in the circumstances," 2 before "on the application" in section 84 (1) (a). 3 [27] Section 84 (1) 4 Insert at the end of the subsection: 5 Note. The Registrar may refuse to issue a summons on the application 6 of a party if the Registrar considers that it is not appropriate for a 7 summons to be issued. 8 [28] Section 84 (6) 9 Insert after section 84 (5): 10 (6) The Registrar may give directions with respect to access to 11 documents or other things produced pursuant to a summons if no 12 objection has been made to the summons. 13 [29] Section 86 Powers when proceedings settled 14 Omit "settlement, and" from section 86 (1) (b). Insert instead "settlement." 15 [30] Section 86 (1) (c) 16 Omit the paragraph. 17 [31] Section 86 (2) 18 Omit the subsection. Insert instead: 19 (2) The Tribunal may dismiss the application that is the subject of the 20 proceedings if it is not satisfied that it would have the power to 21 make a decision in the terms of the agreed settlement or in terms 22 consistent with the terms of the agreed settlement. 23 [32] Section 86A 24 Insert after section 86: 25 86A Matters that may be taken into account when exercising 26 settlement powers 27 (1) This section applies to the exercise by the Tribunal, a member or 28 an assessor of any of the following powers (a settlement power) 29 conferred on the Tribunal or person: 30 (a) the power of the Tribunal, a member or an assessor to 31 make a determination under section 74 to which the parties 32 to the proceedings agree, 33 Page 10

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 (b) the power of the Tribunal to make an order under section 1 86 giving effect to any agreed settlement by the parties to 2 the proceedings, 3 (c) the power of the Tribunal to make an order under section 4 105 giving effect to any agreement or arrangement arising 5 out of a mediation session under Part 4. 6 (2) When deciding whether to exercise a settlement power, the 7 Tribunal, member or assessor (as the case requires) may take into 8 account the interests of any vulnerable person (whether or not a 9 party to the proceedings) if the Tribunal, member or assessor 10 considers that: 11 (a) the person may be directly affected by the exercise of the 12 power because the person is a party to, or the subject of, the 13 proceedings concerned, and 14 (b) it is appropriate to do so in the circumstances. 15 (3) A vulnerable person is: 16 (a) a minor, or 17 (b) a person who is totally or partially incapable of 18 representing his or her interests in proceedings before the 19 Tribunal because the person is intellectually, physically, 20 psychologically or sensorily disabled, of advanced age, a 21 mentally incapacitated person or otherwise disabled. 22 (4) Nothing in this section limits the matters to which the Tribunal, a 23 member or an assessor may have regard when deciding whether 24 to exercise a settlement power. 25 [33] Section 88 Costs 26 Omit section 88 (1). Insert instead: 27 (1) Each party to proceedings before the Tribunal is to bear the 28 party's own costs in the proceedings, except as provided by this 29 section. 30 (1A) Subject to the rules of the Tribunal and any other Act or law, the 31 Tribunal may award costs in relation to proceedings before it, but 32 only if it is satisfied that it is fair to do so having regard to the 33 following: 34 (a) whether a party has conducted the proceedings in a way 35 that unnecessarily disadvantaged another party to the 36 proceedings by conduct such as: 37 (i) failing to comply with an order or direction of the 38 Tribunal without reasonable excuse, or 39 Page 11

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 (ii) failing to comply with this Act, the regulations, the 1 rules of the Tribunal or any relevant provision of the 2 enactment under which the Tribunal has jurisdiction 3 in relation to the proceedings, or 4 (iii) asking for an adjournment as a result of a failure 5 referred to in subparagraph (i) or (ii), or 6 (iv) causing an adjournment, or 7 (v) attempting to deceive another party or the Tribunal, 8 or 9 (vi) vexatiously conducting the proceedings, 10 (b) whether a party has been responsible for prolonging 11 unreasonably the time taken to complete the proceedings, 12 (c) the relative strengths of the claims made by each of the 13 parties, including whether a party has made a claim that 14 has no tenable basis in fact or law, 15 (d) the nature and complexity of the proceedings, 16 (e) any other matter that the Tribunal considers relevant. 17 [34] Section 93 Functions of Rule Committee 18 Omit section 93 (2). 19 [35] Section 97 Subcommittees of Rule Committee 20 Omit the section. 21 [36] Section 98 Public consultation and rule review 22 Omit the section. 23 [37] Section 102 Referral by Tribunal 24 Omit "referral, and" from section 102 (1) (b). Insert instead "referral.". 25 [38] Section 102 (1) (c) 26 Omit the paragraph. 27 [39] Section 104 Costs of mediation and neutral evaluation 28 Insert "unless the Tribunal decides to bear the costs itself" after "Tribunal". 29 [40] Section 105 Agreements and arrangements arising from mediation 30 sessions 31 Omit section 105 (2). 32 Page 12

