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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
The object of this Bill is to establish a Residential Tribunal and to provide for
its powers and procedures. The Bill provides for the abolition of the
Residential Tenancies Tribunal constituted under the Residential Tenancies
Act 1987, the functions of which will be exercised by the new Tribunal.
The Bill provides for the amendment of the Residential Tenancies Act 1987
so as to repeal the provisions of that Act that established the former Tribunal
and for the consequential amendment of other Acts.
The Bill also provides for the transfer to the Residential Tribunal of the
powers and functions of the Community Schemes Board constituted under
Part 5A of the Community Land Management Act 1989 and the Strata
Schemes Board constituted under Part 3 of Chapter 6 of the Strata Schemes
Management Act 1996 and for the transfer of the functions of the Registrar
and other staff of those Boards to the Registrar and staff of the Tribunal.
* Amended in committee--see table at end of volume.
Preliminary
Clause l sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or
days to be appointed by proclamation.
Clause 3 specifies the objects of the proposed Act.
Clause 4 defines certain words and expressions used in the proposed Act.
Clause 5 provides that notes included in the proposed Act are explanatory
notes and do not form part of the proposed Act.
Part 2
Establishment of Tribunal
Division 1
Establishment and functions
Clause 6 establishes the Tribunal.
Clause 7 provides that the Tribunal is to be constituted by a Chairperson,
one or more Deputy Chairpersons. senior members and other members.
Division 2
Membership of Tribunal
Clause 8 provides for the appointment of members of the Tribunal on either
a full-time or part-time basis.
Clause 9 prescribes the requisite qualifications for membership of the
Tribunal. The Chairperson or a Deputy Chairperson must be qualified for
appointment as a Magistrate. Senior members must be legally qualified.
Other members must have appropriate specialist knowledge and skills. The
clause gives effect to a schedule that prescribes the terms of office of the
members and makes provision for such matters as the remuneration and
seniority of members and the circumstances that give rise to a vacancy of
office.
Clause 10 describes the responsibilities of the Chairperson in ensuring the
proper functioning of the Tribunal, and empowers the Chairperson to give
directions in connection with a range of matters concerning the business of
the Tribunal. The Chairperson's functions may be performed under delegated
authority by staff or other members of the Tribunal.
Explanatory note page 2
Clause l 1 provides that members of the Tribunal generally have the
functions assigned to them under the proposed Act or other laws.
Division 3
Organisation
Clause 12 provides that the Tribunal is to exercise its functions in specialist
Divisions established by the regulations.
Clause 13 confers power on the Chairperson to determine the constitution of
the Tribunal for the purposes of different classes of matters before it, and
provides for the reconstitution of the Tribunal proceedings if a member
should die or be otherwise unavailable or cease to be a member.
Clause 14 provides for simultaneous sittings of the Tribunal or of its
Divisions.
Clause 15 provides for an annual report to be submitted to Parliament
concerning the work and activities of the Tribunal.
Division 4
Assessors
Clause 16 provides for the appointment of assessors with specialist
knowledge in any of the areas over which the Tribunal exercises jurisdiction.
Clause 17 provides for assessors to be commissioned to inquire into and
report on a matter concerning the business of the Tribunal.
Clause 18 enables assessors to provide other advice and assistance to the
Tribunal.
Division 5
Registrar and staff
Clause 19 provides for the appointment of a Registrar. Deputy Registrars
and staff to assist the Tribunal in the exercise of its functions.
Clause 20 describes the functions of the Registrar and Deputy Registrars.
The Registrar, in particular. is responsible for assisting the Chairperson in
managing the affairs of the Tribunal.
Part 3
Jurisdiction of Tribunal
Clause 21 describes the jurisdiction of the Tribunal. In general, the Tribunal
exercises any jurisdiction conferred on it by or under other enactments. When
the proposed Act has commenced. this jurisdiction will consist of the
jurisdiction now exercised by the Commercial Tribunal. the consumer claims
tribunals and other persons and bodies exercising functions under the Acts
amended by Schedule 4. Other laws enacted from time to time may confer
further jurisdiction on the Tribunal.
Explanatory note page 3
Clause 22 provides for determining the proper forum when another court or
tribunal has concurrent jurisdiction with the Tribunal in a particular matter. A
person bringing a claim or seeking to have the Tribunal review the decision
of any person or body may generally choose whichever forum the person
prefers. the proper forum being determined by where the proceedings are first
commenced.
