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PARLIAMENT OF VICTORIA
Victorian Civil and Administrative Tribunal Act
1998
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 1
3. Definitions 2
4. When does a person make a decision? 6
5. When are a person's interests affected by a decision? 7
6. When is a document in a person's possession? 8
7. Act binds the Crown 8
PART 2--VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL 9
Division 1--Establishment and Membership 9
8. Establishment of Tribunal 9
9. Membership 9
10. President 9
11. Vice Presidents 10
12. Deputy Presidents 10
13. Senior members 11
14. Ordinary members 11
Division 2--General Provisions relating to Members 12
15. Applications for appointment 12
16. Appointment of members 12
17. Remuneration and allowances 13
18. Prohibition on outside employment 13
19. Disclosure of interests 13
20. Resignation 14
21. Vacation of office 14
22. Suspension of non-judicial member 14
23. Investigation of non-judicial member 14
24. Removal of non-judicial member from office 16
25. Validity of proceedings 16
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Clause Page
Division 3--Acting Appointments 16
26. Acting President 16
27. Acting Vice President 18
28. Acting Deputy President 19
29. Additional acting judicial appointments 20
Division 4--Administration 21
30. Administrative functions of President and Vice Presidents 21
31. President to advise Minister 22
32. Appointment of registrars and other staff 22
33. Delegation by President and Vice Presidents 23
34. Secrecy 23
35. Prohibition on secondary disclosures 24
36. Further restriction on disclosure 25
37. Annual report 26
38. Where may the Tribunal sit? 27
PART 3--THE TRIBUNAL--JURISDICTION AND FUNCTIONS 28
Division 1--Introductory 28
39. Structure of Part 28
40. Jurisdiction of the Tribunal 28
41. What is original jurisdiction? 28
42. What is review jurisdiction? 28
Division 2--Original jurisdiction 28
43. How is original jurisdiction invoked? 28
44. Functions of the Tribunal 29
Division 3--Review jurisdiction 29
Subdivision 1--Obtaining reasons for decisions 29
45. Request for statement of reasons for decision 29
46. Decision-maker to give statement of reasons on request 29
47. The Tribunal may order statement of reasons to be given 31
Subdivision 2--Jurisdiction of the Tribunal 32
48. How is review jurisdiction invoked? 32
49. Decision-maker must lodge material 32
50. Effect of original decision pending review 33
51. Functions of Tribunal on review 34
52. Limitation of courts' jurisdiction in planning matters 36
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Clause Page
Subdivision 3--Matters of privilege and policy 37
53. Cabinet documents 37
54. Crown privilege 38
55. Certain questions not required to be answered 39
56. Exclusion of general rules of public interest 40
57. Application of statements of policy 40
PART 4--THE TRIBUNAL--GENERAL PROCEDURE 42
Division 1--Introduction 42
58. Structure of Part 42
Division 2--Parties 42
59. Who are the parties to a proceeding? 42
60. Joinder of parties 43
61. Unincorporated associations 43
62. Representation of parties 44
63. Interpreters 46
Division 3--Constitution of Tribunal 47
64. Constitution of Tribunal in proceedings 47
65. Who presides in a proceeding? 47
66. Opinions equally divided 48
Division 4--Preliminary procedure 48
67. How to make an application to the Tribunal 48
68. Application fee 49
69. Procedure where a matter is referred to the Tribunal 49
70. Referral fee 49
71. Principal registrar or the Tribunal may reject certain applications 50
72. Notification of commencement 51
73. Intervention 52
74. Withdrawal of proceedings 52
75. Summary dismissal of unjustified proceedings 53
76. Summary dismissal for want of prosecution 53
77. More appropriate forum 54
78. Conduct of proceeding causing disadvantage 54
79. Security for costs 55
80. Directions 56
81. Obtaining information from third parties 56
82. Consolidation of proceedings 56
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Clause Page
Division 5--Compulsory conferences, mediation and settlement 57
83. Compulsory conferences 57
84. Tribunal may require personal attendance at compulsory
conference 58
85. Evidence inadmissible 58
86. Party may object to member hearing the proceeding 59
87. What happens if a party fails to attend a compulsory conference? 59
88. Mediation 59
89. Tribunal may require personal attendance at mediation 60
90. What happens if mediation is successful? 60
91. What happens if mediation is unsuccessful? 60
92. Evidence inadmissible 61
93. Settlement of proceeding 61
Division 6--Referral to experts 61
94. Use of experts 61
95. Special referees 61
96. Referral of questions of law to Court 62
Division 7--Hearings 62
97. Tribunal must act fairly 62
98. General procedure 62
99. Notice of hearings 63
100. Method of conducting hearings 64
101. Hearings to be public unless otherwise ordered 64
102. Evidence 65
103. Authorisation of person to take evidence 66
104. Witness summons 67
105. Rule against self-incrimination does not apply 67
106. Other claims of privilege 68
107. Dealing with questions of law 68
108. Reconstitution of Tribunal 69
Division 8--Costs 70
109. Power to award costs 70
110. Costs of intervention 71
111. Amount of costs 72
112. Presumption of order for costs if settlement offer is rejected 72
113. Provisions regarding settlement offers 73
114. Provisions concerning the acceptance of settlement offers 73
115. Consequences if accepted offer is not complied with 74
Division 9--Orders 75
116. Form and service 75
117. Reasons for final orders 75
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Clause Page
118. When does an order come into operation? 76
119. Correcting mistakes 76
120. Re-opening an order on substantive grounds 77
121. Enforcement of monetary orders 77
122. Enforcement of non-monetary orders 78
Division 10--General powers 78
123. Injunctions 79
124. Declarations 80
125. Advisory opinions 80
126. Extension or abridgment of time and waiver of compliance 80
127. Power to amend documents 81
128. Retention of documents and exhibits 81
129. Power of entry and inspection 82
130. Power to impose conditions and make further orders 83
131. Variation or revocation of procedural order or direction 83
132. Waiver of fees 83
Division 11--Offences 84
133. Non-compliance with order 84
134. Failing to comply with summons 85
135. Failing to give evidence 86
136. False or misleading information 86
137. Contempt 86
138. Appeal against punishment for contempt 88
139. Double jeopardy 89
Division 12--Service of documents 89
140. Service 89
141. When is service effective? 91
Division 13--General 91
142. Judicial notice 91
143. Immunity of participants 92
144. Register of proceedings 93
145. Principal registrar's certificate 94
146. Proceeding files 94
147. Publication of determinations and orders 95
PART 5--APPEALS FROM THE TRIBUNAL 96
148. Appeals from the Tribunal 96
149. Tribunal may stay its order pending appeal 98
PART 6--RULES COMMITTEE 99
Division 1--Establishment of Rules Committee 99
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Clause Page
150. Establishment of Committee 99
151. Functions 99
152. Membership 99
153. Appointment and terms of members 100
Division 2--Procedure of Rules Committee 101
154. Who presides at a meeting? 101
155. Quorum and meeting procedure 101
156. Validity of decisions 101
Division 3--Exercise of Powers 102
157. Power to make rules 102
158. Practice notes 102
PART 7--MISCELLANEOUS 103
159. Dealing with inconsistencies 103
160. Supreme Court--limitation of jurisdiction 103
161. Regulations 103
__________________
SCHEDULES 105
SCHEDULE 1--Variation from Part 3 and 4 for various
proceedings 105
SCHEDULE 2--Subject matter for Rules 132
NOTES 133
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PARLIAMENT OF VICTORIA
A BILL
to establish a Victorian Civil and Administrative Tribunal and for
other purposes.
Victorian Civil and Administrative
Tribunal Act 1998
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to establish a Victorian
Civil and Administrative Tribunal.
5 2. Commencement
(1) This Part comes into operation on the day on
which this Act receives the Royal Assent.
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(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
5 not come into operation before 31 December
1999, it comes into operation on that day.
3. Definitions
In this Act--
"application" means application to the Tribunal;
10 "applicant" means--
(a) a person who makes an application; or
(b) a person who requests or requires a
matter to be referred to the Tribunal;
"Business Licensing Authority" means Business
15 Licensing Authority established under Part 2
of the Business Licensing Authority Act
1998;
"Chief Judge" means Chief Judge of the County
Court;
20 "Chief Justice" means Chief Justice of the
Supreme Court;
"child" means a person under 18 years of age;
"decision-maker" means a person who makes, or
is deemed to have made, a decision under an
25 enabling enactment;
"Deputy President" means Deputy President of
the Tribunal;
"Director" means the Director of the Office of
Fair Trading and Business Affairs in the
30 Department of Justice;
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"enabling enactment" means an enactment by or
under which jurisdiction is conferred on the
Tribunal;
"enactment" means--
5 (a) an Act; or
(b) a subordinate instrument within the
meaning of the Interpretation of
Legislation Act 1984;
"full-time member" means the President, a Vice
10 President, a Deputy President or a senior or
ordinary member who is appointed on a full-
time basis;
"function" includes jurisdiction, power, duty and
authority;
15 "inquiry" means an inquiry conducted by the
Tribunal under an enabling enactment, other
than an inquiry under section 159 of the
Equal Opportunity Act 1995;
"insolvent under administration" means--
20 (a) a person who is an undischarged
bankrupt; or
(b) a person who has executed a deed of
arrangement under Part X of the
Bankruptcy Act 1966 of the
25 Commonwealth (or the corresponding
provisions of the law of another
jurisdiction) if the terms of the deed
have not been fully complied with; or
(c) a person whose creditors have accepted
30 a composition under Part X of the
Bankruptcy Act 1966 of the
Commonwealth (or the corresponding
provisions of the law of another
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jurisdiction) if a final payment has not
been made under that composition;
"judicial member" means the President or a
Vice President;
5 "legal practitioner" means a person admitted to
legal practice in Victoria or an interstate
practitioner within the meaning of the Legal
Practice Act 1996;
"member", in relation to the Tribunal, means the
10 President, a Vice President, a Deputy
President, a senior member or an ordinary
member;
"monetary order" means an order of the
Tribunal requiring the payment of money,
15 including a fine or penalty;
"non-judicial member" means a member other
than the President or a Vice President;
"non-monetary order" means an order of the
Tribunal other than a monetary order;
20 "order" of the Tribunal includes interim order of
the Tribunal;
"ordinary member" means a person appointed
as a member of the Tribunal under section
14;
25 "part-time member" means a senior or ordinary
member who is appointed on a part-time
basis;
"President" means President of the Tribunal;
"presidential member" means the President, a
30 Vice President or a Deputy President;
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"presiding member", in a proceeding, means--
(a) if the Tribunal in that proceeding is
constituted by a single member--that
member; or
5 (b) in any other case--the member who
presides in that proceeding, as
determined in accordance with section
65;
"proceeding" means a proceeding in the
10 Tribunal, including--
(a) an inquiry conducted by the Tribunal,
including an inquiry under section 159
of the Equal Opportunity Act 1995;
(b) a compulsory conference under
15 section 83;
(c) a mediation under section 88--
but, for the avoidance of doubt, not including
a referral by the Tribunal to the Equal
Opportunity Commission under section
20 156(1) of the Equal Opportunity Act 1995;
"professional advocate" has the meaning given
in section 62(8);
"rules" mean rules made by the Rules Committee
under section 157;
25 "senior member" means a person appointed as a
member of the Tribunal under section 13;
"Tribunal" means Victorian Civil and
Administrative Tribunal established by Part
2;
30 "Vice President" means Vice President of the
Tribunal.
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4. When does a person make a decision?
(1) For the purposes of this Act or an enabling
enactment, a person makes a decision if the
person--
5 (a) makes, suspends, revokes or refuses to make
a decision, order, determination or
assessment (including a decision not to make
a decision, order, determination or
assessment);
10 (b) gives, suspends, revokes or refuses to give a
certificate, direction, approval, consent or
permission;
(c) issues, suspends, revokes or refuses to issue
a licence, authority or other instrument;
15 (d) imposes a condition or restriction;
(e) amends or varies any of the things referred to
in paragraph (a), (b), (c) or (d);
(f) makes a declaration, demand, direction or
requirement;
20 (g) retains or refuses to deliver up an article;
(h) does or refuses to do any other act or thing.
(2) For the purposes of this Act or an enabling
enactment--
(a) a decision is made under an enactment if it is
25 made in the exercise or purported exercise of
a function conferred or imposed by or under
that enactment;
(b) a decision that purports to be made under an
enactment is deemed to be a decision made
30 under that enactment even if the decision
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was beyond the power of the decision-
maker;
(c) a refusal by a decision-maker to make a
decision under an enactment because the
5 decision-maker considers that the decision
cannot lawfully be made is deemed to be a
decision made under that enactment to refuse
to make the decision;
(d) a failure by a decision-maker to make a
10 decision under an enactment within the
period specified by that enactment is deemed
to be a decision by the decision-maker at the
end of that period to refuse to make the
decision.
15 (3) If a person who made a decision by reason of
holding or performing the duties of an office or
appointment or a position in the public service
ceases to hold or perform the duties of that office,
appointment or position--
20 (a) the person for the time being holding or
performing the duties of that office,
appointment or position is deemed to be the
decision-maker in respect of that decision; or
(b) if there is no such person, or if the office or
25 position no longer exists, a person specified
by the President is deemed to be the
decision-maker in respect of that decision.
5. When are a person's interests affected by a decision?
If an enabling enactment provides that a person
30 whose interests are affected by a decision may
apply to the Tribunal for review of the decision--
(a) "interests" means interests of any kind and
is not limited to proprietary, economic or
financial interests;
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(b) the person may apply to the Tribunal
whether the person's interests are directly or
indirectly affected by the decision and
whether or not any other person's interests
5 are also affected by the decision.
6. When is a document in a person's possession?
For the purposes of this Act, a document is in a
person's possession if it is within the possession,
power or control of the person.
10 7. Act binds the Crown
(1) This Act binds the Crown in right of Victoria and,
so far as the legislative power of the Parliament
permits, the Crown in all its other capacities.
(2) However, nothing in this Act makes the Crown in
15 any of its capacities liable for an offence.
_______________
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PART 2--VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL
Division 1--Establishment and Membership
8. Establishment of Tribunal
5 (1) The Victorian Civil and Administrative Tribunal
is established.
(2) The Tribunal must have an official seal, which is
to be kept in such custody as the Tribunal directs
and is only to be used as authorised by the
10 Tribunal.
9. Membership
The members of the Tribunal are a President and
as many Vice Presidents, Deputy Presidents,
senior members and ordinary members as are
15 appointed in accordance with this Act.
10. President
(1) The President must be a judge of the Supreme
Court who is recommended for appointment by
the Minister after consultation with the Chief
20 Justice.
(2) Subject to this Act, the President holds office for
the period, not exceeding 5 years, specified in his
or her instrument of appointment.
(3) The appointment of a judge of the Supreme Court
25 as President does not affect his or her tenure of
office or status as a judge nor the payment of his
or her salary or allowances as a judge nor any
other rights or privileges that he or she has as a
judge.
30 (4) Service in the office of President must be taken
for all purposes to be service in the office of judge
of the Supreme Court.
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(5) Nothing in this Act prevents a judge of the
Supreme Court appointed as President from
constituting the Supreme Court for the purpose of
the exercise by the Supreme Court of any of its
5 functions.
11. Vice Presidents
(1) As many Vice Presidents as are required for the
proper functioning of the Tribunal shall be
appointed.
10 (2) A Vice President must be a judge of the County
Court who is recommended for appointment by
the Minister after consultation with the Chief
Judge.
(3) Subject to this Act, a Vice President holds office
15 for the period, not exceeding 5 years, specified in
his or her instrument of appointment.
(4) The appointment of a judge of the County Court
as a Vice President does not affect his or her
tenure of office or status as a judge nor the
20 payment of his or her salary or allowances as a
judge nor any other rights or privileges that he or
she has as a judge.
(5) Service in the office of Vice President must be
taken for all purposes to be service in the office of
25 judge of the County Court.
(6) Nothing in this Act prevents a judge of the County
Court appointed as a Vice President from
constituting the County Court for the purpose of
the exercise by the County Court of any of its
30 functions.
12. Deputy Presidents
(1) As many Deputy Presidents as are required for the
proper functioning of the Tribunal shall be
appointed.
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(2) A person is not eligible for appointment as a
Deputy President unless he or she is a person who
has been admitted to legal practice in Victoria for
not less than 5 years.
5 (3) A Deputy President holds office--
(a) subject to this Act, for a term of 5 years; and
(b) on a full-time basis.
13. Senior members
(1) As many senior members as are required for the
10 proper functioning of the Tribunal shall be
appointed.
(2) A person is not eligible for appointment as a
senior member unless he or she--
(a) has been admitted to legal practice in
15 Victoria for not less than 5 years; or
(b) has, in the opinion of the Minister, extensive
knowledge or experience in relation to any
class of matter in respect of which functions
may be exercised by the Tribunal.
20 (3) Subject to this Act, a senior member holds office
for a term of 5 years.
(4) A senior member may be appointed on a full-time
or part-time basis, including a sessional basis.
14. Ordinary members
25 (1) As many ordinary members as are required for the
proper functioning of the Tribunal shall be
appointed.
(2) A person is not eligible for appointment as an
ordinary member unless he or she--
30 (a) is a legal practitioner; or
(b) has, in the opinion of the Minister, special
knowledge or experience in relation to any
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class of matter in respect of which functions
may be exercised by the Tribunal.