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 [41] Section 113 Right to appeal against appealable decisions of the Tribunal 1 Omit section 113 (3) (a). Insert instead: 2 (a) within 28 days after the Tribunal gives the party oral 3 reasons or written reasons for the appealable decision 4 (whichever is the later), or 5 [42] Section 114 Appeals on questions of law 6 Insert "the whole or any part of" after "remitting" in section 114 (2) (b). 7 [43] Section 118C Appeal Panel to determine external appeals 8 Insert "the whole or any part of" after "remitting" in section 118C (2) (b). 9 [44] Section 145 Regulations 10 Omit section 145 (2). Insert instead: 11 (2) Without limiting the generality of subsection (1), the regulations 12 may make provision for or with respect to any of the following 13 matters: 14 (a) the fees payable in respect of proceedings in the Tribunal, 15 including fees for the following: 16 (i) an application for an original decision or a review of 17 a reviewable decision or for an internal or external 18 appeal, 19 (ii) the filing or lodgment of any document in the 20 Tribunal, 21 (iii) the provision of transcripts of proceedings, 22 (iv) the issue of summonses or any other document out 23 of the Tribunal, 24 (b) the fees payable in relation to proceedings referred to 25 mediation or neutral evaluation under this Act, 26 (c) the fees payable for administrative services provided by 27 the Registrar, a Deputy Registrar or any other officer of the 28 Tribunal, whether in connection with the administration of 29 this Act or otherwise, 30 (d) the waiver, postponement and refund of fees and 31 exemptions from fees. 32 (2A) Fees of the kind referred to in subsection (2) (a) are not payable 33 by the Crown, or by any person acting on behalf of the Crown, 34 with respect to any civil proceedings to which any of the 35 following persons or bodies is a party: 36 (a) the Crown, 37 Page 13

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 (b) any Minister of the Crown, 1 (c) any statutory body whose expenditure is paid out of the 2 Consolidated Fund, 3 (d) any person or body prescribed by the regulations or 4 belonging to a class of persons or bodies so prescribed. 5 (2B) Subsection (2A) does not prevent the recovery by the Crown or 6 any such person or body of any fees that would, had they been 7 paid by the Crown or any such person or body, have been so 8 recoverable. 9 [45] Schedule 2 Composition and functions of Divisions 10 Omit "Adoption of Children Act 1965" from clause 2 of Part 1. 11 Insert instead "Adoption Act 2000". 12 [46] Schedule 2, Part 1 13 Omit "section 40" from clause 3 (1). Insert instead "section 28". 14 [47] Schedule 2, Part 3 15 Insert at the end of clause 1 (2) (c): 16 , and 17 (d) at least one Deputy President (other than the Divisional 18 Head), but only after the Minister has consulted with the 19 Bar Council and the Law Society Council concerning the 20 assignment, and 21 (e) at least one non-presidential judicial member who is a 22 current, retired or acting eligible judicial officer. 23 [48] Schedule 2, Part 3 24 Omit clause 1 (4). 25 [49] Schedule 2, Part 3 26 Omit "1 judicial member who is a judge of the District Court or Supreme 27 Court" wherever occurring in clause 4 (1) (a) and (b). 28 Insert instead "1 senior judicial member". 29 [50] Schedule 2, Part 3 30 Insert in alphabetical order in clause 5: 31 eligible judicial officer means any of the following: 32 (a) a Judge of the Supreme Court, 33 Page 14