Clause 23 provides for the transfer of proceedings from the Tribunal to a
court that has jurisdiction in the matter or from a court to the Tribunal, if it
has jurisdiction.
Part 4
Procedure of Tribunal
Clause 24 describes the general procedure for bringing matters before the
Tribunal.
Clause 25 requires notice of an application lodged with the Tribunal to be
served by the Registrar on other parties to the proceedings.
Clause 26 determines what member presides in proceedings before the
Tribunal when i t is constituted by two or more persons.
Clause 27 describes the general features of proceedings before the Tribunal.
The Tribunal is not bound by the rules of evidence and is to conduct its
business with minimum formality. It has a duty to assist the understanding of
the parties before i t as to the significance of any aspect of the proceedings
and to deal w i t h matters as quickly as practicable. The clause confers various
powers on the Tribunal in connection with proceedings before it.
Clause 28 allows the member presiding at a sitting of the Tribunal to give
procedural directions that appear to the member to be cost-effective and
expeditious.
Clause 29 allows the Tribunal, if it thinks fit, to allow errors or omissions in
pleadings or other documents filed in connection with proceedings to be
corrected and to cure irregularities in connection with the commencement or
conduct of proceedings.
Clause 30 provides that hearings before the Tribunal are generally to be in
public. but confers discretion on the Tribunal to order a private or partly
private hearing and empowers it to make orders for the suppression of names
and facts involved in the proceedings.
Clause 31 allows the Tribunal, in an appropriate case, to dispense with a
hearing of any matter and to decide the matter by a review of documentary
evidence.
Clause 32 imposes a duty on the Tribunal to afford the parties to a dispute
before it a reasonable opportunity to present their cases and to make
submissions to the Tribunal.
Explanatory note page 4
Clause 33 deals with representation of parties before the Tribunal. The
general rule is that the parties to proceedings must present their own cases.
but in circumstances prescribed by the regulations the Tribunal may by order
allow a party to be represented by someone else. The Tribunal may itself
appoint a person to represent an incapacitated person.
Clause 34 provides for the use of interpreters to assist the Tribunal.
Clause 35 allows the Tribunal to take evidence by telephone or
closed-circuit television or other means.
Clause 36 allows the Tribunal to call evidence of its own motion, to
administer oaths and examine and summon witnesses.
Clause 37 empowers the Registrar to issue summonses to compel the
attendance of witnesses or the production of documentary or other evidence.
Clause 38 allows the apprehension by warrant of witnesses who fail to obey
a summons.
Clause 39 defines what constitutes contempt of the Tribunal and provides
for its punishment.
Clause 40 affords to legal practitioners and other persons appearing or
testifying before the Tribunal the same protections and immunities as when
they appear or testify before the Supreme Court.
Clause 41 determines the decision of the Tribunal, when constituted by two
or more persons. on a matter where opinion is divided.
Clause 42 allows the Tribunal to reserve its decision on a matter before it.
(subject to time limits imposed by regulations under proposed section 45).
Clause 43 confers a general power on the Tribunal. in making any order it is
otherwise empowered to make. to attach conditions to the order.
Clause 44 allows the Tribunal to give effect to agreements between the
parties for the settlement of matters before it.
Clause 45 requires the Tribunal to serve notice of its decisions on the parties
to the relevant proceedings and to give reasons in writing (if it has not
already done so) at the request of either party.
Clause 46 enables the Tribunal to correct any error discovered in the text of
its judgments or statements.
Clause 47 provides that an order made by the Tribunal for the payment of
money is, when its particulars are certified by the Registrar and the certificate
filed with a court of competent jurisdiction. enforceable as a judgment of that
court.
Explanatory note page 5
Clause 48 provides for the award of costs in respect of proceedings before
the Tribunal. Costs are to be awarded, in general, only if the parties were
legally represented, but costs are available in circumstances to be determined
by the regulations or in special circumstances recognised by the Tribunal in a
particular case.
Part 5
Alternative dispute resolution
Division 1
Conciliation and preliminary measures
Clause 49 imposes a duty on the Tribunal to attempt to bring the parties to a
dispute to a settlement without the need for further proceedings.
Clause 50 provides for the holding of preliminary conferences between the
parties before the hearing of a matter before the Tribunal, as a means of
attempting to achieve early settlement.