(3) Subject to this Act, an ordinary member holds
office for a term of 5 years.
5 (4) An ordinary member may be appointed on a full-
time or part-time basis, including a sessional
basis.
Division 2--General Provisions relating to Members
15. Applications for appointment
10 (1) A person may apply to the Minister for
appointment as a member of the Tribunal.
(2) The Minister may refer an application to the Chief
Commissioner of Police.
(3) The Chief Commissioner of Police must inquire
15 into and report, within 30 days, to the Minister on
any matters concerned with the application that
the Minister requests.
(4) An applicant is required to consent to the referral
of the application to the Chief Commissioner of
20 Police and the making of inquiries and reports
under sub-section (3).
(5) If the applicant does not consent under sub-
section (4), the Minister may refuse to consider
the application.
25 (6) Nothing in this section prevents a person who has
not applied under this section being appointed as a
member of the Tribunal.
16. Appointment of members
(1) Members are appointed by the Governor in
30 Council on the recommendation of the Minister.
(2) A member is eligible for re-appointment.
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(3) The Public Sector Management Act 1992
(including Part 9) does not apply to a member in
respect of the office of member.
17. Remuneration and allowances
5 (1) A member is entitled to receive the remuneration
and allowances that are fixed from time to time by
the Governor in Council.
(2) The Governor in Council may fix different
remuneration and allowances for different classes
10 of members.
(3) For the purposes of sub-section (2), the Governor
in Council may determine the classes of members
in any manner the Governor in Council thinks fit.
(4) This section does not apply to a judicial member.
15 18. Prohibition on outside employment
A non-judicial member who is appointed on a
full-time basis must not, without the consent of
the President and in accordance with any
conditions attached to that consent, engage in the
20 practice of any profession or in any paid
employment (whether within or outside Victoria)
outside the duties of his or her office.
19. Disclosure of interests
(1) This section applies to a member who constitutes,
25 or is to constitute, the Tribunal for the purposes of
a particular proceeding, whether with or without
others, and who has or acquires an interest,
pecuniary or otherwise, that could conflict with
the proper performance of the functions of the
30 member in relation to that proceeding.
(2) The member--
(a) must not take part in the proceeding or
exercise any powers in relation to it, unless
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all parties to the proceeding agree otherwise;
and
(b) if not the President, must disclose the nature
of the interest to the President; and
5 (c) if the President, must disclose the nature of
the interest to the Chief Justice.
20. Resignation
A member may resign his or her office as member
by delivering to the Governor a signed letter of
10 resignation.
21. Vacation of office
(1) The office of a judicial member becomes vacant if
the member ceases to hold the office of judge.
(2) The office of a non-judicial member becomes
15 vacant if the member becomes an insolvent under
administration.
22. Suspension of non-judicial member
(1) The Minister, with the approval of the President,
may suspend a non-judicial member from office,
20 if the Minister believes that there may be grounds
for removal of the member from office.
(2) A member who is suspended under this section
remains entitled to his or her remuneration and
allowances as member during the period of
25 suspension.
23. Investigation of non-judicial member
(1) As soon as practicable after suspending a member
from office under section 22, the Minister must
appoint a person nominated by the President to
30 undertake an investigation into the member's
conduct.
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(2) A person appointed under sub-section (1) must--
(a) investigate the member's conduct; and
(b) report to the Minister on the investigation;
and
5 (c) give a copy of the report to the member and
the President.
(3) A report under sub-section (2)(b) may include a
recommendation that the member be removed
from office.
10 (4) After receiving a report under sub-section (2)(b)
recommending removal, the Minister, after
consulting the President, may recommend to the
Governor in Council that the member be removed
from office.
15 (5) The person who conducted the investigation and
the Minister may only recommend that a member
be removed if satisfied that the member--
(a) has been convicted of an indictable offence
or an offence that, if committed in Victoria,
20 would be an indictable offence; or
(b) has become incapable of performing, or has
neglected to perform, the duties of office; or
(c) is unfit to hold office because of misconduct.
(6) The Minister must not make a recommendation
25 under sub-section (4) unless the member has been
given a reasonable opportunity to make written
and oral submissions to the person who conducted
the investigation and the President.
(7) In making a recommendation under sub-section
30 (4), the Minister is entitled to rely on any findings
contained in the report under sub-section (2).
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(8) If the Minister does not make a recommendation
under sub-section (4) he or she must lift the
suspension as soon as practicable after receiving
the report under sub-section (2)(b).
5 24. Removal of non-judicial member from office
The Governor in Council may remove a non-
judicial member from office on the
recommendation of the Minister under section 23
but not otherwise.
10 25. Validity of proceedings
A decision of the Tribunal is not invalid only
because--
(a) of a vacancy in the office of a member; or
(b) of a defect or irregularity in, or in connection
15 with, the appointment of a member or acting
member; or
(c) in the case of a person appointed to act as
President, a Vice President or a Deputy
President, the occasion for so acting had not
20 arisen or had ceased.
Division 3--Acting Appointments
26. Acting President
(1) If there is a vacancy in the office of President or
the President is absent or, for any other reason, is
25 unable to perform the duties of office, an acting
President may be appointed in accordance with
this section.
(2) The appointment of an acting President may be
made by the Minister, for a term not exceeding
30 3 months, or by the Governor in Council, for a
term not exceeding 6 months.
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(3) Only a Vice President or a judge of the Supreme
Court may be appointed to act as President.
(4) A judge of the Supreme Court may only be
appointed to act as President after the Minister has
5 consulted the Chief Justice.
(5) A person appointed as acting President in
accordance with this section--
(a) has all the powers and must perform all the
duties of the President; and
10 (b) if not a judge of the Supreme Court, is
entitled to be paid the salary and allowances
for the time being payable to a judge of the
Supreme Court (other than the Chief Justice,
the President of the Court of Appeal or a
15 Judge of Appeal); and
(c) may resign the acting appointment by
delivering to the Minister or the Governor,
as the case requires, a signed letter of
resignation; and
20 (d) is eligible for re-appointment (however, a
person appointed as acting President by the
Minister may only be re-appointed by the
Governor in Council).
(6) The Minister or the Governor in Council, as the
25 case requires, may at any time terminate an acting
appointment.
(7) The appointment of a judge of the Supreme Court
or a Vice President as acting President does not
affect his or her tenure of office or status as a
30 judge nor any other rights or privileges that he or
she has as a judge nor, in the case of a judge of the
Supreme Court, the payment of his or her salary
or allowances as a judge.
(8) Service in the office of acting President must be
35 taken for all purposes to be service in the office of
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judge of the Supreme Court or County Court, as
the case requires.
(9) Nothing in this Act prevents a judge of the
Supreme Court or a Vice President appointed as
5 acting President from constituting the Supreme
Court or County Court, as the case requires, for
the purpose of the exercise by that Court of any of
its functions.
27. Acting Vice President
10 (1) If there is a vacancy in the office of a Vice
President or a Vice President is absent or, for any
other reason, is unable to perform the duties of
office, an acting Vice President may be appointed
in accordance with this section.
15 (2) The appointment of an acting Vice President may
be made by the Minister, for a term not exceeding
3 months, or by the Governor in Council, for a
term not exceeding 6 months.
(3) Only a judge of the County Court may be
20 appointed to act as a Vice President.
(4) A judge of the County Court may only be
appointed to act as a Vice President after the
Minister has consulted the Chief Judge.
(5) A person appointed as an acting Vice President in
25 accordance with this section--
(a) has all the powers and must perform all the
duties of the Vice President for whom he or
she is acting; and
(b) may resign the acting appointment by
30 delivering to the Minister or the Governor,
as the case requires, a signed letter of
resignation; and
(c) is eligible for re-appointment (however, a
person appointed as an acting Vice President
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by the Minister may only be re-appointed by
the Governor in Council).
(6) The Minister or the Governor in Council, as the
case requires, may at any time terminate an acting
5 appointment.
(7) The appointment of a judge of the County Court
as an acting Vice President does not affect his or
her tenure of office or status as a judge nor the
payment of his or her salary or allowances as a
10 judge nor any other rights or privileges that he or
she has as a judge.
(8) Service in the office of an acting Vice President
must be taken for all purposes to be service in the
office of judge of the County Court.
15 (9) Nothing in this Act prevents a judge of the County
Court appointed as an acting Vice President from
constituting the County Court for the purpose of
the exercise by the County Court of any of its
functions.
20 28. Acting Deputy President
(1) If there is a vacancy in the office of a Deputy
President or a Deputy President is absent or, for
any other reason, is unable to perform the duties
of office, the President may appoint a senior
25 member of the Tribunal as an acting Deputy
President.
(2) The appointment of an acting Deputy President
cannot exceed 3 months.
(3) A person appointed as an acting Deputy
30 President--
(a) has all the powers and must perform all the
duties of the Deputy President for whom he
or she is acting; and
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(b) may resign the acting appointment by
delivering to the President a signed letter of
resignation; and
(c) is eligible for re-appointment (however, the
5 person cannot be re-appointed within
3 months of the expiry of their term of
appointment as acting Deputy President).
(4) The President may at any time terminate an acting
appointment.
10 29. Additional acting judicial appointments
(1) The Chief Justice may appoint judges of the
Supreme Court to be members of a panel of
judges available for acting appointments under
this section.
15 (2) The Chief Judge may appoint judges of the
County Court to be members of a panel of judges
available for acting appointments under this
section.
(3) If the President considers it desirable for an acting
20 judicial member to be appointed temporarily to
hear and determine any one or more proceedings,
he or she may, with the approval of the Chief
Justice or the Chief Judge, as the case requires,
appoint a judge who is a member of a panel of
25 judges to be an acting member for the purposes of
those proceedings.
(4) An appointment under this section must be in
writing.
(5) A judge appointed as an acting member in
30 accordance with this section--
(a) has all the powers and must perform all the
duties of a member; and
(b) for the purposes of constituting the Tribunal
for a proceeding--
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(i) in the case of a judge of the Supreme
Court--must be treated as if he or she
were the President;
(ii) in the case of a judge of the County
5 Court--must be treated as if he or she
were a Vice President.
(6) The appointment of a judge of the Supreme Court
or County Court as an acting member in
accordance with this section does not affect his or
10 her tenure of office or status as a judge nor the
payment of his or her salary or allowances as a
judge nor any other rights or privileges that he or
she has as a judge.
(7) Service in the office of an acting member in
15 accordance with this section must be taken for all
purposes to be service in the office of judge of the
Supreme Court or County Court, as the case
requires.
(8) Nothing in this Act prevents a judge of the
20 Supreme Court or County Court appointed as an
acting member in accordance with this section
from constituting the Supreme Court or County
Court, as the case requires, for the purpose of the
exercise by that Court of any of its functions.
25 Division 4--Administration
30. Administrative functions of President and Vice
Presidents
(1) Subject to this Act and the rules, the President and
the Vice Presidents are to direct the business of
30 the Tribunal.
(2) The President and the Vice Presidents are
responsible for the management of the
administrative affairs of the Tribunal and for
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directing the professional development and
training of members.
(3) The President and the Vice Presidents may
determine the places and times for sittings of the
5 Tribunal.
(4) In carrying out functions under this section, a
Vice President is subject to the direction of the
President.
31. President to advise Minister
10 It is a function of the President to advise the
Minister with respect to any action that the
President considers would lead to--
(a) the more convenient, economic and efficient
disposal of the business of the Tribunal;
15 (b) the avoidance of delay in the hearing of
proceedings;
(c) this Act or any enabling enactment being
rendered more effective.
32. Appointment of registrars and other staff
20 (1) To assist in the administration of the Tribunal
there are to be appointed or employed under the
Public Sector Management Act 1992--
(a) a principal registrar; and
(b) a chief executive officer; and
25 (c) as many registrars and other staff as are
necessary.
(2) The principal registrar--
(a) has the functions conferred by or under this
or any other Act and the rules; and
30 (b) in carrying out those functions, is subject to
the direction of the President.
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(3) A registrar other than the principal registrar has,
subject to the direction of the principal registrar,
all the functions of the principal registrar.
33. Delegation by President and Vice Presidents
5 (1) The President may delegate to any member or
class of members or to the principal registrar any
function of the President under this Act, the rules
or an enabling enactment, other than this power of
delegation.
10 (2) A Vice President may delegate to any member or
class of members or to the principal registrar any
function of the Vice President under this Act, the
rules or an enabling enactment, other than this
power of delegation.
15 (3) A delegation under this section must be in writing.
34. Secrecy
(1) This section applies to any person who is or has
been--
(a) a member of the Tribunal;
20 (b) a registrar or other member of staff of the
Tribunal;
(c) a person acting under the authority of the
Tribunal.
(2) Except as permitted by this section, a person to
25 whom this section applies must not directly or
indirectly make a record of, or disclose to any
person, any information about the affairs of a
person acquired in the performance of functions
under or in connection with this Act or an
30 enabling enactment.
Penalty: 60 penalty units.
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(3) A person to whom this section applies may record
or disclose information referred to in sub-section
(2)--
(a) with the written consent of the person to
5 whom the information relates; or
(b) in connection with the performance of
functions under this Act or an enabling
enactment.
(4) A person to whom this section applies may
10 disclose any information referred to in sub-section
(2) to a member of the police force for the
purposes of reporting a suspected offence or
assisting in the investigation of a suspected
offence.
15 (5) A person to whom this section applies may
disclose any information referred to in sub-section
(2) for statistical purposes to a person approved by
the Minister provided that the information does
not identify any person to whom it relates.
(6) Nothing in this section1 applies to the recording or
20
disclosure of--
(a) anything said or done at a hearing of the
Tribunal (other than at a hearing that the
Tribunal has directed to be held in private);
25 or
(b) any decision or order of the Tribunal or the
reasons for any such decision or order.
35. Prohibition on secondary disclosures
(1) A person to whom information referred to in
30 section 34(2) is disclosed, and any employee of
that person, is subject to the same obligations and
liabilities with respect to the recording or
disclosure of the information as they would be if
they were a person referred to in section 34(1)
35 who had acquired the information in the
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performance of functions under this Act or an
enabling enactment.
(2) Sub-section (1) does not apply to a member of the
police force to whom information is disclosed
5 under section 34(4).
36. Further restriction on disclosure
(1) Subject to this section--
(a) a person referred to in section 34(1) is not,
except for the purposes of this Act or an
10 enabling enactment, required--
(i) to produce in a court any document that
has come into his or her possession; or
(ii) to disclose to a court any information
that has come to his or her notice--
15 in the performance of functions under or in
connection with this Act or an enabling
enactment; and
(b) a person referred to in section 35 is not,
except for the purposes of this Act or an
20 enabling enactment, required--
(i) to produce in a court any document that
has come into his or her possession; or
(ii) to disclose to a court any information
that has come to his or her notice--
25 as a result of a disclosure to that person
under section 34.
(2) If--
(a) the Minister certifies that it is necessary in
the public interest that specified information
30 should be disclosed to a court; or
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(b) the person to whom information relates has
given written consent for it to be disclosed to
a court--
a person referred to in sub-section (1) may be
5 required to disclose the relevant information or
produce the relevant document to the court.
(3) A person referred to in sub-section (1) may be
required--
(a) to produce in a court a document that has
10 come into his or her possession; or
(b) to disclose to a court any information that
has come to his or her notice--
in any proceeding for an indictable offence,
including a committal proceeding and a summary
15 hearing of an indictable offence.
(4) In this section--
"court" includes a tribunal and any person who
has power to require the production of
documents or the answering of questions.
20 37. Annual report
(1) As soon as practicable in each year but not later
than 30 September, the Tribunal must submit to
the Minister a report containing--
(a) a review of the operation of the Tribunal and
25 of the Rules Committee during the 12
months ending on the preceding 30 June; and
(b) proposals for improving the operation of,
and forecasts of the workload of, the
Tribunal in the following 12 month period.
30 (2) The Minister must cause each report under sub-
section (1) to be laid before each House of the
Parliament within 14 sitting days of that House
after it is received by the Minister.
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38. Where may the Tribunal sit?
The Tribunal may sit at any place in Victoria.
_______________
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PART 3--THE TRIBUNAL--JURISDICTION AND
FUNCTIONS
Division 1--Introductory
39. Structure of Part
5 (1) This Part sets out the general jurisdiction and
functions of the Tribunal.
(2) Schedule 1 sets out variations from this Part for
certain types of proceedings2.
40. Jurisdiction of the Tribunal
10 The Tribunal has 2 types of jurisdiction--
(a) original jurisdiction; and
(b) review jurisdiction.
41. What is original jurisdiction?
Original jurisdiction is the jurisdiction of the
Tribunal other than its review jurisdiction3.
15
42. What is review jurisdiction?
(1) Review jurisdiction is jurisdiction conferred on
the Tribunal by or under an enabling enactment to
review a decision made by a decision-maker.
20 (2) For the avoidance of doubt, the Tribunal's
jurisdiction under section 61 of the Guardianship
and Administration Act 1986 is original
jurisdiction, not review jurisdiction.
Division 2--Original jurisdiction
25 43. How is original jurisdiction invoked?
The original jurisdiction of the Tribunal is
invoked--
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(a) by a person who is entitled by or under an
enabling enactment to do so applying to the
Tribunal in accordance with section 67; or
(b) by a matter being referred to the Tribunal
5 under an enabling enactment in accordance
with section 69; or
(c) in any other way permitted or provided for
by the enabling enactment.