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 (b) a Judge of the District Court, 1 (c) a judicial officer of any other court or tribunal having an 2 equivalent status (for the purposes of Part 9 of the 3 Constitution Act 1902) to the Supreme Court or District 4 Court. 5 senior judicial member means any of the following members 6 assigned to the Legal Services Division: 7 (a) the Divisional Head, 8 (b) a Deputy President assigned to the Division in accordance 9 with clause 1 (2) (d) of this Part, 10 (c) a non-presidential judicial member who is a current, 11 retired or acting eligible judicial officer. 12 [51] Schedule 2, Part 3 13 Omit the definition of licensee member from clause 5. 14 [52] Schedule 2, Part 4 15 Omit "Reform" from "Education Reform Act 1990" in clause 2 (1). 16 [53] Schedule 2, Part 4, clause 4 Education Act 1990 (Reviewable decisions) 17 Omit "Reform" from "Education Reform Act 1990". 18 [54] Schedule 3 Provisions relating to members of Tribunal 19 Omit clause 8A. Insert instead: 20 8A Members and former members may complete unfinished matters 21 (1) This clause applies to a member (an affected member) dealing 22 with any matters relating to proceedings before the Tribunal that 23 have been heard or partly heard (or were otherwise the subject of 24 deliberations) by the member if, during the proceedings, the 25 member: 26 (a) ceases to have a qualification specified by Schedule 2 for 27 participation in the proceedings (a participation 28 qualification) other than because of any of the following 29 reasons: 30 (i) misconduct or unsatisfactory conduct of the 31 member, 32 (ii) the mental incapacity of the member, 33 (iii) the member becoming bankrupt or insolvent, or 34 Page 15

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 (b) ceases to be a member of the Tribunal because of the 1 expiration of the period of the member's appointment, 2 or both. 3 (2) An affected member may, despite becoming an affected member, 4 complete or otherwise continue to deal with any matters in the 5 proceedings concerned. 6 (3) While completing or otherwise dealing with matters referred to in 7 subclause (2), the affected member is taken to have and may 8 exercise all the rights and functions of a member that the affected 9 member had immediately before becoming an affected member. 10 [55] Schedule 3, clause 15 (1) 11 Omit "Public Sector Management Act 1988". 12 Insert instead "Public Sector Employment and Management Act 2002". 13 [56] Schedule 4 Provisions relating to assessors of Tribunal 14 Omit "Public Sector Management Act 1988" from clause 4 (1). 15 Insert instead "Public Sector Employment and Management Act 2002". 16 [57] Schedule 5 Savings and transitional provisions 17 Insert at the end of clause 1 (1): 18 Administrative Decisions Tribunal Amendment Act 2008 19 [58] Schedule 5, Part 11 20 Insert after Part 10: 21 Part 11 Provisions consequent on enactment of 22 Administrative Decisions Tribunal 23 Amendment Act 2008 24 42 Definitions 25 In this Part: 26 amending Act means the Administrative Decisions Tribunal 27 Amendment Act 2008. 28 substantive amendment means any amendment made to this Act 29 by the amending Act other than: 30 (a) the amendments made by Schedule 1 [57] and [58] to the 31 amending Act, or 32 Page 16

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 (b) amendments updating references to repealed or renamed 1 legislation and any other amendments in the nature of 2 statute law revision. 3 43 Application of amendments 4 (1) Except to the extent that a provision of this Part provides 5 otherwise, a substantive amendment does not apply to or 6 otherwise affect: 7 (a) any applications (including applications for internal 8 reviews) that were made, but not finally determined, 9 before the commencement of the amendment, or 10 (b) any proceedings that were commenced, but not finally 11 determined, before the commencement of the amendment. 12 (2) The following substantive amendments extend to applications 13 and proceedings that were made or commenced, but not finally 14 determined, before the commencement of the substantive 15 amendment concerned: 16 (a) the amendments made to sections 74 (3), 86 and 105, 17 (b) the amendment made to section 8, 18 (c) the amendments made to section 24A, 19 (d) the amendments made to sections 44 (1), 57 (1) and 67, 20 (e) the amendment made to section 73, 21 (f) the amendment that inserts section 79A, 22 (g) the amendments made to section 84, 23 (h) the amendment that inserts section 86A, 24 (i) the amendment made to section 88, 25 (j) the amendments made to section 102, 26 (k) the amendment made to section 104, 27 (l) the amendments made to sections 114 and 118C. 28 (3) The substantive amendments made to section 71: 29 (a) extend to proceedings that were commenced, but not 30 finally determined, before the amendments commenced 31 (existing proceedings), but 32 (b) do not affect any right or entitlement that an agent 33 representing a party in existing proceedings had to 34 represent the party immediately before the commencement 35 of the amendments. 36 Page 17