Division 2
Mediation and neutral evaluation
Clause 51 defines mediation session, mediator, neutral evaluation session
and neutral evaluator for the purposes of the proposed Division.
Clause 52 specifies the difference between mediation and neutral
evaluation. In a mediation. the mediator presides over a negotiation process
in which the parties are encouraged to come to a resolution of their dispute.
In a neutral evaluation, the evaluator attempts to simplify the issues. isolate
the relevant principles that will determine the outcome of the dispute and
evaluate each party's probability of success.
Clause 53 provides for the appointment of the persons who will conduct
mediation sessions and neutral evaluation sessions.
Clause 54 allows the Tribunal to refer any matter arising in proceedings
before it for mediation or neutral evaluation.
Clause 55 enables the regulations to require the costs of mediation or
neutral evaluation to be borne by the parties to the dispute.
Clause 56 permits the Tribunal to make orders giving effect to any
compromise arrived at in a mediation or neutral evaluation of a dispute.
Clause 57 extends to mediations and neutral evaluations the same privilege
with regard to defamation as exists in relation to legal proceedings.
Clause 58 restricts the publication. by a mediator or neutral evaluator, of
information obtained in a mediation or neutral evaluation.
Clause 59 provides that nothing in the proposed Division precludes the
parties to proceedings from seeking other means of resolving their dispute.
Explanatory note page 6
Part 6
Appeals and rehearings
Clause 60 provides that there is no appeal from the Tribunal by proceedings
in the nature of the prerogative writs or by proceedings in equity except to
the extent that the Tribunal's jurisdiction is disputed.
Clause 61 allows the Tribunal to refer any matter of law to the District
Court for determination.
Clause 62 affords a right of appeal to the District Court on a matter of law.
Clause 63 provides for a limited right to have a matter reheard by the
Tribunal in certain cases where the Chairperson is satisfied that an injustice
has been done.
Clause 64 provides that an appeal under this Part does not stay the decision
against which the appeal is brought unless the District Court hearing the
appeal otherwise orders or other provision is made by another law.
Part 7
Miscellaneous
Clause 65 applies certain provisions of the Evidence Act 1995 to the
Tribunal in connection with the production of documents.
Clause 66 prohibits the disclosure. by persons employed or acting for the
purposes of the proposed Act. of information that comes to their knowledge
while so employed or acting.
Clause 67 provides that the proposed Act is to bind the Crown.
Clause 68 provides for a seal of the Tribunal. of which judicial notice may
be taken.
Clause 69 provides for the authentication of documents of the Tribunal
(otherwise than by its seal) by signature of the Chairperson, Deputy
Chairperson. senior member or Registrar, of whose signatures judicial notice
may be taken.
Clause 70 creates a presumption in legal proceedings that the constitution
and decisions of the Tribunal, and the appointment or holding of office by its
members. are not irregular.
Clause 71 provides for the giving of notices and lodgment of documents for
the purposes of the proposed Act.
Clause 72 provides for the return to their rightful owners of documents used
in evidence before the Tribunal.
Clause 73 provides for witnesses' expenses.
Explanatory note page 7
Clause 74 provides that proceedings for an offence against the proposed Act
or the regulations are to be taken before a Local Court.
Clause 75 affords to members of the Tribunal, the Registrar and Deputy
Registrars protection from liability for acts and omissions in the exercise of
their respective functions.
Clause 76 allows the Chairperson to report to the Minister or to the
Director-General of the Department of Fair Trading concerning matters
arising under the administration of the proposed Act or affecting the
jurisdiction of the Tribunal.
Clause 77 allows regulations to be made in aid of the proposed Act.
Clause 78 provides for the form of documents to be used for the purposes of
the proposed Act.
Clause 79 gives effect to a Schedule of consequential amendments to other
Acts.
Clause 80 gives effect to a Schedule of savings. transitional and other
provisions.
Clause 81 requires a review of the Act to be undertaken after 2 years of
operation.
Schedules
Schedule 1 contains additional provisions relating to members of the
Tribunal.
Schedule 2 contains additional provisions relating to assessors of the
Tribunal.
Schedule 3 contains additional provisions relating to mediators and neutral
evaluators.
Schedule 4 contains consequential amendments to certain Acts.
Schedule 5 contains savings. transitional and other provisions.
Explanatory note page 8