44. Functions of the Tribunal
10 In exercising its original jurisdiction, the Tribunal
has the functions conferred on it by or under the
enabling enactment, as well as any functions
conferred on it by or under this Act, the
regulations and the rules.
15 Division 3--Review jurisdiction
Subdivision 1--Obtaining reasons for decisions
45. Request for statement of reasons for decision
(1) A person who is entitled to apply to the Tribunal
for review of a decision, or to have a decision
20 referred to the Tribunal for review, may request
the decision-maker to give the person a written
statement of reasons for the decision.
(2) A request under sub-section (1) must be made in
writing within 28 days after the day on which the
25 decision was made.
46. Decision-maker to give statement of reasons on
request
(1) A decision-maker must give a written statement of
reasons for a decision to a person as soon as
30 practical, and in any event within 28 days or such
other period as is specified in the enabling
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enactment, after receiving a request under
section 45.
(2) Subject to this Act, the statement must set out--
(a) the reasons for the decision; and
5 (b) the findings on material questions of fact that
led to the decision, referring to the evidence
or other material on which those findings
were based.
(3) A statement of reasons need not be given under
10 this section if the decision-maker has already
given a written statement containing the matters
referred to in sub-section (2) to the person
(whether as part of the decision or separately).
(4) A statement of reasons--
15 (a) must not include any information or matter
to which a certificate under section 53
(Premier's certificate) applies; and
(b) subject to section 47, must not include any
information or matter to which a certificate
20 under section 54 (Attorney-General's
certificate) applies.
(5) If a statement of reasons would be false or
misleading if it did not include information or
matter referred to in sub-section (4), the decision-
25 maker must inform the person who requested the
statement of that fact and must not give the
statement to the person.
(6) Sub-section (2)(b) does not apply to a decision
made by the Business Licensing Authority.
30 (7) A written statement of reasons for a decision by
the Business Licensing Authority complies with
sub-section (2)(a) if it sets out the statutory
ground on which the decision is based.
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47. The Tribunal may order statement of reasons to be
given
(1) If a statement of reasons is not given to a person
in accordance with section 46, the person who
5 requested the statement may apply to the Tribunal,
in accordance with the rules, for an order that a
statement of reasons be given to the person.
(2) The applicant must give notice of an application
under sub-section (1) to the decision-maker to
10 whom the request for a statement of reasons was
made.
(3) On an application under sub-section (1), if the
Tribunal is satisfied that the applicant is entitled
to receive a statement of reasons, the Tribunal
15 may order that the decision-maker give a
statement of reasons to the applicant within the
time specified in the order.
(4) The Tribunal must not order--
(a) that a statement of reasons include any
20 information or matter to which a certificate
under section 53 (Premier's certificate)
applies; or
(b) that a statement of reasons be given to the
applicant that is false or misleading because
25 it does not contain information or matter
referred to in section 46(4).
(5) The Tribunal may order that a statement of
reasons include information or matter to which a
certificate under section 54 (Attorney-General's
30 certificate) applies if the Tribunal considers it
would not be contrary to the public interest to do
so.
(6) The Tribunal's power to make an order under sub-
section (5) is exercisable only by the President.
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(7) For the purposes of this Act, the question whether
or not the inclusion of information or matter in a
statement of reasons would be contrary to the
public interest is a question of law.
5 Subdivision 2--Jurisdiction of the Tribunal
48. How is review jurisdiction invoked?
The review jurisdiction of the Tribunal is
invoked--
(a) by a person who is entitled to do so by or
10 under an enabling enactment applying to the
Tribunal in accordance with section 67 for
review of a decision under that enactment; or
(b) by a decision-maker referring a decision to
the Tribunal under an enabling enactment in
15 accordance with section 69 for review of the
decision; or
(c) in any other way permitted or provided for
by the enabling enactment.
49. Decision-maker must lodge material
20 (1) If a proceeding is commenced for review of a
decision, the decision-maker must lodge with the
Tribunal as many copies as the rules require of--
(a) the statement of reasons given by the
decision-maker under section 46(1) or, if no
25 such statement has been given, a statement
containing the matters set out in section
46(2) or, in the case of the Business
Licensing Authority, section 46(2)(a); and
(b) every other document in the decision-
30 maker's possession that the decision-maker
considers is relevant to the review of the
decision.
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(2) Copies must be lodged under sub-section (1)
within 28 days after--
(a) the day on which the decision-maker
received notice of the application to the
5 Tribunal; or
(b) the day on which the decision-maker referred
the decision to the Tribunal--
as the case requires.
(3) If the Tribunal considers that there are further
10 documents in the possession of the decision-
maker that may be relevant to the review, the
Tribunal may give written notice to the decision-
maker requiring the decision-maker to lodge the
number of copies of those documents required by
15 the rules with the Tribunal within the time
specified in the notice.
(4) If the Tribunal considers that a statement lodged
under sub-section (1)(a) is not adequate, the
Tribunal may order the decision-maker to lodge
20 the number of copies required by the rules of an
additional statement containing the further
particulars specified in the order within the time
specified in the order.
(5) This section applies despite any rule of law
25 relating to privilege or the public interest in
relation to the production of documents4.
50. Effect of original decision pending review
(1) Subject to sub-section (2), the commencement of
a proceeding for review of a decision does not
30 affect the operation of the decision or prevent the
taking of action to implement the decision.
(2) Sub-section (1) does not apply--
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(a) if the enabling enactment provides
otherwise; or
(b) if the Tribunal makes an order under sub-
section (3).
5 (3) The Tribunal may make an order staying the
operation of a decision that is the subject of a
proceeding for review.
(4) The Tribunal may make an order under sub-
section (3)--
10 (a) on application by any party or on its own
initiative;
(b) whether or not it has given any person whose
interests may be affected by the order an
opportunity to be heard.
15 (5) In making an order under sub-section (3), the
Tribunal--
(a) may require any undertaking as to costs or
damages that it considers appropriate; and
(b) may make provision for the lifting of the
20 order if specified conditions are met.
(6) The Tribunal may assess any costs or damages
referred to in sub-section (5)(a).
(7) The Tribunal's power to make an order under sub-
section (3) is exercisable by the presiding
25 member.
51. Functions of Tribunal on review
(1) In exercising its review jurisdiction in respect of a
decision, the Tribunal--
(a) has all the functions of the decision-maker;
30 and
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(b) has any other functions conferred on the
Tribunal by or under the enabling enactment;
and
(c) has any functions conferred on the Tribunal
5 by or under this Act, the regulations and the
rules.
(2) In determining a proceeding for review of a
decision the Tribunal may, by order--
(a) affirm the decision under review; or
10 (b) vary the decision under review; or
(c) set aside the decision under review and make
another decision in substitution for it; or
(d) set aside the decision under review and remit
the matter for re-consideration by the
15 decision-maker in accordance with any
directions or recommendations of the
Tribunal.
(3) Subject to sub-section (4), a decision of a
decision-maker as affirmed or varied by the
20 Tribunal, or a decision made by the Tribunal in
substitution for the decision of a decision-
maker--
(a) is deemed to be a decision of that decision-
maker; and
25 (b) subject to any contrary order by the Tribunal,
has, or is deemed to have had, effect from
the time at which the decision under review
has or had effect.
(4) Sub-section (3)(a) does not apply for the purposes
30 of--
(a) an application to the Tribunal for review of
the decision; or
(b) an appeal under Part 5.
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(5) If an applicant does not appear (personally or by
representative) at the hearing of a proceeding for
review of a decision, the Tribunal must confirm
the decision.
5 52. Limitation of courts' jurisdiction in planning matters
(1) The Supreme Court, the County Court or the
Magistrates' Court does not have jurisdiction to
hear, or continue to hear, or determine any
proceeding in which a person bringing the
10 proceeding brings in issue the matter of the
exercise of, or the failure to exercise, a power
under a planning enactment if--
(a) the Tribunal has jurisdiction to review the
matter of the exercise of, or the failure to
15 exercise, that power; and
(b) the matter--
(i) has not been the subject of a proceeding
in the Tribunal; or
(ii) if it has been the subject of a
20 proceeding in the Tribunal, has not
been determined by the Tribunal; or
(iii) if it has been determined by the
Tribunal, the time for appeal against an
order of the Tribunal in the proceeding
25 has not expired; or
(iv) if an appeal has been brought against an
order in the proceeding, the appeal has
not been determined.
(2) If the Supreme Court, the County Court or the
30 Magistrates' Court is of the opinion that there are
special circumstances that justify the hearing by
the Court of a proceeding to which sub-section (1)
applies, the court may direct that sub-section (1)
does not apply to that proceeding.
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(3) If a court determines a proceeding to which sub-
section (1) applies but does not give a direction
under sub-section (2), nothing in this section
invalidates the decision of the court.
5 (4) In this section--
"planning enactment" means--
(a) Catchment and Land Protection Act
1994;
(b) Environment Protection Act 1970;
10 (c) Extractive Industries Development
Act 1995;
(d) section 41 of the Flora and Fauna
Guarantee Act 1988;
(e) section 185 of the Local Government
15 Act 1989;
(f) Planning and Environment Act 1987
(except sections 94(5) and 105);
(g) Subdivision Act 1988 (except sections
38 and 39);
20 (h) section 56 of the Transport Act 1983
and regulations made under that
section;
(i) Water Act 1989 (except section 19).
Subdivision 3--Matters of privilege and policy
25 53. Cabinet documents
(1) The Premier may certify in writing that the
disclosure of information about a specified matter,
or the disclosure of any matter contained in a
document, would be contrary to the public interest
30 because it would involve the disclosure of
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deliberations of the Cabinet or a committee of the
Cabinet.
(2) The Tribunal must ensure that--
(a) information or a document to which a
5 certificate under sub-section (1) applies that
is lodged with or produced or given to the
Tribunal in a proceeding for review of a
decision is not disclosed to any person other
than a member of the Tribunal as constituted
10 for the purposes of the proceeding in which
it was lodged, produced or given; and
(b) a document to which a certificate under sub-
section (1) applies that is lodged with or
produced or given to the Tribunal in a
15 proceeding for review of a decision is
returned to the person by whom it was
lodged, produced or given when no longer
required by the Tribunal.
54. Crown privilege
20 (1) The Attorney-General may certify in writing that
the disclosure of information about a specified
matter, or the disclosure of any matter contained
in a document, would be contrary to the public
interest for a reason specified in the certificate that
25 could form the basis for a claim by the State in a
proceeding in the Supreme Court that the
information or matter should not be disclosed.
(2) The Tribunal must ensure that--
(a) subject to sub-section (3), information or a
30 document to which a certificate under sub-
section (1) applies that is lodged with or
produced or given to the Tribunal in a
proceeding for review of a decision is not
disclosed to any person other than a member
35 of the Tribunal as constituted for the
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purposes of the proceeding in which it was
lodged, produced or given; and
(b) a document to which a certificate under sub-
section (1) applies that is lodged with or
5 produced or given to the Tribunal in a
proceeding for review of a decision is
returned to the person by whom it was
lodged, produced or given when no longer
required by the Tribunal.
10 (3) The Tribunal, with the consent of the President,
may allow a party, or a representative of a party,
to have access to, or inspect, information or a
document to which a certificate under sub-section
(1) applies, on any conditions the Tribunal thinks
15 fit.
55. Certain questions not required to be answered
(1) Subject to this section, a person is not required to
answer a question put to him or her in the course
of giving evidence before the Tribunal in a
20 proceeding for review of a decision if to do so
would involve the disclosure of any information
or matter to which a certificate under section 53
(Premier's certificate) or 54 (Attorney-General's
certificate) applies.
25 (2) The Tribunal may order that a person answer a
question that would involve the disclosure of any
information or matter to which a certificate under
section 54 (Attorney-General's certificate) applies
if the Tribunal considers it would not be contrary
30 to the public interest for the person to answer the
question.
(3) The Tribunal's power to make an order under sub-
section (2) is exercisable only by the President.
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(4) For the purposes of this Act, the question whether
or not the answering of a question would be
contrary to the public interest is a question of law.
56. Exclusion of general rules of public interest
5 Except to the extent set out in this Act, the rules of
law relating to the public interest in relation to the
disclosure of information or of matter contained in
a document in legal proceedings are excluded in
any proceeding for review.
10 57. Application of statements of policy
(1) The relevant Minister may certify in writing that
there was, at the time a decision the subject of a
proceeding for review was made, a statement of
policy applying to decisions of that kind.
15 (2) If a certificate is given under sub-section (1), the
Tribunal in conducting the proceeding must apply
the statement of policy if--
(a) the Tribunal is satisfied that, at the time the
decision was made--
20 (i) the applicant was aware of the
statement of policy; or
(ii) persons entitled to apply for review of a
decision under the enabling enactment
could reasonably have been expected to
25 be aware of the statement of policy; or
(iii) the statement of policy had been
published in the Government Gazette;
and
(b) the decision-maker states in the material
30 lodged with the Tribunal under section 49
that the decision-maker relied on the
statement of policy in making the decision.
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(3) Sub-section (2) does not apply to the extent that
the statement of policy is outside power.
(4) In this section--
"relevant Minister" means the Minister
5 administering the enactment under which the
decision the subject of the proceeding for
review was made.
_______________
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PART 4--THE TRIBUNAL--GENERAL PROCEDURE
Division 1--Introduction
58. Structure of Part
(1) This Part sets out the general procedure of the
5 Tribunal.
(2) Schedule 1 sets out variations from the general
procedure for certain types of proceedings.
Division 2--Parties
59. Who are the parties to a proceeding?
10 (1) The parties to a proceeding are--
(a) in a proceeding in the Tribunal's original
jurisdiction--
(i) the person who applies to the Tribunal,
or who requests or requires a matter to
15 be referred to the Tribunal; and
(ii) in the case of an inquiry by the
Tribunal, the person who is the subject
of the inquiry; and
(iii) any person joined as a party to the
20 proceeding by the Tribunal; and
(iv) any other person specified by or under
this Act or the enabling enactment as a
party;
(b) in a proceeding in the Tribunal's review
25 jurisdiction--
(i) the person who applies to the Tribunal
for review of a decision, or who
requests or requires a decision to be
referred to the Tribunal for review; and
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(ii) the decision-maker who made the
decision; and
(iii) any person joined as a party to the
proceeding by the Tribunal; and
5 (iv) any other person specified by or under
this Act or the enabling enactment as a
party.
(2) A decision-maker who made a decision by reason
of holding or performing the duties of an office or
10 appointment or a position in the public service is
to be described in any proceeding in respect of the
decision by the decision-maker's official name.
60. Joinder of parties
(1) The Tribunal may order that a person be joined as
15 a party to a proceeding if the Tribunal considers
that--
(a) the person ought to be bound by, or have the
benefit of, an order of the Tribunal in the
proceeding; or
20 (b) the person's interests are affected by the
proceeding; or
(c) for any other reason it is desirable that the
person be joined as a party.
(2) The Tribunal may make an order under sub-
25 section (1) on its own initiative or on the
application of any person.
61. Unincorporated associations
(1) An unincorporated association cannot be a party
to a proceeding.
30 (2) If the Tribunal permits, a submission may be
made on behalf of an unincorporated association
on any relevant matter in a proceeding by--
(a) a member of the association; or
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(b) a person authorised by the association who is
not a member.
(3) The Tribunal may require a person referred to in
sub-section (2)(b) who seeks to make a
5 submission to produce a certificate of
authorisation from the unincorporated association
signed by the president, secretary or other similar
officer of the association.
62. Representation of parties
10 (1) In any proceeding a party--
(a) may appear personally; or
(b) may be represented by a professional
advocate if--
(i) the party is a person referred to in sub-
15 section (2); or
(ii) another party to the proceeding is a
professional advocate; or
(iii) another party to the proceeding who is
permitted under this section to be
20 represented by a professional advocate
is so represented; or
(iv) all the parties to the proceeding agree;
or
(c) may be represented by any person (including
25 a professional advocate) permitted or
specified by the Tribunal.
(2) The following persons may be represented by a
professional advocate in a proceeding--
(a) a child;
30 (b) a municipal council;
(c) the State or a Minister or other person who
represents the State;
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(d) a public authority within the meaning of the
Public Sector Management Act 1992;
(e) the holder of a statutory office within the
meaning of the Public Sector Management
5 Act 1992;
(f) a credit provider within the meaning of the
Consumer Credit (Victoria) Code or the
Credit Act 1984;
(g) an insurer within the meaning of the
10 Domestic Building Contracts Act 1995.
(3) A party that is a body corporate may be
represented in a proceeding by a director,
secretary or other officer except, in the case of a
body corporate that is not referred to in sub-
15 section (2), a director, secretary or officer who is a
professional advocate.
(4) Despite sub-section (3), if all officers of a body
corporate are professional advocates, one of those
officers may represent the body corporate in a
20 proceeding.
(5) If a party is a child, the Tribunal may appoint a
litigation guardian, in accordance with the rules,
to conduct the proceeding on behalf of the child.
(6) If a party is unrepresented in a proceeding, the
25 Tribunal may appoint a person (whether or not a
professional advocate) to represent that party.
(7) If a person who is not a professional advocate
seeks to represent a party in a proceeding--
(a) if the party is a body corporate, the person
30 must give the Tribunal a certificate of
authority for the representation from the
body corporate; or
(b) in any other case, the Tribunal may require
the person to produce a certificate of
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authority for the representation from the
party.