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 1 Amendment of Administrative Decisions Tribunal Act 1997 (4) The substantive amendment made to section 74 (4): 1 (a) extends to proceedings that were commenced, but not 2 finally determined, before the commencement of the 3 amendment, but 4 (b) does not extend to proceedings where an objection has 5 been made under section 74 (4) as in force before the 6 commencement of the amendment. 7 (5) The substantive amendment made to section 113 applies to 8 appeals from appealable decisions of the Tribunal made on or 9 after the day on which the amendment commences, but not to 10 appealable decisions made before that day. 11 (6) The substantive amendments made to clauses 4 and 5 of Part 3 of 12 Schedule 2 extend to proceedings that were pending (but not yet 13 heard) before the commencement of the amendments. 14 (7) If a substantive amendment does not apply or extend to, or 15 otherwise affect, an application, objection or proceedings, the 16 application, objection or proceedings are to be determined or 17 dealt with under this Act as if the substantive amendment had not 18 been enacted. 19 44 Abolition of Subcommittees of Rule Committee 20 (1) Each Subcommittee for a Division established by the Rule 21 Committee under section 97 is abolished on the day on which that 22 section is repealed by the amending Act (the abolition day). 23 (2) Any person holding office as a member of any such 24 Subcommittee immediately before the abolition day: 25 (a) ceases to hold office as such on that day, and 26 (b) is not entitled to any remuneration or compensation 27 because of the loss of that office. 28 45 Interim rules of the Tribunal taken to be made by Rule Committee 29 (1) On and from the repeal of the Administrative Decisions Tribunal 30 Rules (Transitional) Regulation 1998 by the amending Act, the 31 provisions set out in Schedule 1 to that Regulation as in force 32 immediately before that repeal: 33 (a) are taken to be and have effect as if they were rules of the 34 Tribunal that had been made by the Rule Committee under 35 this Act, and 36 (b) may be cited as the Administrative Decisions Tribunal 37 Rules 1998, 38 and may be renamed, amended and repealed accordingly. 39 Page 18

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of Administrative Decisions Tribunal Act 1997 Schedule 1 (2) Sections 39, 40 and 41 of the Interpretation Act 1987 do not 1 apply to the rules taken to have been made by operation of this 2 clause. 3 46 Existing regulations not affected 4 The amendment made to section 145 by the amending Act does 5 not affect the continued validity of any regulations that are in 6 force immediately before the commencement of the amendment. 7 Page 19

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 2 Amendment of other Acts and Regulations Schedule 2 Amendment of other Acts and 1 Regulations 2 (Section 4) 3 2.1 Administrative Decisions Tribunal (General) Regulation 4 2004 5 [1] Clause 8 Fees not payable by Crown 6 Omit the clause. 7 [2] Part 4 Rules of the Tribunal 8 Omit the Part. 9 [3] Clause 13 Amendment of Act 10 Omit the clause. 11 [4] Clause 14 Transitional provision: references to senior judicial members 12 of former Equal Opportunity Tribunal 13 Omit the clause. 14 2.2 Administrative Decisions Tribunal Rules (Transitional) 15 Regulation 1998 16 [1] Schedule 1 Administrative Decisions Tribunal (Interim) Rules 1998 17 Omit "(Interim)" from rule 1. 18 [2] Schedule 1, rule 15 (3) 19 Omit the subrule. 20 [3] Schedule 1, rule 20 21 Omit the second sentence of the note at the end of the rule. 22 2.3 Anti-Discrimination Act 1977 No 48 23 [1] Section 98 Fees or rewards for representing parties 24 Omit section 98 (1), (2) and (4). 25 [2] Section 107 Dismissal of proceedings 26 Omit the section. 27 Page 20

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of other Acts and Regulations Schedule 2 [3] Section 108 Order or other decision of Tribunal 1 Omit "$40,000" from section 108 (2) (a). Insert instead "$100,000". 2 [4] Section 110 3 Omit the section. Insert instead: 4 110 Tribunal may award costs 5 The Tribunal may award costs under section 88 of the 6 Administrative Decisions Tribunal Act 1997 in respect of 7 proceedings before the Tribunal in relation to a complaint. 8 [5] Section 126 9 Omit the section. Insert instead: 10 126 Granting of exemptions by President 11 (1) Granting of exemptions 12 The President may, by order published in the Gazette, grant an 13 exemption from this Act or the regulations or such parts of this 14 Act or the regulations as are specified in the order in respect of: 15 (a) a person or class of persons, or 16 (b) an activity or class of activity, or 17 (c) any other matter or circumstance specified in the order. 18 (2) An exemption is subject to such conditions, if any, as may be 19 specified in the order. 20 (3) Duration of exemptions 21 An exemption remains in force for the period specified in the 22 order, which cannot be more than 10 years. 23 (4) Renewal of exemptions 24 The President may renew any exemption, for no more than 10 25 years at a time, by making a new order in accordance with 26 subsection (1). 27 (5) Variation and revocation of exemptions 28 The power to make an order conferred by this section includes 29 power, exercisable in the same manner and subject to the same 30 conditions, to vary or revoke any order so made. 31 (6) Applications in relation to exemptions 32 The President may grant, renew, vary or revoke an exemption 33 only on the written application of a person. The regulations may 34 Page 21

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 2 Amendment of other Acts and Regulations make provision for or with respect to the making of such 1 applications. 2 (7) In deciding whether to grant or refuse an application, the 3 President may consult with such persons or bodies as the 4 President considers appropriate in the circumstances. 5 (8) The President must make a decision on any such application 6 within the period of 60 days after the application is made. 7 (9) Reviews of exemption decisions by Tribunal 8 An affected person may apply to the Tribunal for a review of any 9 of the following decisions (exemption decisions): 10 (a) a decision to refuse to grant an exemption, 11 (b) a decision to refuse to renew an exemption, 12 (c) a decision to grant an exemption (whether or not subject to 13 conditions), 14 (d) a decision to vary or revoke an order granting an 15 exemption. 16 (10) For the purposes of subsection (9), a person is an affected person 17 in relation to an exemption decision if: 18 (a) the person applied for the decision or for the grant or 19 renewal of the exemption to which the decision relates, or 20 (b) the person is otherwise directly affected by the decision. 21 (11) Section 53 (Internal reviews) of the Administrative Decisions 22 Tribunal Act 1997 does not apply to any exemption decision. 23 [6] Schedule 1 Savings and transitional provisions 24 Insert at the end of clause 1 (1): 25 Administrative Decisions Tribunal Amendment Act 2008 (to the 26 extent that it amends this Act) 27 [7] Schedule 1 28 Insert at the end of the Schedule (with appropriate Part and clause numbers): 29 Part Administrative Decisions Tribunal 30 Amendment Act 2008 31 Definition 32 In this Part: 33 Page 22

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of other Acts and Regulations Schedule 2 amending Act means the Administrative Decisions Tribunal 1 Amendment Act 2008. 2 Legal representation 3 Section 98, as in force immediately before its amendment by the 4 amending Act, continues to apply to any proceedings in the 5 Tribunal that were commenced before the commencement of that 6 amendment. 7 Dismissal of proceedings 8 Section 107, as in force immediately before its repeal by the 9 amending Act, continues to apply in relation to any proceedings 10 in the Tribunal that were commenced before the repeal of that 11 section. 12 Increase in maximum damages amount for section 108 13 (1) The amendment made to section 108 by the amending Act does 14 not apply to or in respect of anything done or omitted to be done 15 before the commencement of the amendment. 16 (2) Accordingly, section 108 as in force immediately before its 17 amendment by the amending Act continues to apply to or in 18 respect of anything done or omitted to be done before the 19 commencement of the amendment. 20 Costs 21 Section 110, as substituted by the amending Act, extends to 22 proceedings in the Tribunal that were commenced, but not finally 23 determined, before that substitution. 24 Existing exemptions under section 126 25 (1) An exemption that is in force under section 126 immediately 26 before the substitution of that section by the amending Act (a 27 continued exemption) is taken to be an exemption granted under 28 section 126 as substituted. 29 (2) A continued exemption ceases to be in force when the period for 30 its duration specified in the order granting the exemption expires, 31 unless it is sooner revoked. 32 (3) A continued exemption may be renewed, varied or revoked by 33 the President under section 126 (as substituted by the amending 34 Act). 35 Page 23