(8) In this section--
"professional advocate" means--
5 (a) a person who is or has been a legal
practitioner; or
(b) a person who is or has been an articled
clerk or law clerk in Australia; or
(c) a person who holds a degree, diploma
10 or other qualification in law granted or
conferred in Australia; or
(d) a person who, in the opinion of the
Tribunal, has had substantial
experience as an advocate in
15 proceedings of a similar nature to the
proceeding before the Tribunal--
other than a person who is in a class of
persons disqualified by the rules from being
a professional advocate.
20 (9) Rules for the purposes of sub-section (8) may only
disqualify a class of persons from being
professional advocates on the basis that persons in
that class--
(a) have been the subject of disciplinary
25 proceedings under the law of Victoria,
another State, a Territory or the
Commonwealth or under the rules of a
professional or occupational association or
other body; and
30 (b) have been found guilty in those proceedings
of professional misconduct (by whatever
name called) or of another breach of
professional or occupational standards.
63. Interpreters
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Unless the Tribunal directs otherwise, a party may
be assisted in a proceeding by an interpreter or
another person necessary or desirable to make the
proceeding intelligible to that party.
5 Division 3--Constitution of Tribunal
64. Constitution of Tribunal in proceedings
(1) Subject to the rules, the Tribunal is to be
constituted for the purposes of any particular
proceeding by 1, 2, 3, 4 or 5 members.
10 (2) If the Tribunal is to be constituted at a
proceeding--
(a) by one member only, that member must be a
legal practitioner; and
(b) by more than one member, at least one must
15 be a legal practitioner.
(3) The President determines how the Tribunal is to
be constituted for the purposes of each
proceeding.
65. Who presides in a proceeding?
20 At a proceeding at which the Tribunal is
constituted by more than one member--
(a) if the President is a member, the President
presides;
(b) if the President is not a member but a Vice
25 President is, the Vice President presides or,
if there is more than one, then the Vice
President nominated by the President for this
purpose presides;
(c) if neither the President nor a Vice President
30 is a member but a Deputy President is, the
Deputy President presides or, if there is more
than one, then the Deputy President
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nominated by the President for this purpose
presides;
(d) if neither the President nor a Vice President
nor a Deputy President is a member but a
5 senior member is, the senior member
presides or, if there is more than one, then
the senior member nominated by the
President for this purpose presides;
(e) if the members are all ordinary members,
10 then the member nominated by the President
for this purpose presides.
66. Opinions equally divided
If for the purposes of any particular proceeding
the Tribunal is constituted by 2 or 4 members and
15 the opinions of those members on a question
before them are equally divided, the question must
be decided according to the opinion of the
presiding member.
Division 4--Preliminary procedure
20 67. How to make an application to the Tribunal
(1) An application to the Tribunal--
(a) must be in the form, and contain the
particulars, required by the rules; and
(b) must be accompanied by any documents or
25 further information required by the rules; and
(c) must be lodged in the manner specified in
the rules.
(2) The rules may require an application to be verified
by statutory declaration or in any other manner.
30 (3) Two or more persons entitled to make an
application to the Tribunal may make a joint
application.
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(4) The principal registrar must give reasonable
assistance on request to a person in formulating an
application.
68. Application fee
5 (1) An applicant must pay the prescribed fee (if any)
for the application.
(2) The principal registrar may determine the fee
payable for a joint application as if a separate
application had been made by each person who
10 makes the joint application.
(3) If the fee is not paid at the time the application is
lodged, the application is deemed not to have been
lodged until--
(a) the fee is paid; or
15 (b) the fee is waived under section 132; or
(c) if the fee is reduced under section 132, the
reduced fee is paid.
(4) If an applicant requests the waiver or reduction of
a fee in respect of an application, any limitation
20 period for bringing that application is suspended
from the time of the request until the request is
determined.
69. Procedure where a matter is referred to the Tribunal
If an enabling enactment provides for a matter to
25 be referred to the Tribunal, the referral is to be
made in accordance with the enabling enactment
and the rules.
70. Referral fee
(1) If a matter is referred to the Tribunal, the
30 applicant must pay the prescribed fee (if any) for
the referral.
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(2) The Tribunal may refuse to continue with a
proceeding on a referral if a fee payable for the
referral has not been paid.
71. Principal registrar or the Tribunal may reject certain
5 applications
(1) Unless otherwise provided for in the rules, the
principal registrar may reject an application that--
(a) is made by a person not entitled to make it;
or
10 (b) is lodged after the expiry of the period
specified in the enabling enactment; or
(c) does not otherwise comply with this Act, the
regulations or the rules.
(2) If the principal registrar rejects an application, the
15 applicant may require the principal registrar to
refer the application to the Tribunal for review of
the rejection.
(3) If the principal registrar rejects an application, he
or she must inform the applicant of the right of
20 referral under sub-section (2).
(4) No fee is payable for a referral under sub-
section (2).
(5) On a referral under sub-section (2), the Tribunal
must review the rejection and may--
25 (a) confirm the rejection; or
(b) order the principal registrar to accept the
application.
(6) Instead of rejecting an application under sub-
section (1), the principal registrar may refer it to
30 the Tribunal.
(7) On a referral under sub-section (6), the Tribunal
may order that the application be rejected if it is
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an application referred to in sub-section (1)(a), (b)
or (c).
(8) Nothing in Division 3 of Part 3 applies to a review
under sub-section (2).
5 72. Notification of commencement
(1) An applicant must serve a copy of an application
or referral, within the time specified by the
rules--
(a) on each other party; and
10 (b) on any other person entitled to notice of the
application under this Act, the enabling
enactment or the rules; and
(c) on any person that the Tribunal directs be
given notice of the proceeding.
15 (2) Sub-section (1) does not apply if--
(a) the principal registrar undertakes service on
behalf of the applicant; or
(b) a presidential member makes an order under
sub-section (3).
20 (3) A presidential member may make an order that
service under sub-section (1) be dispensed with if
he or she is satisfied--
(a) that the applicant has made all reasonable
attempts to serve a person, but has been
25 unsuccessful; or
(b) that the making and hearing of an application
or referral without notice to a person would
not cause injustice.
(4) An order under sub-section (3) may be made on
30 the application of the applicant or at the
presidential member's own initiative.
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73. Intervention
(1) The Attorney-General may intervene on behalf of
the State in a proceeding at any time.
(2) The Director may intervene at any time in a
5 proceeding under an enabling enactment that is
administered by the Minister administering the
Fair Trading Act 1985.
(3) The Tribunal may give leave at any time for a
person to intervene in a proceeding subject to any
10 conditions the Tribunal thinks fit.
74. Withdrawal of proceedings
(1) If the Tribunal gives leave, an applicant may
withdraw an application or referral before it is
determined by the Tribunal.
15 (2) If an applicant withdraws an application or
referral--
(a) the applicant must notify all other parties in
writing of the withdrawal; and
(b) the Tribunal may make an order that the
20 applicant pay all, or any part of, the costs of
the other parties to the proceeding; and
(c) the principal registrar may refund any
application fee paid by the applicant; and
(d) the applicant cannot make a further
25 application or request or require a further
referral in relation to the same facts and
circumstances without the leave of the
Tribunal.
(3) Sub-section (2)(a) does not apply if the principal
30 registrar notifies the other parties in writing on
behalf of the applicant.
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75. Summary dismissal of unjustified proceedings
(1) At any time, the Tribunal may make an order
summarily dismissing or striking out all, or any
part, of a proceeding that, in its opinion--
5 (a) is frivolous, vexatious, misconceived or
lacking in substance; or
(b) is otherwise an abuse of process.
(2) If the Tribunal makes an order under sub-section
(1), it may order the applicant to pay any other
10 party an amount to compensate that party for any
costs, expenses, loss, inconvenience and
embarrassment resulting from the proceeding.
(3) The Tribunal's power to make an order under sub-
section (1) or (2) is exercisable by--
15 (a) the Tribunal as constituted for the
proceeding; or
(b) a presidential member.
(4) An order under sub-section (1) or (2) may be
made on the application of a party or on the
20 Tribunal's own initiative.
(5) For the purposes of this Act, the question whether
or not an application is frivolous, vexatious,
misconceived or lacking in substance or is
otherwise an abuse of process is a question of law.
25 76. Summary dismissal for want of prosecution
(1) At any time, the Tribunal may make an order
summarily dismissing or striking out all, or any
part, of a proceeding for want of prosecution.
(2) The Tribunal's power to dismiss or strike out a
30 proceeding under this section is exercisable by--
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(a) the Tribunal as constituted for the
proceeding; or
(b) a presidential member.
(3) An order under sub-section (1) may be made on
5 the application of a party or on the Tribunal's own
initiative.
77. More appropriate forum
(1) At any time, the Tribunal may make an order
striking out all, or any part, of a proceeding (other
10 than a proceeding for review of a decision) if it
considers that the subject-matter of the proceeding
would be more appropriately dealt with by a
tribunal (other than the Tribunal), a court or any
other person or body.
15 (2) The Tribunal's power to make an order under sub-
section (1) is exercisable only by a judicial
member.
(3) If the Tribunal makes an order under sub-section
(1), it may refer the matter to the relevant tribunal,
20 court, person or body if it considers it appropriate
to do so.
(4) An order under sub-section (1) may be made on
the application of a party or on the Tribunal's own
initiative.
25 78. Conduct of proceeding causing disadvantage
(1) This section applies if the Tribunal believes that a
party to a proceeding is conducting the proceeding
in a way that unnecessarily disadvantages another
party to the proceeding by conduct such as--
30 (a) failing to comply with an order or direction
of the Tribunal without reasonable excuse; or
(b) failing to comply with this Act, the
regulations, the rules or an enabling
enactment; or
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(c) asking for an adjournment as a result of (a)
or (b); or
(d) causing an adjournment; or
(e) attempting to deceive another party or the
5 Tribunal; or
(f) vexatiously conducting the proceeding.
(2) If this section applies, the Tribunal may--
(a) order that the proceeding be dismissed or
struck out, if the party causing the
10 disadvantage is the applicant; or
(b) if the party causing the disadvantage is not
the applicant--
(i) determine the proceeding in favour of
the applicant and make any appropriate
15 orders; or
(ii) order that the party causing the
disadvantage be struck out of the
proceeding;
(c) make an order for costs under section 109.
20 (3) The Tribunal's powers under this section are
exercisable by the presiding member.
79. Security for costs
(1) On the application of a party to a proceeding, the
Tribunal may order at any time--
25 (a) that another party give security for that
party's costs within the time specified in the
order; and
(b) that the proceeding as against that party be
stayed until the security is given.
30 (2) If security for costs is not given within the time
specified in the order, the Tribunal may make an
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order dismissing the proceeding as against the
party that applied for the security.
(3) The Tribunal's power to make an order under this
section in a proceeding is exercisable by--
5 (a) the presiding member; or
(b) a presidential member.
80. Directions
(1) The Tribunal may give directions at any time in a
proceeding and do whatever is necessary for the
10 expeditious or fair hearing and determination of a
proceeding.
(2) The Tribunal's power to give directions is
exercisable by any member.
(3) The Tribunal may give directions under this
15 section requiring a party to produce a document or
provide information in a proceeding for review of
a decision despite anything to the contrary in
section 106(1) or any rule of law relating to
privilege or the public interest in relation to the
20 production of documents.
81. Obtaining information from third parties
(1) On the application of a party to a proceeding, the
Tribunal may order that a person--
(a) who is not a party to the proceeding; and
25 (b) who has, or is likely to have, in the person's
possession a document that is relevant to the
proceeding--
produce the document to the Tribunal or the party
within the time specified in the order.
30 (2) The Tribunal's power to make an order under sub-
section (1) is exercisable by any member
82. Consolidation of proceedings
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(1) The Tribunal may direct that 2 or more
applications or referrals that concern the same or
related facts and circumstances--
(a) be consolidated into the one proceeding; or
5 (b) remain as separate proceedings but be heard
and determined together.
(2) The Tribunal's power to give a direction under
sub-section (1)(a) is exercisable by a presidential
member.
10 (3) The Tribunal's power to give a direction under
sub-section (1)(b) is exercisable by any member.
(4) If applications or referrals are consolidated,
evidence given in the proceeding is admissible in
relation to all applications or referrals
15 consolidated into that proceeding.
Division 5--Compulsory conferences, mediation and
settlement
83. Compulsory conferences
(1) The Tribunal or the principal registrar may require
20 the parties to a proceeding to attend one or more
compulsory conferences before a member of the
Tribunal or the principal registrar before the
proceeding is heard by the Tribunal.
(2) The functions of a compulsory conference are--
25 (a) to identify and clarify the nature of the issues
in dispute in the proceeding;
(b) to promote a settlement of the proceeding;
(c) to identify the questions of fact and law to be
decided by the Tribunal;
30 (d) to allow directions to be given concerning
the conduct of the proceeding.
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(3) Notice of a compulsory conference must be given
to each party in accordance with the rules.
(4) Unless the person presiding otherwise directs, a
compulsory conference must be held in private.
5 (5) Subject to this Act and the rules, the procedure for
a compulsory conference is at the discretion of the
person presiding.
84. Tribunal may require personal attendance at
compulsory conference
10 The Tribunal or the principal registrar may require
a party to attend a compulsory conference
personally or by a representative who has
authority to settle the proceeding on behalf of the
party.
15 85. Evidence inadmissible
Evidence of anything said or done in the course of
a compulsory conference is not admissible in any
hearing before the Tribunal in the proceeding,
except--
20 (a) where all parties agree to the giving of the
evidence; or
(b) evidence of directions given at a compulsory
conference or the reasons for those
directions; or
25 (c) evidence of anything said or done that is
relevant to--
(i) a proceeding for an offence in relation
to the giving of false or misleading
information; or
30 (ii) a proceeding under section 137
(contempt); or
(iii) a proceeding in relation to an order
made under section 87(b)(i).
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86. Party may object to member hearing the proceeding
(1) A party to a proceeding who attended or was
represented at a compulsory conference may
object to the member who presided constituting
5 the Tribunal (whether with or without others) for
the purpose of hearing the proceeding.
(2) The objection must be made to the Tribunal
before or at the commencement of the hearing.
(3) If an objection is made, the member must take no
10 further part in the hearing and, if necessary, the
Tribunal must be reconstituted.
87. What happens if a party fails to attend a compulsory
conference?
If a party does not attend a properly convened
15 compulsory conference--
(a) the conference may proceed at the appointed
time in the party's absence; and
(b) if a member of the Tribunal is presiding and
all the parties present agree, the Tribunal,
20 constituted by that member, may--
(i) determine the proceeding adversely to
the absent party and make any
appropriate orders; or
(ii) direct that the absent party be struck out
25 of the proceeding.
88. Mediation
(1) The Tribunal or the principal registrar may refer a
proceeding or any part of it for mediation by a
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person nominated by the Tribunal or principal
registrar (as the case requires).
(2) A referral may be made under sub-section (1) with
or without the consent of the parties.
5 (3) The principal registrar must give notice of the
mediation to each party in accordance with the
rules.
(4) A party must pay the prescribed fee (if any) for
mediation, whether or not the party consented to
10 the referral for mediation.
(5) The Tribunal may refuse to continue with a
proceeding if a fee payable for mediation has not
been paid.
(6) If a member of the Tribunal is a mediator in a
15 proceeding, he or she cannot constitute the
Tribunal for the purpose of hearing the
proceeding.
(7) Subject to this Act and the rules, the procedure for
mediation is at the discretion of the mediator.
20 89. Tribunal may require personal attendance at
mediation
The member or principal registrar who refers a
proceeding for mediation may require a party to
attend the mediation, either personally or by a
25 representative who has authority to settle the
proceeding on behalf of the party.
90. What happens if mediation is successful?
If the parties agree to settle a proceeding as a
result of mediation, the mediator must notify the
30 Tribunal that the parties have agreed to settle.
91. What happens if mediation is unsuccessful?
If the mediator has attempted unsuccessfully to
settle the proceeding by mediation, the mediator
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must notify the principal registrar that mediation
has been unsuccessful.
92. Evidence inadmissible
Evidence of anything said or done in the course of
5 mediation is not admissible in any hearing before
the Tribunal in the proceeding, unless all parties
agree to the giving of the evidence.
93. Settlement of proceeding
(1) If the parties agree to settle a proceeding at any
10 time, the Tribunal may make any orders necessary
to give effect to the settlement.
(2) The Tribunal's power to make an order under sub-
section (1) is exercisable by any member
including, if the settlement is achieved through
15 mediation conducted by a member, that member.
(3) If the parties agree to settle a proceeding at a
compulsory conference at which the principal
registrar is presiding, the principal registrar may
exercise the Tribunal's power to make orders
20 under sub-section (1).
Division 6--Referral to experts
94. Use of experts
(1) The Tribunal may call in the assistance of an
expert to advise it in respect of any matter arising
25 in a proceeding.
(2) The parties are responsible for any costs of an
expert, and are to pay those costs in the
proportions determined by the Tribunal.
95. Special referees
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(1) The Tribunal may refer any question arising in a
proceeding to a special referee for the special
referee--
(a) to decide the question; or
5 (b) to give his or her opinion with respect to it.
(2) The parties are responsible for any costs of a
special referee, and are to pay those costs in the
proportions determined by the Tribunal.
96. Referral of questions of law to Court
10 (1) The Tribunal, with the consent of the President,
may refer any question of law arising in a
proceeding to the Trial Division of the Supreme
Court or the Court of Appeal for decision.