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 2 Amendment of other Acts and Regulations (4) Nothing in this clause authorises or permits any person to apply 1 to the Tribunal for the review of any decision of the Minister or 2 the Board made in relation to a continued exemption before the 3 substitution of section 126. 4 2.4 Anti-Discrimination Regulation 2004 5 [1] Clause 5 Matters to be considered in relation to exemption orders 6 Omit "Minister and the Board" from clause 5 (1). 7 Insert instead "President". 8 [2] Clause 5 (3) 9 Omit "Minister or the Board" and "their". 10 Insert instead "President" and "the President's", respectively. 11 2.5 Building Professionals Act 2005 No 115 12 [1] Section 36 Appeals to Appeal Panel against action taken by Tribunal 13 Omit the section. 14 [2] Part 3A 15 Insert after Part 3: 16 Part 3A Appeals against decisions of Tribunal 17 44A Definition 18 In this Part: 19 accreditation decision means any decision or finding made, or 20 action taken, by the Tribunal in proceedings commenced by an 21 application made under this Act (whether made in exercise of its 22 review jurisdiction or original jurisdiction under the 23 Administrative Decisions Tribunal Act 1997). 24 44B Application of Administrative Decisions Tribunal Act 1997 25 The provisions of Part 1 of Chapter 7 of the Administrative 26 Decisions Tribunal Act 1997 do not apply to any accreditation 27 decision. 28 Note. Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 29 1997 provides that certain decisions of the Tribunal may be appealed to 30 an Appeal Panel of the Tribunal. 31 Page 24

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of other Acts and Regulations Schedule 2 44C Right to appeal to Supreme Court 1 (1) A party to any proceedings in which the Tribunal has made an 2 accreditation decision may appeal to the Supreme Court against 3 the decision of the Tribunal. 4 (2) An appeal under this Part to the Supreme Court: 5 (a) may be made on any question of law, and 6 (b) with the leave of the Supreme Court, may extend to a 7 review of the merits of the decision concerned. 8 (3) Despite subsections (1) and (2), an appeal does not lie to the 9 Supreme Court under this Part against any of the following 10 decisions of the Tribunal except by leave of the Supreme Court: 11 (a) an interlocutory decision, 12 (b) a decision made with the consent of the parties, 13 (c) a decision as to costs. 14 (4) The Tribunal (or any of the members constituting the Tribunal) 15 cannot be made a party to an appeal under this Part. Rules of court 16 made under the Supreme Court Act 1970 may make provision for 17 the parties to any such appeal (including the designation of a 18 respondent where the only party in the proceedings from which 19 the appeal is brought was the appellant). 20 (5) An appeal to the Supreme Court under this Part must be made: 21 (a) within such time and in such manner as is prescribed by 22 rules of court made under the Supreme Court Act 1970, or 23 (b) within such further time as the Supreme Court may allow. 24 44D Appeals on questions of law 25 (1) If an appeal under this Part is restricted to questions of law, the 26 Supreme Court is to determine the appeal and may make such 27 orders as it thinks appropriate in light of its determination. 28 (2) The orders that may be made by the Supreme Court on appeal 29 include (but are not limited to): 30 (a) an order affirming or setting aside the decision of the 31 Tribunal, and 32 (b) an order remitting the whole or any part of the case to be 33 heard and decided again by the Tribunal (either with or 34 without the hearing of further evidence) in accordance 35 with the directions of the Supreme Court. 36 Page 25

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 2 Amendment of other Acts and Regulations 44E Appeals on the merits 1 (1) If an appeal under this Part extends to a review of the merits of an 2 accreditation decision, the Supreme Court is to decide what the 3 correct and preferable decision is having regard to the material 4 then before it, including the following: 5 (a) any relevant factual material, 6 (b) any applicable written or unwritten law. 7 (2) The Supreme Court may exercise all the functions that are 8 conferred or imposed by or under this Act or the Administrative 9 Decisions Tribunal Act 1997 on the Tribunal to make the 10 decision concerned. 11 (3) In determining any such appeal, the Supreme Court may decide: 12 (a) to affirm the decision, or 13 (b) to vary the decision, or 14 (c) to set aside the decision and make a decision in substitution 15 for the decision it set aside. 16 44F Appeal does not stay decision appealed against 17 Subject to any interlocutory order made by the Supreme Court, an 18 appeal under this Part does not affect the operation of the 19 accreditation decision appealed against or prevent the taking of 20 action to implement the decision. 21 [3] Schedule 2 Savings, transitional and other provisions 22 Insert at the end of clause 1 (1): 23 Administrative Decisions Tribunal Amendment Act 2008 (to the 24 extent that it amends this Act) 25 [4] Schedule 2, Part 4 26 Insert at the end of the Schedule: 27 Part 4 Provisions consequent on enactment of 28 Administrative Decisions Tribunal 29 Amendment Act 2008 30 11 Definitions 31 In this Part: 32 amending Act means the Administrative Decisions Tribunal 33 Amendment Act 2008. 34 Page 26