(2) A referral may be made under sub-section (1) on
15 the application of a party or on the Tribunal's own
initiative.
(3) If a question of law has been referred to the Trial
Division or the Court of Appeal, the Tribunal
must not--
20 (a) make a determination to which the question
is relevant while the referral is pending; or
(b) proceed in a manner or make a determination
that is inconsistent with the opinion of the
Trial Division or Court of Appeal on the
25 question.
Division 7--Hearings
97. Tribunal must act fairly
The Tribunal must act fairly and according to the
substantial merits of the case in all proceedings.
30 98. General procedure
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(1) The Tribunal--
(a) is bound by the rules of natural justice;
(b) is not bound by the rules of evidence or any
practices or procedures applicable to courts
5 of record, except to the extent that it adopts
those rules, practices or procedures;
(c) may inform itself on any matter as it sees fit;
(d) must conduct each proceeding with as little
formality and technicality, and determine
10 each proceeding with as much speed, as the
requirements of this Act and the enabling
enactment and a proper consideration of the
matters before it permit.
(2) Without limiting sub-section (1)(b), the Tribunal
15 may admit into evidence the contents of any
document despite the non-compliance with any
time limit or other requirement specified in the
rules in relation to that document or service of it.
(3) Subject to this Act, the regulations and the rules,
20 the Tribunal may regulate its own procedure.
(4) Sub-section (1)(a) does not apply to the extent that
this Act or an enabling enactment authorises,
whether expressly or by implication, a departure
from the rules of natural justice.
25 99. Notice of hearings
(1) The principal registrar must give notice, in
accordance with the rules, of the time and place
for the hearing of a proceeding to--
(a) each party to the proceeding; and
30 (b) each other person entitled to notice of the
proceeding or hearing under this Act, the
enabling enactment or the rules; and
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(c) any other person that the Tribunal directs be
given notice of the hearing.
(2) If a person, including a party, to whom notice has
been given in accordance with the rules fails to
5 attend, the hearing may be held in the absence of
that person.
100. Method of conducting hearings
(1) If the Tribunal thinks it appropriate, it may
conduct all or part of a proceeding by means of a
10 conference conducted using telephones, video
links or any other system of telecommunication.
(2) If the parties to a proceeding agree, the Tribunal
may conduct all or part of a proceeding entirely
on the basis of documents, without any physical
15 appearance by the parties or their representatives
or witnesses.
101. Hearings to be public unless otherwise ordered
(1) Unless another provision of this Act provides
otherwise, all hearings of the Tribunal must be
20 held in public.
(2) The Tribunal, on its own initiative or on the
application of a party, may direct that a hearing or
any part of it be held in private.
(3) In the circumstances set out in sub-section (4) the
25 Tribunal may order--
(a) that any evidence given before it;
(b) that the contents of any documents produced
to it;
(c) that any information that might enable a
30 person who has appeared before it to be
identified--
must not be published except in the manner and to
the persons (if any) specified by the Tribunal.
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(4) The Tribunal may make an order under sub-
section (3) if the Tribunal considers it is necessary
to do so--
(a) to avoid--
5 (i) endangering the national security or
international security of Australia; or
(ii) prejudicing the administration of
justice; or
(iii) endangering the physical safety of any
10 person; or
(iv) offending public decency or morality;
or
(v) the publication of confidential
information or information the subject
15 of a certificate under section 53 or 54;
or
(b) for any other reason in the interests of
justice.
(5) The Tribunal's power to make an order under sub-
20 section (3) is exercisable only by the presiding
member.
102. Evidence
(1) The Tribunal must allow a party a reasonable
opportunity--
25 (a) to call or give evidence; and
(b) to examine, cross-examine or re-examine
witnesses; and
(c) to make submissions to the Tribunal.
(2) Despite sub-section (1), the Tribunal may refuse
30 to allow a party to call evidence on a matter if the
Tribunal considers that there is already sufficient
evidence of that matter before the Tribunal.
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(3) Evidence in a proceeding--
(a) may be given orally or in writing; and
(b) if the Tribunal requires, must be given on
oath or by affidavit5.
5 (4) A member of the Tribunal may administer or
cause to be administered an oath or take or cause
to be taken an affirmation for the purpose of
taking and receiving evidence at a hearing.
103. Authorisation of person to take evidence
10 (1) The Tribunal may authorise, in writing, a person
(whether or not a member of the Tribunal) to take
evidence on behalf of the Tribunal for the
purposes of any proceeding.
(2) The Tribunal's power under sub-section (1) to
15 authorise the taking of evidence is exercisable
only by a presidential member.
(3) A person may take evidence under this section
outside Victoria if the Tribunal so authorises.
(4) The Tribunal may give directions as to the taking
20 of evidence under this section.
(5) If a person other than a member of the Tribunal is
authorised to take evidence--
(a) the person has all the powers of a member of
the Tribunal in relation to the taking of
25 evidence; and
(b) section 135 (failing to give evidence) applies
as if the person were the presiding member
of the Tribunal.
(6) Evidence taken under this section--
30 (a) is deemed to be evidence given to the
Tribunal; and
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(b) in the case of evidence taken outside
Victoria, is deemed to have been given in
Victoria.
104. Witness summons
5 (1) The principal registrar--
(a) may; and
(b) if directed by the Tribunal, must--
issue a summons to a person to attend the Tribunal
to give evidence and produce any documents that
are referred to in the summons6.
10
(2) A summons may be issued, or a direction given,
under sub-section (1) at the request of a party or
on the principal registrar's or Tribunal's own
initiative.
15 (3) The Tribunal's power to make a direction under
sub-section (1)(b) in a proceeding is exercisable
by a presidential member or the presiding
member.
(4) A person who attends in answer to a summons is
20 entitled to be paid the prescribed fees and
allowances or, if no fees and allowances are
prescribed, the fees and allowances (if any)
determined by the Tribunal.
(5) The fees and allowances are to be paid--
25 (a) if the person was summoned at the request of
a party, by that party; or
(b) if the person was summoned on the initiative
of the Tribunal, by the parties in the
proportion determined by the Tribunal.
30 105. Rule against self-incrimination does not apply
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(1) A person is not excused from answering a
question or producing a document in a proceeding
on the ground that the answer or document might
tend to incriminate the person.
5 (2) If the person claims, before answering a question
or producing a document, that the answer or
document might tend to incriminate them, the
answer or document is not admissible in evidence
in any criminal proceedings, other than in
10 proceedings in respect of the falsity of the answer.
106. Other claims of privilege
(1) Except as provided by section 80(3) or 105, a
person is excused from answering a question or
producing a document in a proceeding if the
15 person could not be compelled to answer the
question or produce the document in proceedings
in the Supreme Court.
(2) The Tribunal may require a person to produce a
document to it for the purpose of determining
20 whether or not it is a document that the Tribunal
has power to compel the person to produce.
107. Dealing with questions of law
(1) A question of law arising in a proceeding must be
decided by a judicial member or a member who is
25 a legal practitioner.
(2) If the Tribunal is constituted in a proceeding by
more than one judicial member or legal
practitioner (or both), a question of law arising in
the proceeding must be decided by the presiding
30 member.
(3) If a question of law arises in a proceeding where
the Tribunal is constituted by a member or
members who are not judicial members or legal
practitioners--
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(a) the question must be decided by another
member who is a judicial member or legal
practitioner; and
(b) for that purpose only, the Tribunal in the
5 proceeding is to be reconstituted to include
that other member.
(4) In this section, "question of law" includes a
question of mixed law and fact.
108. Reconstitution of Tribunal
10 (1) At any time during the hearing of a proceeding a
party may apply to the Tribunal requesting that it
be reconstituted for the purposes of the
proceeding.
(2) At any time during the hearing of a proceeding,
15 the President or a member of the Tribunal may
give notice to the parties that the President or
member seeks the reconstitution of the Tribunal
for the purposes of the proceeding.
(3) On application under sub-section (1), or after
20 notice is given under sub-section (2)--
(a) the Tribunal, as presently constituted, after
allowing the parties to make submissions,
may decide that it should be reconstituted;
and
25 (b) if so, the President must reconstitute the
Tribunal.
(4) If the Tribunal rejects an application under sub-
section (1) for reconstitution, a party may require
the matter to be referred to the President.
30 (5) If a matter is referred to the President under sub-
section (4), the President, after allowing the
parties to make submissions, may reconstitute the
Tribunal.
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(6) If the Tribunal is reconstituted for the purposes of
a proceeding, the reconstituted Tribunal may have
regard to any record of the proceeding in the
Tribunal as previously constituted, including a
5 record of any evidence taken in the proceeding.
Division 8--Costs
109. Power to award costs
(1) Subject to this Division, each party is to bear their
own costs in the proceeding.
10 (2) At any time, the Tribunal may order that a party
pay all or a specified part of the costs of another
party in a proceeding.
(3) The Tribunal may make an order under sub-
section (2) only if satisfied that it is fair to do so,
15 having regard to--
(a) whether a party has conducted the
proceeding in a way that unnecessarily
disadvantaged another party to the
proceeding by conduct such as--
20 (i) failing to comply with an order or
direction of the Tribunal without
reasonable excuse;
(ii) failing to comply with this Act, the
regulations, the rules or an enabling
25 enactment;
(iii) asking for an adjournment as a result of
(i) or (ii);
(iv) causing an adjournment;
(v) attempting to deceive another party or
30 the Tribunal;
(vi) vexatiously conducting the proceeding;
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(b) whether a party has been responsible for
prolonging unreasonably the time taken to
complete the proceeding;
(c) the relative strengths of the claims made by
5 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 proceeding;
(e) any other matter the Tribunal considers
10 relevant.
(4) If the Tribunal considers that the representative of
a party, rather than the party, is responsible for
conduct described in sub-section (3)(a) or (b), the
Tribunal may order that the representative in his
15 or her own capacity compensate another party for
any costs incurred unnecessarily.
(5) Before making an order under sub-section (4), the
Tribunal must give the representative a reasonable
opportunity to be heard.
20 (6) If the Tribunal makes an order for costs before the
end of a proceeding, the Tribunal may require that
the order be complied with before it continues
with the proceeding.
110. Costs of intervention
25 (1) The Tribunal may order that a person given leave
to intervene in a proceeding pay an amount
specified by the Tribunal to a party as
compensation for all or part of the costs
reasonably incurred by the party as a result of the
30 intervention.
(2) If the Attorney-General or Director intervenes in a
proceeding, the Tribunal may order that the State
pay an amount specified by the Tribunal to a party
as compensation for all or part of the costs
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reasonably incurred by the party as a result of the
intervention.
111. Amount of costs
(1) If the Tribunal makes an order for costs, the
5 Tribunal may fix the amount of costs itself or
order that costs be assessed or settled by the
principal registrar.
(2) An assessment of costs by the principal registrar is
to be taken to be an assessment of costs by the
10 Tribunal.
112. Presumption of order for costs if settlement offer is
rejected
(1) This section applies if--
(a) a party to a proceeding (other than a
15 proceeding for review of a decision) gives
another party an offer in writing to settle the
proceeding; and
(b) the other party does not accept the offer
within the time the offer is open; and
20 (c) the offer complies with sections 113 and
114; and
(d) in the opinion of the Tribunal, the orders
made by the Tribunal in the proceeding are
not more favourable to the other party than
25 the offer.
(2) If this section applies and unless the Tribunal
orders otherwise, a party who made an offer
referred to in sub-section (1)(a) is entitled to an
order that the party who did not accept the offer
30 pay all costs incurred by the offering party after
the offer was made.
(3) In determining whether its orders are or are not
more favourable to a party than an offer, the
Tribunal--
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(a) must take into account any costs it would
have ordered on the date the offer was made;
and
(b) must disregard any interest or costs it
5 ordered in respect of any period after the
date the offer was received.
113. Provisions regarding settlement offers
(1) An offer may be made--
(a) with prejudice, meaning that any party may
10 refer to the offer, or to any terms of the offer,
at any time during the proceeding; or
(b) without prejudice, meaning that the Tribunal
is not able to be told of the making of the
offer until after it has made its orders in
15 respect of the matters in dispute in the
proceeding (other than orders in respect of
costs).
(2) If an offer does not specify whether it is made
with or without prejudice, it is to be treated as if it
20 had been made without prejudice.
(3) A party may serve more than one offer.
(4) If an offer provides for the payment of money, the
offer must specify when that money is to be paid.
114. Provisions concerning the acceptance of settlement
25 offers
(1) An offer must be open for acceptance until
immediately before the Tribunal makes its orders
on the matters in dispute, or until the expiry of a
specified period after the offer is made, whichever
30 is the shorter period.
(2) The minimum period that can be specified is 14
days.
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(3) An offer cannot be withdrawn while it is open for
acceptance without the permission of the
Tribunal.
(4) In deciding whether to give permission, the
5 Tribunal may examine the offer, even if it was
made without prejudice.
(5) If the offer was made without prejudice, a member
of the tribunal who examines it for the purposes of
sub-section (4) can take no further part in the
10 proceeding after determining whether or not to
give permission.
(6) A party can only accept an offer by giving the
party who made it a signed notice of acceptance.
(7) A party may accept an offer even though it has
15 made a counter-offer.
115. Consequences if accepted offer is not complied with
If an offer is accepted, but the party who made the
offer does not comply with its terms, the Tribunal,
at the request of the party who accepted the offer,
20 may--
(a) make an order giving effect to the terms of
the offer; or
(b) if the party making the offer was the
applicant--
25 (i) dismiss the proceeding; or
(ii) if the party who accepted the offer
made a counterclaim before the offer
was made, make an order awarding the
party any or all of the things asked for
30 in the counterclaim; or
(c) if the party who accepted the offer is the
applicant, make an order awarding the
applicant any or all of the things asked for in
the application.
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Division 9--Orders
116. Form and service
(1) An order of the Tribunal must be--
(a) in writing; and
5 (b) authenticated in accordance with the rules.
(2) The Tribunal must--
(a) give a copy of any order it makes in a
proceeding to each party and each other
person entitled to notice of the proceeding or
10 of the order under this Act or the enabling
enactment; or
(b) direct a party to give a copy of an order to
the other parties and each other person
entitled to notice of the proceeding or of the
15 order under this Act or the enabling
enactment.
(3) The Tribunal may direct the principal registrar or
a party to give a copy of any order made by it to
any other person.
20 (4) If the Tribunal makes an order affecting the
licensing or registration of a person who is
licensed or registered by the Business Licensing
Authority, the Tribunal must advise the Business
Licensing Authority of that order.
25 117. Reasons for final orders
(1) The Tribunal must give reasons for any order it
makes in a proceeding, other than an interim
order, within--
(a) 60 days after making the order; or
30 (b) such other period as is specified by the rules
or the President.
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(2) If the Tribunal gives oral reasons, a party, within
14 days, may request the Tribunal to give written
reasons.
(3) The Tribunal must comply with a request under
5 sub-section (2) within 45 days after receiving it.
(4) The President may extend the 45-day period
referred to in sub-section (3), but must give
reasons for the extension to the party who
requested the written reasons for the order.
10 (5) If the Tribunal gives written reasons, it must
include in those reasons its findings on material
questions of fact.
(6) The reasons for an order, whether oral or written,
form part of the order.
15 118. When does an order come into operation?
(1) An order of the Tribunal comes into effect
immediately after it is made, or at such later time
as is specified in it.
(2) Sub-section (1) is subject to an order of the
20 Tribunal under section 149 or an order of the
Supreme Court.
119. Correcting mistakes
(1) The Tribunal may correct an order made by it if
the order contains--
25 (a) a clerical mistake; or
(b) an error arising from an accidental slip or
omission; or
(c) a material miscalculation of figures or a
material mistake in the description of any
30 person, thing or matter referred to in the
order; or
(d) a defect of form.
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(2) The correction may be made--
(a) on the Tribunal's own initiative; or
(b) on the application of a party in accordance
with the rules.
5 120. Re-opening an order on substantive grounds
(1) A person in respect of whom an order is made
may apply to the Tribunal for a review of the
order if the person did not appear and was not
represented at the hearing at which the order was
10 made.
(2) An application under sub-section (1) is to be made
in accordance with, and within the time limits
specified by, the rules.
(3) The Tribunal may--
15 (a) hear and determine the application if it is
satisfied that the applicant had a reasonable
excuse for not attending or being represented
at the hearing; and
(b) if it thinks fit, order that the order be revoked
20 or varied.
(4) Nothing in Division 3 of Part 3 applies to a review
under this section.
121. Enforcement of monetary orders
(1) A person to whom payment is to be made under a
25 monetary order may enforce the order by filing in
the appropriate court--
(a) a copy of the order certified by a presidential
member or the principal registrar to be a true
copy; and
30 (b) that person's affidavit as to the amount not
paid under the order.
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(2) No charge is to be made for filing a copy of an
order or an affidavit under this section.
(3) On filing, the order must be taken to be an order
of the appropriate court, and may be enforced
5 accordingly.
(4) In this section--
"appropriate court" means a court that would
have jurisdiction to enforce a debt of the
equivalent amount to the amount required to
10 be paid under a monetary order.
122. Enforcement of non-monetary orders
(1) A person may enforce a non-monetary order by
filing in the Supreme Court--
(a) a copy of the order certified by a presidential
15 member or the principal registrar to be a true
copy; and
(b) that person's affidavit as to the non-
compliance with the order; and
(c) a certificate from a judicial member stating
20 that the order is appropriate for filing in the
Supreme Court.
(2) No charge is to be made for filing a copy of an
order, an affidavit or a certificate under this
section.
25 (3) On filing, the order must be taken to be an order
of the Supreme Court, and may be enforced
accordingly.
Division 10--General powers
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123. Injunctions
(1) The Tribunal may by order grant an injunction,
including an interim injunction, in any proceeding
if it is just and convenient to do so.
5 (2) The Tribunal's power to make an order under sub-
section (1)--
(a) in the case of an interim injunction, is
exercisable by a judicial member or a
member who is a legal practitioner; and
10 (b) in any other case, is exercisable only by a
judicial member.
(3) The Tribunal may make an order under sub-
section (1) on application by any party or on its
own initiative.
15 (4) The Tribunal may make an order under sub-
section (1) granting an interim injunction whether
or not it has given any person whose interests may
be affected by the order an opportunity to be
heard.
20 (5) In making an order granting an interim injunction,
the Tribunal--
(a) may require any undertaking as to costs or
damages that it considers appropriate; and
(b) may make provision for the lifting of the
25 order if specified conditions are met.
(6) The Tribunal may assess any costs or damages
referred to in sub-section (5)(a).
(7) The Tribunal's power to make an order granting
an interim injunction is subject to any conditions
30 specified in the rules.
(8) The Tribunal's power under this section is in
addition to, and does not limit, any power of the
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Tribunal under an enabling enactment to make an
order in the nature of an injunction.
124. Declarations
(1) The Tribunal may make a declaration concerning
5 any matter in a proceeding instead of any orders it
could make, or in addition to any orders it makes,
in the proceeding.
(2) The Tribunal's power to make a declaration under
sub-section (1) is exercisable only by a judicial
10 member.
(3) The Tribunal's power under this section is in
addition to, and does not limit, any power of the
Tribunal under an enabling enactment to make a
declaration.
15 125. Advisory opinions
An enabling enactment may provide for the
Tribunal to give an advisory opinion on any
matter or question referred to it in accordance
with the enabling enactment.
20 126. Extension or abridgment of time and waiver of
compliance
(1) The Tribunal, on application by any person or on
its own initiative, may extend any time limit fixed
by or under an enabling enactment for the
25 commencement of a proceeding.
(2) If the rules permit, the Tribunal, on application by
a party or on its own initiative, may--
(a) extend or abridge any time limit fixed by or
under this Act, the regulations, the rules or a
30 relevant enactment for the doing of any act
in a proceeding; or
(b) waive compliance with any procedural
requirement, other than a time limit that the
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Tribunal does not have power to extend or
abridge.
(3) The Tribunal may extend time or waive
compliance under this section even if the time or
5 period for compliance had expired before an
application for extension or waiver was made.
(4) The Tribunal may not extend or abridge time or
waive compliance if to do so would cause any
prejudice or detriment to a party or potential party
10 that cannot be remedied by an appropriate order
for costs or damages.
(5) In this section--
"relevant enactment" means an enactment
specified in the rules to be a relevant
15 enactment for the purposes of this section.
127. Power to amend documents
(1) At any time, the Tribunal may order that any
document in a proceeding be amended.
(2) An order under sub-section (1) may be made on
20 the application of a party or on the Tribunal's own
initiative.
128. Retention of documents and exhibits
(1) The Tribunal may retain for a reasonable period
and make copies of, or take extracts from, any
25 document produced to the Tribunal in the course
of a proceeding.
(2) If--
(a) the Tribunal makes a copy of a document
referred to in sub-section (1); and
30 (b) a member of the Tribunal certifies the copy
to be a true copy of the original--
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the certified copy is admissible in evidence before
any court, tribunal or person acting judicially as if
it were the original.
(3) The Tribunal may retain for a reasonable period
5 any non-documentary exhibit or thing produced to
the Tribunal in the course of a proceeding.
129. Power of entry and inspection
(1) If the presiding member considers it desirable for
the purposes of a proceeding, the Tribunal may--
10 (a) enter and inspect any land or building either
in the presence of, or without, the parties; or
(b) authorise a member of staff of the Tribunal
or other person to enter and inspect any land
or building for the purpose of preparing a
15 report to the Tribunal; or
(c) order an occupier of land or buildings
relevant to the proceeding to give a person
who is to give evidence in the proceeding
reasonable access to the land or buildings.
20 (2) If land or a building is occupied by a person who
is not a party, a power of entry under sub-section
(1)(a) or (b) may only be exercised--
(a) with the consent of the occupier; or
(b) after 2 days' notice has been given to the
25 occupier.
(3) A power of entry and inspection under sub-section
(1)(a) must be exercised by all members of the
Tribunal in a proceeding together, unless the
presiding member directs otherwise.
30 (4) A power of entry under sub-section (1)(a) or (b)
may be exercised at any reasonable time.
(5) A person must not--
(a) obstruct or hinder; or
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(b) refuse access to any land or buildings to--
a person exercising a power of entry and
inspection under this section.
Penalty: Level 9 imprisonment (6 months
5 maximum) or a level 9 fine (60 penalty
units maximum) or both.
130. Power to impose conditions and make further orders
(1) A power of the Tribunal to make an order or other
decision includes a power to make the order or
10 decision subject to any conditions or further
orders that the Tribunal thinks fit.
(2) Conditions or further orders may include--
(a) an adjournment of the proceeding;
(b) an order for costs;
15 (c) a condition or order that a party give notice
of the proceeding, order or decision to any
person specified by the Tribunal;
(d) a condition or order that a person give an
undertaking to the Tribunal;
20 (e) a condition or order necessary or desirable to
give effect to an order or other decision.
131. Variation or revocation of procedural order or
direction
An order or direction as to the procedure to be
25 followed in a proceeding may be varied or
revoked at any time by any member empowered
by or under this Act or the rules to make such an
order or give such a direction.
132. Waiver of fees
30 (1) The principal registrar may in any case--
(a) waive; or
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(b) if permitted by the regulations, reduce--
any fee payable under this Act or the regulations
if the principal registrar considers that the
payment of the fee would cause the person
5 responsible for its payment financial hardship or
on any other ground prescribed in the regulations.
(2) If costs are awarded by the Tribunal against a
person who has had a fee waived or reduced under
sub-section (1), the person becomes liable to pay
10 the amount of the fee previously waived or
reduced.
(3) If a person becomes liable to pay a fee because of
sub-section (2), the person is not entitled, without
leave of the Tribunal, to bring any proceeding, or
15 make any application in an existing proceeding,
until the fee is paid.
Division 11--Offences
133. Non-compliance with order
(1) A person who does not comply with an order of
20 the Tribunal, other than a monetary order, is guilty
of an offence.
Penalty: Imprisonment until the person complies
with the order or for 3 months,
whichever is sooner or a fine of 20
25 penalty units and 5 penalty units for
each day the non-compliance continues
after the making of the order, up to a
maximum total fine of 50 penalty units
or both imprisonment and fine.
30 (2) However, if the Tribunal makes an order without
giving the person against whom it is made an
opportunity to be heard, sub-section (1) only
applies on the person being given personally or in
accordance with sub-section (3)--
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(a) a copy of the order certified by the principal
registrar or a member of the Tribunal as
being an accurate copy; and
(b) a copy of this section.
5 (3) If the Tribunal is satisfied that it is not possible or
appropriate for a person to be personally given the
documents referred to in sub-section (2), the
Tribunal may specify another method for service
of the documents on the person under that sub-
10 section.
134. Failing to comply with summons
(1) A person who has been properly served with a
summons to attend the Tribunal must not, without
reasonable excuse, fail to--
15 (a) attend as required by the summons until he
or she has been excused or released from
attendance by the Tribunal; or
(b) produce any document referred to in the
summons that is in the person's possession.
20 Penalty: Level 9 imprisonment (6 months
maximum) or a level 9 fine (60 penalty
units maximum) or both, and 5 penalty
units for each day that the offence
continues after the day on which the
25 person was required to attend or
produce the document.
(2) The Tribunal may direct the apprehension of a
person who fails to attend as required by a
summons for the purpose of bringing the person
30 before the Tribunal to give evidence or produce
documents (as the case requires).
(3) The Tribunal's power to give a direction under
sub-section (2) is exercisable only by a judicial
member.
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(4) A member of the police force must obey and
execute a direction of the Tribunal under sub-
section (2).
135. Failing to give evidence
5 A person appearing as a witness before the
Tribunal must not, without reasonable excuse--
(a) refuse to be sworn in or make an affirmation;
or
(b) refuse to answer a question that the person is
10 required by the presiding member to answer.
Penalty: Level 9 imprisonment (6 months
maximum) or a level 9 fine (60 penalty
units maximum) or both.
136. False or misleading information
15 A person must not knowingly give false or
misleading information to the Tribunal or a
registrar.
Penalty: Level 9 imprisonment (6 months
maximum) or a level 9 fine (60 penalty
20 units maximum) or both.
137. Contempt
(1) A person is guilty of contempt of the Tribunal if
they--
(a) insult a member of the Tribunal while that
25 member is performing functions as member;
or
(b) insult, obstruct or hinder a person attending a
hearing before the Tribunal; or
(c) misbehave at a hearing before the Tribunal;
30 or
(d) interrupt a hearing before the Tribunal; or
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(e) obstruct or hinder a person from complying
with an order of the Tribunal or a summons
to attend the Tribunal; or
(f) do any other act that would, if the Tribunal
5 were the Supreme Court, constitute contempt
of that Court.
(2) If it is alleged or appears to the Tribunal that a
person is guilty of contempt of the Tribunal, the
Tribunal may--
10 (a) direct that the person be arrested and brought
before the Tribunal; or
(b) issue a warrant for his or her arrest in the
form prescribed by the rules.
(3) On the person being brought before the Tribunal,
15 the Tribunal must cause them to be informed of
the contempt with which they are charged and
thereafter adopt any procedure that the Tribunal
thinks fit.
(4) The Bail Act 1977 applies, with any necessary
20 modifications, to and in respect of a person
brought before the Tribunal under this section as
if the person were accused of an offence and were
being held in custody in relation to that offence.
(5) If the Tribunal finds that the person is guilty of
25 contempt of the Tribunal, it may--
(a) in the case of a natural person, commit the
person to prison for a term of not more than
5 years or impose a fine of not more than
$100 000 or do both;
30 (b) in the case of a corporation, impose a fine of
not more than $500 000.
(6) If a person is committed to prison for a term, the
Tribunal may order his or her discharge before the
end of the term.
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(7) The Tribunal may accept an apology for a
contempt and may remit any punishment for it
either wholly or in part.
(8) A warrant for the committal of a person found
5 guilty of contempt of the Tribunal must be in the
form prescribed by the rules.
(9) A fine imposed on a person under this section may
be enforced as if it were a fine imposed on that
person by the Supreme Court on finding them
10 guilty of an offence.
(10) A power conferred on the Tribunal by this section
is exercisable only by the President.
(11) Despite anything to the contrary in section 46 of
the Public Prosecutions Act 1994, that section
15 applies in relation to a contempt of the Tribunal to
the same extent as it would if the contempt were a
contempt of the Supreme Court and the Tribunal
were the Supreme Court.
138. Appeal against punishment for contempt
20 (1) A person who is committed to prison or fined
under section 137 may, with the leave of the Court
of Appeal, appeal to the Court of Appeal in
accordance with Part VI of the Crimes Act 1958
against the punishment as if--
25 (a) they were a person convicted on indictment
in the Trial Division of the Supreme Court;
and
(b) the punishment imposed were the sentence
passed on their conviction.
30 (2) The operation of any order made under section
137 imposing punishment is stayed for 14 days
after its making and, if notice of application for
leave to appeal to the Court of Appeal against it is
given within that period, the stay continues until
35 the appeal is determined.
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(3) Despite anything to the contrary in Part VI of the
Crimes Act 1958, as applied by sub-section (1),
the Court of Appeal does not have power to give
leave to extend the time within which notice of
5 application for leave to appeal may be given.
139. Double jeopardy
If an act or omission constitutes both an offence
against this Act and a contempt of the Tribunal,
the offender is liable to be charged either with the
10 offence or the contempt or both but is not liable to
be punished more than once for the same act or
omission.
Division 12--Service of documents
140. Service
15 (1) For the purposes of this Act, a notice, order or
other document may be served on or given to a
person--
(a) if the person is a natural person--
(i) by delivering it personally to the
20 person; or
(ii) by sending it by post, facsimile or other
electronic transmission to the person at
his or her usual or last known
residential or business address; or
25 (iii) by leaving it at the person's usual or last
known residential or business address
with a person on the premises who is
apparently at least 16 years old and
apparently residing or employed there;
30 or
(b) if the person is a company incorporated
under the Corporations Law--
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(i) by delivering it personally to the
registered office of the company; or
(ii) by sending it by post, facsimile or other
electronic transmission to the registered
5 office of the company; or
(iii) in any other way that service of
documents may be effected on a body
corporate; or
(c) if the person is an incorporated association
10 within the meaning of the Associations
Incorporation Act 1981, in accordance with
section 48 of that Act; or
(d) in any case--
(i) in a manner permitted by the rules; or
15 (ii) in a manner directed by the Tribunal.
(2) For the purposes of this Act, a notice or other
document may be served on or given to an
unincorporated association--
(a) by delivering it personally to the president,
20 secretary or other similar officer of the
association; or
(b) by sending it by post, facsimile or other
electronic transmission to the president,
secretary or other similar officer of the
25 association at that person's usual or last
known residential or business address; or
(c) in any other manner--
(i) permitted by the rules; or
(ii) directed by the Tribunal.
30 (3) If the Tribunal directs that notice be given to a
person, or a class of persons, by advertisement or
publication of the notice, that advertisement or
publication must be taken to be service of notice
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on the person, or persons in that class, as the case
requires.
141. When is service effective?
(1) For the purposes of this Act, a notice or other
5 document must be taken to have been served on,
or given to, a person or an unincorporated
association--
(a) in the case of delivery in person--at the time
the document is delivered;
10 (b) in the case of posting--2 business days after
the day on which the document was posted;
(c) in the case of facsimile or other electronic
transmission--at the time the facsimile or
transmission is received.
15 (2) If a facsimile or other electronic transmission is
received after 4.00 p.m. on any day, it must be
taken to have been received on the next business
day.
(3) In this section--
20 "business day" means a day other than--
(a) a Saturday or Sunday; or
(b) a public holiday or public half-holiday
in the place to where the notice is sent
or delivered.
25 Division 13--General
142. Judicial notice
(1) All courts must take judicial notice of--
(a) the signature of a person who is, or was, a
member of the Tribunal or the principal
30 registrar or another registrar; and
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(b) the fact that a person referred to in paragraph
(a) is or was a member, the principal
registrar or another registrar (as the case
requires); and
5 (c) the official seal of the Tribunal affixed to a
document.
(2) If the official seal of the Tribunal is affixed to a
document, a court must presume that it was
properly affixed until the contrary is proved.
10 143. Immunity of participants
(1) A member of the Tribunal has, in the performance
of his or her functions as member, the same
protection and immunity as a judge of the
Supreme Court has in the performance of his or
15 her duties as judge.
(2) A person representing a party in a proceeding has
the same protection and immunity as a legal
practitioner has in representing a party in
proceedings in the Supreme Court.
20 (3) A party to a proceeding has the same protection
and immunity as a party to proceedings in the
Supreme Court.
(4) A person appearing as a witness before the
Tribunal has the same protection and immunity as
25 a witness has in proceedings in the Supreme
Court.
(5) A person taking evidence on behalf of the
Tribunal under section 103 has, in the
performance of his or her functions under that
30 section, the same protection and immunity as a
member of the Tribunal.
(6) A mediator has, in the performance of his or her
functions as mediator, the same protection and
immunity as a member of the Tribunal.
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(7) An expert or special referee has, in the
performance of his or her functions under
Division 6 of Part 4, the same protection and
immunity as a member of the Tribunal.
5 (8) The principal registrar or another registrar--
(a) has, in performing functions under section
111(1) (assessment or settlement of costs),
the same protection and immunity as the
Taxing Master of the Supreme Court has in
10 respect of the assessment or settlement of
bills of costs; and
(b) has, in exercising the powers of the Tribunal
as permitted by this Act or an enabling
enactment and in performing functions under
15 section 71 (rejection of applications) and 83
(compulsory conferences), the same
protection and immunity as a member of the
Tribunal.
144. Register of proceedings
20 (1) The principal registrar must keep a register of
proceedings containing the matters required by the
rules.
(2) The principal registrar must ensure that the
register is available for inspection at any time that
25 the principal registry is open for business.
(3) A party to a proceeding may inspect without
charge that part of the register that relates to the
proceeding.
(4) On paying the prescribed fee (if any) any person
30 may--
(a) inspect the register; and
(b) obtain a copy of any part of the register.
(5) The rights conferred by this section are subject
to--
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(a) any conditions specified in the rules; and
(b) any order of the Tribunal under section 101;
and
(c) any certificate under section 53 or 54.
5 145. Principal registrar's certificate
(1) A certificate certifying as to any matter relating to
the contents of the register kept under section 144
and purporting to be signed by the principal
registrar or another registrar is admissible in any
10 proceeding before a court, tribunal or person
acting judicially as evidence of the matter
certified.
(2) Subject to any order of the Tribunal under section
101 and to any certificate under section 53 or 54,
15 the principal registrar must supply such a
certificate to any person who asks for it and who
pays the prescribed fee (if any).