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of other Acts and Regulations Schedule 2 appeal abolition date means the day on which Part 3A (as 1 inserted by the amending Act) commences. 2 existing right to appeal means a right to appeal to an Appeal 3 Panel of the Tribunal against a decision, finding or action of the 4 Tribunal that was in existence immediately before the appeal 5 abolition date (whether or not that right was exercised before that 6 date). 7 12 Pending proceedings before an Appeal Panel 8 (1) This clause applies to proceedings before an Appeal Panel of the 9 Tribunal that: 10 (a) were instituted in exercise of an existing right to appeal, 11 and 12 (b) have not been finally determined by the Appeal Panel 13 before the appeal abolition date for that appeal right. 14 (2) Subject to clause 13, proceedings to which this clause applies are 15 to be determined as if the amending Act had not been enacted. 16 (3) Accordingly, any rules, regulations or other law that would have 17 been applicable to the proceedings had the amending Act not 18 been enacted continue to apply to the proceedings as if the 19 amending Act had not been enacted. 20 13 Existing rights of appeal to Appeal Panel 21 (1) This clause applies to an existing right to appeal that had not been 22 exercised before the appeal abolition date. 23 (2) No appeal lies to an Appeal Panel of the Tribunal under an 24 existing right to appeal to which this clause applies on or after the 25 appeal abolition date, but lies instead to the Supreme Court under 26 the new appeal provisions as if those provisions had been in force 27 at the time the right to appeal first accrued. 28 (3) For the purposes of this clause, the new appeal provisions are the 29 provisions of Part 3A (as inserted by the amending Act). 30 Page 27

Administrative Decisions Tribunal Amendment Bill 2008 Schedule 2 Amendment of other Acts and Regulations (4) Despite anything in the Supreme Court Act 1970 or the Civil 1 Procedure Act 2005 or any rules of court made under either of 2 those Acts, an appeal made to the Supreme Court pursuant to this 3 clause must be made within the same period provided by or under 4 this Act or the Administrative Decisions Tribunal Act 1997 for an 5 appeal to an Appeal Panel of the Tribunal immediately before the 6 appeal abolition date. 7 2.6 Explosives Act 2003 No 39 8 Section 24 Review of decisions by Administrative Decisions Tribunal 9 Omit the second sentence of section 24 (5). 10 2.7 Supreme Court Act 1970 No 52 11 [1] Section 48 Assignment to the Court of Appeal 12 Insert "an Appeal Panel or" before "the Legal Services Division" in 13 subparagraph (viii) of the definition of specified tribunal in section 48 (1) (a). 14 [2] Section 48 (2) (ha) 15 Insert after section 48 (2) (h): 16 (ha) for determining any question of law referred to the Court 17 for its opinion under the Administrative Decisions 18 Tribunal Act 1997, 19 [3] Fourth Schedule Savings and transitional provisions 20 Insert at the end of clause 1 (2): 21 Administrative Decisions Tribunal Amendment Act 2008, but 22 only in relation to the amendments made to this Act 23 Page 28

Administrative Decisions Tribunal Amendment Bill 2008 Amendment of other Acts and Regulations Schedule 2 [4] Fourth Schedule 1 Insert at the end of the Schedule (with appropriate Part and clause numbers): 2 Part Provisions consequent on enactment of 3 Administrative Decisions Tribunal 4 Amendment Act 2008 5 Application of amendments 6 Each amendment made to section 48 by the Administrative 7 Decisions Tribunal Amendment Act 2008 applies to proceedings 8 commenced in the Court after the commencement of the 9 amendment concerned. 10 Page 29

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