146. Proceeding files
(1) The principal registrar must keep a file of all
20 documents lodged in a proceeding until the
expiration of the period of 5 years after the final
determination of the proceeding.
(2) A party in a proceeding may inspect the file of
that proceeding without charge.
25 (3) On paying the prescribed fee (if any) any person
may--
(a) inspect the file in that proceeding; and
(b) obtain a copy of any part of the file.
(4) The rights conferred by this section are subject
30 to--
(a) any conditions specified in the rules;
(b) any direction of the Tribunal to the contrary;
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(c) any order of the Tribunal under section 101;
(d) any certificate under section 53 or 54.
147. Publication of determinations and orders
For the guidance of those who may wish to bring
5 proceedings, the Tribunal may publish from time
to time reports or bulletins of important or typical
determinations and orders made by it.
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PART 5--APPEALS FROM THE TRIBUNAL
148. Appeals from the Tribunal
(1) A party to a proceeding may appeal, on a question
of law, from an order of the Tribunal in the
5 proceeding--
(a) to the Court of Appeal, if the Tribunal was
constituted for the purpose of making the
order by the President or a Vice President,
whether with or without others; or
10 (b) to the Trial Division of the Supreme Court in
any other case--
if the Court of Appeal or the Trial Division, as the
case requires, gives leave to appeal.
(2) An application for leave to appeal must be
15 made--
(a) no later than 28 days after the day of the
order of the Tribunal; and
(b) in accordance with the rules of the Supreme
Court.
20 (3) If leave is granted, the appeal must be instituted--
(a) no later than 14 days after the day on which
leave is granted; and
(b) in accordance with the rules of the Supreme
Court.
25 (4) If the Tribunal gives oral reasons for making an
order and a party then requests it to give written
reasons under section 117, the day on which the
written reasons are given to the party is deemed to
be the day of the order for the purposes of sub-
30 section (2).
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(5) The Court of Appeal or the Trial Division, as the
case requires, may at any time extend or abridge
any time limit set out in sub-section (3).
(6) A party that institutes an appeal must notify the
5 principal registrar.
(7) The Court of Appeal or the Trial Division, as the
case requires, may make any of the following
orders on an appeal--
(a) an order affirming, varying or setting aside
10 the order of the Tribunal;
(b) an order that the Tribunal could have made
in the proceeding;
(c) an order remitting the proceeding to be heard
and decided again, either with or without the
15 hearing of further evidence, by the Tribunal
in accordance with the directions of the
court;
(d) any other order the court thinks appropriate.
(8) If the court makes an order under sub-section
20 (7)(c), it must give directions as to whether or not
the Tribunal is to be constituted for the rehearing
by the same members who made the original
order.
(9) A party to a proceeding under a credit enactment
25 that involves a claim not exceeding $3000 cannot
apply for leave to appeal under this section unless
that party agrees to indemnify the reasonable legal
costs of the other parties in the proceeding.
(10) For the purposes of sub-section (9)--
30 "credit enactment" means--
(a) sections 25 and 26 of the Chattel
Securities Act 1987;
(b) Credit Act 1984;
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(c) Consumer Credit (Victoria) Code
(except Part 4);
(d) section 45 of the Motor Car Traders
Act 1986.
5 149. Tribunal may stay its order pending appeal
(1) The Tribunal, on the application of a party or on
its own initiative, may stay the operation of any
order it makes pending the determination of any
appeal that may be instituted under this Part.
10 (2) The Tribunal may attach any conditions it
considers appropriate to a stay of an order under
sub-section (1).
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PART 6--RULES COMMITTEE
Division 1--Establishment of Rules Committee
150. Establishment of Committee
A Rules Committee is established.
5 151. Functions
The functions of the Rules Committee are--
(a) to develop rules of practice and procedure
and practice notes for the Tribunal;
(b) to direct the education of members of the
10 Tribunal in relation to those rules of practice
and procedure and practice notes;
(c) any other functions conferred on it by the
President.
152. Membership
15 (1) The members of the Rules Committee are--
(a) the President;
(b) each Vice President;
(c) a full-time member of the Tribunal who is
not a judicial member or legal practitioner,
20 nominated by the Minister after consultation
with the President;
(d) a current practitioner or interstate
practitioner (within the meaning of the Legal
Practice Act 1996), nominated by the
25 Minister after consultation with the Legal
Practice Board;
(e) 2 persons nominated by the Minister.
(2) The appointment of the President or a Vice
President to the Rules Committee does not affect
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his or her tenure of office or status as a judge of
the Supreme Court or County Court, as the case
requires, nor the payment of his or her salary or
allowances as a judge nor any other rights or
5 privileges that he or she has as a judge.
(3) Service in the office of member of the Rules
Committee by the President or a Vice President
must be taken for all purposes to be service in the
office of judge of the Supreme Court or County
10 Court respectively.
153. Appointment and terms of members
(1) Members of the Rules Committee (other than the
President or Vice Presidents) are appointed by the
Governor in Council.
15 (2) Subject to this Act, members of the Rules
Committee (other than the President or Vice
Presidents) hold office for the following terms--
(a) the member referred to in section
152(1)(c)--until he or she ceases to be a
20 member of the Tribunal or 5 years,
whichever occurs first;
(b) the members referred to in section 152(1)(d)
and (e)--5 years.
(3) The members of the Rules Committee referred to
25 in section 152(1)(c), (d) and (e) are eligible for re-
appointment.
(4) The Public Sector Management Act 1992
(including Part 9) does not apply to a member of
the Rules Committee in respect of the office of
30 member.
(5) A member of the Rules Committee (other than the
members who are members of the Tribunal) is
entitled to receive the remuneration and
allowances that are fixed from time to time by the
35 Governor in Council.
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(6) A member of the Rules Committee (other than the
President or a Vice President) may resign his or
her office as member by delivering to the
Governor a signed letter of resignation.
5 Division 2--Procedure of Rules Committee
154. Who presides at a meeting?
At a meeting of the Rules Committee--
(a) the President presides if he or she is present;
(b) if the President is not present but a Vice
10 President is, the Vice President presides or,
if there is more than one present, the Vice
President appointed by the members present
presides;
(c) if neither the President nor a Vice President
15 is present, the member appointed by the
members present presides.
155. Quorum and meeting procedure
(1) The quorum of the Rules Committee is 4
members.
20 (2) A question arising at a meeting is determined by a
majority of votes and the person presiding has a
deliberative vote and, in the case of an equality of
votes, a second or casting vote.
(3) The Rules Committee must ensure that accurate
25 minutes are kept of its meetings.
(4) In all other respects the Rules Committee may
regulate its own proceedings.
156. Validity of decisions
A decision of the Rules Committee is not invalid
30 only because--
(a) of a vacancy in the office of a member; or
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(b) of a defect or irregularity in, or in connection
with, the appointment of a member.
Division 3--Exercise of Powers
157. Power to make rules
5 (1) The Rules Committee may, at a meeting, make
rules regulating the practice and procedure of the
Tribunal, including any rules required or
permitted to be made by this Act or necessary to
be made to give effect to this Act7.
10 (2) Without limiting the matters in respect of which
rules may be made, rules may be made for any
matter referred to in Schedule 2.
(3) The power to make rules is subject to the rules
being disallowed by the Parliament.
15 158. Practice notes
(1) The Rules Committee may issue practice notes
relating to the practice and procedure of the
Tribunal.
(2) The Rules Committee must give a copy of each
20 practice note to the Minister as soon as practicable
after the note is issued.
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PART 7--MISCELLANEOUS
159. Dealing with inconsistencies
If a provision of this Act, the regulations or the
rules is inconsistent with a provision of an
5 enabling enactment, the provision of the enabling
enactment prevails to the extent of the
inconsistency.
160. Supreme Court--limitation of jurisdiction
It is the intention of section 52 to alter or vary
10 section 85 of the Constitution Act 1975.
161. Regulations
(1) The Governor in Council may make regulations
for or with respect to--
(a) fees payable in respect of any proceeding or
15 in respect of any warrant issued by the
Tribunal under this Act or an enabling
enactment;
(b) fees for inspection and obtaining copies of
the register of proceedings and proceeding
20 files;
(c) generally prescribing any matter or thing
required or permitted by the Act to be
prescribed by regulation or necessary to be
prescribed by regulation to give effect to this
25 Act.
(2) The regulations--
(a) may be of general or limited application; and
(b) may differ according to differences in time,
place or circumstances; and
30 (c) may exempt persons or things or classes or
persons or things from any of the provisions
of the regulations, whether unconditionally
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or on specified conditions and either wholly
or to such an extent as is specified.
(3) Regulations with respect to fees--
(a) may provide for different fees for different
5 classes of proceedings;
(b) may provide for--
(i) specific fees;
(ii) maximum fees;
(iii) minimum fees;
10 (iv) fees that vary according to value or
time;
(c) may provide for the means of payment of
fees;
(d) may provide for the time at which fees are to
15 be paid.
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SCHEDULES
Sections 39 and 58
SCHEDULE 1
VARIATIONS FROM PARTS 3 AND 4 FOR VARIOUS
5 PROCEEDINGS
PART 1--INTRODUCTION
1. Purpose of Schedule
The purpose of this Schedule is to set out variations from
Parts 3 and 4 for certain proceedings under certain enabling
10 enactments.
2. Definitions
In this Schedule--
"credit enactment" means--
(a) sections 25 and 26 of the Chattel Securities
15 Act 1987;
(b) Credit Act 1984;
(c) Consumer Credit (Victoria) Code (except
Part 4);
(d) section 45 of the Motor Car Traders Act
20 1986;
"planning enactment" means--
(a) Catchment and Land Protection Act 1994;
(b) Environment Protection Act 1970;
(c) Extractive Industries Development Act 1995;
25 (d) section 41 of the Flora and Fauna Guarantee
Act 1988;
(e) section 185 of the Local Government Act
1989;
(f) Planning and Environment Act 1987 (except
30 sections 94(5) and 105);
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(g) Subdivision Act 1988 (except sections 38
and 39);
(h) section 56 of the Transport Act 1983 and
regulations made under that section;
5 (i) Water Act 1989 (except sections 19 and
266(6));
"responsible authority" has the same meaning as in the
Planning and Environment Act 1987;
"taxing Act" means--
10 (a) Business Franchise Acts;
(b) Debits Tax Act 1990;
(c) Financial Institutions Duty Act 1982;
(d) Gift Duty Act 1971;
(e) Land Tax Act 1958;
15 (f) Pay-roll Tax Act 1971;
(g) Probate Duty Act 1962;
(h) Stamps Act 1958;
(i) Taxation Administration Act 1997.
PART 2--ACCIDENT COMPENSATION ACT 1985
20 3. Privilege
Section 129I(5) of the Accident Compensation Act 1985
prevails over section 106(1) of this Act to the extent of any
inconsistency between them.
4. Powers of Tribunal on review of assessment or amendment of
25 contributions
Section 51(2)(d) does not apply in a proceeding for review
of an assessment or amendment under section 129G of the
Accident Compensation Act 1985.
PART 3--CHILDREN AND YOUNG PERSONS ACT 1989
30 5. Constitution of Tribunal
In a proceeding under section 122 of the Children and
Young Persons Act 1989 the Tribunal is to be constituted
by, or to include, a member who, in the opinion of the
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President, has knowledge of, or experience in, child welfare
matters.
PART 4--COMMUNITY SERVICES ACT 1970
6. Constitution of Tribunal
5 In a proceeding under section 13F of the Community
Services Act 1970 the Tribunal is to be constituted by, or to
include, a member who, in the opinion of the President, has
knowledge of, or experience in, child welfare matters.
PART 5--CREDIT ENACTMENTS
10 7. Constitution of Tribunal in certain proceedings
In a proceeding under section 85 or 86 of the Credit Act
1984 or section 101 of the Consumer Credit (Victoria)
Code, a party may require that the Tribunal be constituted
by a presidential member, whether with or without others.
15 8. Representation
(1) A natural person who is a party to a proceeding under a
credit enactment may be represented in that proceeding
by--
(a) the Director; or
20 (b) a person employed in the Office of Fair Trading and
Business Affairs in the Department of Justice; or
(c) a professional advocate within the meaning of
section 62.
(2) This clause does not take away from any entitlement to
25 representation under section 62.
9. Referral to Director
(1) The Tribunal may request the Director to investigate any
matter that arises in a proceeding under a credit enactment.
(2) If a request is made under sub-clause (1)--
30 (a) the Director may; or
(b) if the Minister administering the credit enactment so
determines, the Director must--
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investigate the matter and, if he or she does so, must report
on the investigation to the Tribunal.
10. Any member of Tribunal may make a declaration
Despite anything to the contrary in section 124, a
5 declaration may be made in a proceeding under a credit
enactment by the Tribunal constituted by any member.
11. Reasons must be requested at time of decision
Despite anything to the contrary in section 117(2), the
Tribunal is not obliged to give a person written reasons for
10 an order made in a proceeding under a credit enactment
unless the person has made a request to the Tribunal for
written reasons for orders that may be made in the
proceeding before or at the time of the giving or notification
of the Tribunal's decision in the proceeding.
15 PART 6--DOMESTIC BUILDING CONTRACTS ACT 1995
12. Referral to Director, Building Control Commission or Building
Practitioners Board
(1) The Tribunal may request the Director, the Building Control
Commission or the Building Practitioners Board to
20 investigate any matter that arises in a proceeding under the
Domestic Building Contracts Act 1995.
(2) The Director, Commission or Board may investigate a
matter on request under sub-clause (1) and, if the Director,
Commission or Board does so, they must report on the
25 investigation to the Tribunal.
PART 7--EQUAL OPPORTUNITY ACT 1995
13. Constitution of Tribunal in special complaint proceedings
In a proceeding in respect of a special complaint under
Division 5 of Part 7 of the Equal Opportunity Act 1995 a
30 party may require that the Tribunal be constituted by the
President (whether with or without others).
14. Unincorporated associations can be parties
(1) Section 61(1) does not apply to a proceeding under the
Equal Opportunity Act 19958.
35 (2) An unincorporated association that is a party to a
proceeding under the Equal Opportunity Act 1995 has the
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same right to representation in the proceeding as a body
corporate.
15. Commission is not a party to a review of its determination
Despite section 59(1)(b)(ii), the Equal Opportunity
5 Commission is not a party to a proceeding for review of a
determination made by it under section 119 of the Equal
Opportunity Act 1995 (expedited complaint).
16. Certain procedures and rights not to apply in respect of
determinations regarding expediting a complaint
10 (1) Nothing in section 45 (right to reasons) applies to a decision
being a determination of the Equal Opportunity Commission
under section 119 of the Equal Opportunity Act 1995.
(2) Sections 49, 50(3), 51(2)(d) and 51(3)(b) do not apply to a
proceeding for review of a determination under section 119
15 of the Equal Opportunity Act 1995.
17. Joinder of parties
The Tribunal may not make an order under section 60
joining a person as a party in any proceeding under section
109, 121 or 124 of the Equal Opportunity Act 1995.
20 18. Notification of commencement in certain section 83 matters
(1) If the Tribunal proposes to grant, renew or revoke an
exemption under section 83 of the Equal Opportunity Act
1995 on its own initiative, it must notify, in any manner it
thinks fit, all persons whose interests, in the opinion of the
25 Tribunal, may be affected by the proposed grant, renewal or
revocation.
(2) For the purposes of sub-clause (1)--
(a) "interests" means interests of any kind and is not
limited to proprietary, economic or financial interests;
30 (b) a reference to interests affected includes a reference to
interests that are directly or indirectly affected and
whether or not any other person's interests are also
affected by the proposed grant, renewal or revocation.
19. Notification of commencement of inquiry under section 158(3)
35 (1) If a matter is referred to the Tribunal for inquiry under
section 158(3) of the Equal Opportunity Act 1995, the
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principal registrar must notify, in the manner specified by
the Tribunal--
(a) any person alleged to have been discriminated
against; and
5 (b) any other person the Tribunal directs be notified.
(2) The Tribunal may direct that notification under sub-clause
(1) be done by the publication of an advertisement in the
manner specified by the Tribunal.
20. Notification in other proceedings
10 (1) If an application is made under section 109(1) (strike out),
section 121 (review), section 124 (expedited complaint) or
section 131 (interim order) or a referral under section 111
(Minister's referral) of the Equal Opportunity Act 1995,
the principal registrar must notify the Equal Opportunity
15 Commission.
(2) Sub-clause (1) does not apply in the case of an application
by the Equal Opportunity Commission under section 131 of
the Equal Opportunity Act 1995.
21. Withdrawal of proceeding
20 (1) Despite section 74(1), an applicant is not required to obtain
the leave of the Tribunal to withdraw an application or
referral under the Equal Opportunity Act 1995.
(2) Nothing in sub-clause (1) affects the Tribunal's power to
award costs in any proceeding that is withdrawn.
25 22. Commission may apply for interim injunction
The Equal Opportunity Commission may apply for an order
granting an interim injunction under section 123 in a
proceeding under the Equal Opportunity Act 1995
whether or not it is a party to that proceeding.
30 23. Compulsory conference
The presiding member at a compulsory conference in a
proceeding under the Equal Opportunity Act 1995 may
refer any matter to the Equal Opportunity Commission for
investigation, negotiation or conciliation.
35 24. Exemptions under section 83
(1) The Tribunal may determine to grant an exemption under
section 83 of the Equal Opportunity Act 1995 without a
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hearing whether or not the parties agree to dispense with the
hearing.
(2) For the avoidance of doubt, an exemption under section 83
of the Equal Opportunity Act 1995 is not an order of the
5 Tribunal.
25. Restriction on evidence in certain proceedings
(1) A party is not entitled to call or give oral evidence at a
hearing of an application under section 109, 121 or 124 of
the Equal Opportunity Act 1995, but is entitled to make
10 written or oral submissions.
(2) For the avoidance of doubt, the Tribunal may allow a party
to call or give evidence in the circumstances referred to in
sub-clause (1) if the Tribunal thinks fit.
26. Evidence of mediation not admissible even if parties agree
15 (1) Evidence of anything said or done in the course of a
mediation in a proceeding under the Equal Opportunity
Act 1995 is not admissible in any hearing before the
Tribunal in the proceeding, whether or not the parties agree
to the giving of the evidence.
20 (2) Section 92 does not apply to a proceeding under the Equal
Opportunity Act 1995.
27. Costs of special complaint proceedings
(1) The Tribunal may order the payment of costs in any
proceeding in respect of a special complaint under Division
25 5 of Part 7 of the Equal Opportunity Act 1995.
(2) Unless there are special circumstances, costs ordered under
sub-clause (1) must reflect--
(a) the costs reasonably incurred by the person in whose
favour the order for costs is made; and
30 (b) any other pecuniary loss incurred by the person
because of the proceeding.
(3) If a party that is the State, an agency of the State or a person
funded in whole or part by the State requires the Tribunal to
be constituted by the President for the purposes of a
35 proceeding in respect of a special complaint, the Tribunal
must, unless there are special circumstances and regardless
of who succeeds in the proceeding, order that party to pay
an amount fixed by the Tribunal that reasonably reflects the
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additional costs incurred by the other party as a result of the
complaint having been treated as a special complaint.
(4) If the President determines that a complaint is not a special
complaint, the Tribunal must order that the party who
5 required the Tribunal to be constituted by the President for
the purposes of the proceeding in respect of the complaint
must pay all costs relating to the making of that
determination.
(5) Section 109 does not apply to a proceeding in respect of a
10 special complaint.
28. Settlement offers
Sections 112 to 115 do not apply to a proceeding under the
Equal Opportunity Act 1995.
PART 8--FREEDOM OF INFORMATION ACT 1982
15 29. Statement of reasons for decision
A decision-maker complies with section 46 in relation to a
request for a statement of reasons for a decision made under
the Freedom of Information Act 1982 if the decision-
maker gives, or has given, the person who made the request
20 a notice that complies with section 27 of that Act.
30. Tribunal file in FOI proceeding not open for inspection
Despite anything to the contrary in section 146, the file kept
by the principal registrar under that section in a proceeding
under the Freedom of Information Act 1982 is not open
25 for inspection or copying by any person.
PART 9--GUARDIANSHIP AND ADMINISTRATION ACT 1986
31. Constitution of Tribunal for proceedings
(1) Section 64(2) does not apply to a proceeding under the
Guardianship and Administration Act 1986, other than a
30 proceeding for a temporary order under Division 4 of Part 4
or Division 4 of Part 5.
(2) The Tribunal is to be constituted for the purposes of a
proceeding for a temporary order under Division 4 of Part 4
or Division 4 of Part 5 of the Guardianship and
35 Administration Act 1986 by--
(a) a presidential member; or
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(b) a member who is a legal practitioner--
sitting alone.
32. Notification of commencement
(1) Despite section 72(3), the Tribunal cannot make an order
5 dispensing with service of a copy of an application under
the Guardianship and Administration Act 1986 on the
Public Advocate.
(2) The Tribunal must inform the Public Advocate if it makes
an order under section 72(3) dispensing with service of a
10 copy of an application under the Guardianship and
Administration Act 1986 for a guardianship order or an
administration order (including a temporary order) on the
person in respect of whom the application is made.
33. Public Advocate may intervene or be joined
15 The Public Advocate--
(a) may intervene at any time; and
(b) is entitled to be joined as a party--
in a proceeding under the Guardianship and
Administration Act 1986.
20 34. Withdrawal of application does not preclude future application
Section 74(2)(d) does not apply to a proceeding under the
Guardianship and Administration Act 1986.
35. Referral to administrators for report
(1) The Tribunal may refer any matter relating to a proceeding
25 under the Guardianship and Administration Act 1986 to
a government department, public authority, service provider,
the Public Advocate or a guardian or administrator
appointed under that Act for investigation and report.
(2) A person or body to whom a matter is referred under this
30 clause must investigate and report to the Tribunal on that
matter.
(3) The Tribunal must not determine a question referred to a
person or body under this clause unless the Tribunal has
received and considered the report of the person or body.
35 36. Proceeding not invalidated by failure to give notice
A hearing or order of the Tribunal in a proceeding under the
Guardianship and Administration Act 1986 is not
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invalidated or affected only because of a failure to give
notice--
(a) to a person in respect of whom an application has
been made or to a represented person (within the
5 meaning of that Act) if the Tribunal--
(i) has dispensed with the requirement for notice
to be given to that person; and
(ii) has notified the Public Advocate that it has
done so; or
10 (b) to any other person.
37. Confidentiality of proceedings
(1) Unless the Tribunal orders otherwise, a person must not
publish or broadcast or cause to be published or broadcast
any report of a proceeding under the Guardianship and
15 Administration Act 1986 that identifies, or could
reasonably lead to the identification of, a party to the
proceeding.
Penalty: 20 penalty units.
(2) The Tribunal may make an order under sub-clause (1) only
20 if it considers that it would be in the public interest to do so.
(3) An order of the Tribunal under sub-clause (1) must specify
that pictures are not to be taken of any party to the
proceeding.
38. Settlement offers
25 Sections 112 to 115 do not apply to a proceeding under the
Guardianship and Administration Act 1986.
PART 10--HERITAGE ACT 19959
39. National Trust must be given opportunity to be heard
The National Trust (within the meaning of the Heritage Act
30 1995)--
(a) may intervene at any time; and
(b) is entitled to be joined as a party--
in a proceeding under Division 1 of Part 4 of that Act.
PART 11--HOUSE CONTRACTS GUARANTEE ACT 1987
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40. Referral to Director, Building Control Commission or Building
Practitioners Board
(1) The Tribunal may request the Director, the Building Control
Commission or the Building Practitioners Board to
5 investigate any matter that arises in a proceeding under the
House Contracts Guarantee Act 1987.
(2) The Director, Commission or Board may investigate a
matter on request under sub-clause (1) and, if the Director,
Commission or Board does so, they must report on the
10 investigation to the Tribunal.
PART 12--INSTRUMENTS ACT 1958
41. Public Advocate may intervene or be joined
The Public Advocate--
(a) may intervene at any time; and
15 (b) is entitled to be joined as a party--
in a proceeding under section 118 of the Instruments Act
1958.
42. Referral to administrators for report
(1) The Tribunal may refer any matter relating to a proceeding
20 under section 118 of the Instruments Act 1958 to a
government department, public authority, service provider,
the Public Advocate or a guardian or administrator
appointed under that Act for investigation and report.
(2) A person or body to whom a matter is referred under this
25 clause must investigate and report to the Tribunal on that
matter.
(3) The Tribunal must not determine a question referred to a
person or body under this clause unless the Tribunal has
received and considered the report of the person or body.
30 43. Proceeding not invalidated by failure to give notice
A hearing or order of the Tribunal in a proceeding under
section 118 of the Instruments Act 1958 is not invalidated
or affected only because of a failure to give notice--
(a) to a person in respect of whom an application has
35 been made, if the Tribunal--
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(i) has dispensed with the requirement for notice
to be given to that person; and
(ii) has notified the Public Advocate that it has
done so; or
5 (b) to any other person.
44. Confidentiality of proceedings
(1) Unless the Tribunal orders otherwise, a person must not
publish or broadcast or cause to be published or broadcast
any report of a proceeding under section 118 of the
10 Instruments Act 1958 that identifies, or could reasonably
lead to the identification of, a party to the proceeding.
Penalty: 20 penalty units.
(2) The Tribunal may make an order under sub-clause (1) only
if it considers that it would be in the public interest to do so.
15 (3) An order of the Tribunal under sub-clause (1) must specify
that pictures are not to be taken of any party to the
proceeding.
PART 13--LAND ACQUISITION AND COMPENSATION ACT 1986
45. Documents to accompany application
20 An application under section 80(a) of the Land Acquisition
and Compensation Act 1986 must be accompanied by--
(a) the notice of acquisition (if appropriate); and
(b) the initial offer of compensation made by the
Authority (if any); and
25 (c) the claim made by the claimant; and
(d) the reply (if any) of the Authority to the claim.
46. Costs
Nothing in section 109 applies to a proceeding under the
Land Acquisition and Compensation Act 198610.
30 PART 14--MEDICAL TREATMENT ACT 1988
47. Public Advocate may intervene or be joined
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The Public Advocate--
(a) may intervene at any time; and
(b) is entitled to be joined as a party--
in a proceeding under section 5C of the Medical Treatment
5 Act 1988.
48. Referral to administrators for report
(1) The Tribunal may refer any matter relating to a proceeding
under section 5C of the Medical Treatment Act 1988 to a
government department, public authority, service provider,
10 the Public Advocate or a guardian or administrator
appointed under that Act for investigation and report.
(2) A person or body to whom a matter is referred under this
clause must investigate and report to the Tribunal on that
matter.
15 (3) The Tribunal must not determine a question referred to a
person or body under this clause unless the Tribunal has
received and considered the report of the person or body.
49. Proceeding not invalidated by failure to give notice
A hearing or order of the Tribunal in a proceeding under
20 section 5C of the Medical Treatment Act 1988 is not
invalidated or affected only because of a failure to give
notice--
(a) to a person in respect of whom an application has
been made, if the Tribunal--
25 (i) has dispensed with the requirement for notice
to be given to that person; and
(ii) has notified the Public Advocate that it has
done so; or
(b) to any other person.
30 50. Confidentiality of proceedings
(1) Unless the Tribunal orders otherwise, a person must not
publish or broadcast or cause to be published or broadcast
any report of a proceeding under section 5C of the Medical
Treatment Act 1988 that identifies, or could reasonably
35 lead to the identification of, a party to the proceeding.
Penalty: 20 penalty units.
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(2) The Tribunal may make an order under sub-clause (1) only
if it considers that it would be in the public interest to do so.
(3) An order of the Tribunal under sub-clause (1) must specify
that pictures are not to be taken of any party to the
5 proceeding.
PART 15--MINERAL RESOURCES DEVELOPMENT ACT 1990
51. Costs
Nothing in section 109 applies to a proceeding under the
Mineral Resources Development Act 199011.
10 PART 16--PLANNING ENACTMENTS
52. Constitution of Tribunal
(1) The Tribunal is to be constituted for the purposes of a
proceeding under a planning enactment by--
(a) one member who has sound knowledge of, and
15 experience in, planning or environmental practice in
Victoria; or
(b) if it is constituted by 2 members, at least one member
who has sound knowledge of, and experience in,
planning or environmental practice in Victoria; or
20 (c) if it is constituted by 3, 4 or 5 members, at least 2
members who have sound knowledge of, and
experience in, planning or environmental practice in
Victoria.
(2) Section 64(2) does not apply to a proceeding under a
25 planning enactment
53. Decision-maker not obliged to give reasons
Nothing in section 45 applies to a decision under a planning
enactment.
54. Decision-maker not obliged to lodge documents
30 Nothing in section 49 applies to a decision under a planning
enactment.
55. Further notice if there is a failure to comply with legislation
(1) If in any proceeding under a planning enactment the
Tribunal considers that there has been a failure to comply
35 with any enactment, the Tribunal may direct that a specified
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party give notice or further notice of the proceeding to any
person, in the form and manner specified by the Tribunal.
(2) The Tribunal may adjourn the proceeding for the purpose of
allowing notice or further notice to be given.
5 (3) If the Tribunal directs that a responsible authority gives
notice or further notice under this clause, the Tribunal may
order that another party pay the responsible authority's costs
of giving the notice.
56. Parties to lodge grounds
10 (1) A person who wishes to contest a proceeding under a
planning enactment must lodge with the Tribunal, in
accordance with the rules, a statement of the grounds on
which the person intends to rely at the hearing of the
proceeding.
15 (2) Sub-clause (1) does not apply to a responsible authority in a
proceeding--
(a) for review of a decision of the authority--
(i) to refuse to grant a permit; or
(ii) to extend time within which any development is
20 to be commenced or completed; or
(b) in respect of the failure of the authority to grant a
permit.
(3) A copy of each statement lodged under sub-clause (1) must
be served on the applicant and the responsible authority.
25 (4) If a person fails to comply with this clause, the Tribunal
must not allow the person to be heard in the proceeding
unless it has obtained and considered the views of the
applicant and the responsible authority on whether or not
the person should be heard.
30 57. Intervention
(1) The relevant Minister may intervene at any time in a
proceeding under a planning enactment if he or she
considers that--
(a) the proceeding raises a major issue of policy; and
35 (b) in the case of a review brought under the Planning
and Environment Act 1987, the determination of the
review may have a substantial effect on the future
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planning of the area in which the land the subject of
the review is situated.
(2) For the avoidance of doubt, the relevant Minister may
intervene in a proceeding under a planning enactment after
5 the Tribunal has heard the proceeding but before it has
delivered its final determination in the proceeding.
(3) Section 73 does not apply to a proceeding under a planning
enactment.
(4) In this clause--
10 "relevant Minister" means the Minister administering the
planning enactment under which the proceeding is
brought.
58. Minister's call in powers in Planning and Environment Act
matters
15 (1) This clause applies to a proceeding for review of a decision
under the Planning and Environment Act 1987 if--
(a) the Tribunal has not commenced to hear the
proceeding; and
(b) the Minister administering the Planning and
20 Environment Act 1987 considers that--
(i) the proceeding raises a major issue of policy;
and
(ii) the determination of the proceeding may have a
substantial effect on the achievement or
25 development of planning objectives.
(2) The Minister administering the Planning and Environment
Act 1987 may--
(a) direct the principal registrar to refer a proceeding to
which this clause applies to the Governor in Council
30 for determination; or
(b) invite the Tribunal--
(i) to decline to hear the proceeding and refer it to
the Governor in Council for determination; or
(ii) to hear the proceeding but, without determining
35 it, refer it with recommendations to the
Governor in Council for determination.
(3) The Minister administering the Planning and Environment
Act 1987 cannot give a direction or invitation under sub-
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clause (2) later than 7 days before the date fixed for the
hearing of the proceeding unless the President directs
otherwise.
59. Call in power in other planning matters
5 (1) This clause applies to a proceeding for review of a decision
under a planning enactment other than the Planning and
Environment Act 1987 if--
(a) the Tribunal has not commenced to hear the
proceeding; and
10 (b) the Minister administering the relevant planning
enactment considers that the proceeding raises a
major issue of policy.
(2) The Minister administering the relevant planning enactment
may request the Minister administering the Planning and
15 Environment Act 1987 to--
(a) direct the principal registrar to refer a proceeding to
which this clause applies to the Governor in Council
for determination; or
(b) invite the Tribunal--
20 (i) to decline to hear the proceeding and refer it to
the Governor in Council for determination; or
(ii) to hear the proceeding but, without determining
it, refer it with recommendations to the
Governor in Council for determination.
25 (3) Subject to sub-clause (4), the Minister administering the
Planning and Environment Act 1987 must comply with a
request under sub-clause (2).
(4) The Minister administering the Planning and Environment
Act 1987 cannot give a direction or invitation under this
30 clause later than 7 days before the date fixed for the hearing
of the proceeding unless the President directs otherwise.
60. Tribunal may refer planning matters to Governor in Council
(1) This clause applies to a proceeding for review of a decision
under a planning enactment if, after the hearing of the
35 proceeding has begun, the Tribunal considers that--
(a) the proceeding raises a major issue of policy; and
(b) in the case of a proceeding for review of a decision
under the Planning and Environment Act 1987, the
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determination of the proceeding may have a
substantial effect on the achievement or development
of planning objectives.
(2) In a proceeding to which this clause applies, the Tribunal--
5 (a) may invite the Minister administering the Planning
and Environment Act 1987 to make submissions to
the Tribunal; and
(b) may continue to hear the proceeding but, without
determining it, refer it with recommendations to the
10 Governor in Council for determination.
61. Effect of referral to Governor in Council
(1) If a proceeding is referred to the Governor in Council under
clause 58, 59 or 60--
(a) the principal registrar must--
15 (i) give a copy of the recommendations that
accompanied the referral to each party to the
proceeding within a reasonable time after the
referral; and
(ii) make a copy of the recommendations available
20 during office hours for inspection by any
person without charge; and
(b) the Governor in Council may determine the
proceeding and make any orders in relation to the
proceeding that could have been made by the
25 Tribunal.
(2) An order made by the Governor in Council referred to in
sub-clause (1)(b) is deemed to be an order of the Tribunal.
62. Tribunal may disregard failures to comply
The Tribunal has jurisdiction to determine a proceeding
30 under a planning enactment despite any failure to comply
with the planning enactment or any other enactment and, in
doing so, may determine to disregard that failure if the
Tribunal considers it in the interests of justice to do so.
63. Costs
35 (1) In determining whether or not to make an order for costs in
a proceeding under the Planning and Environment Act
1987, the Tribunal may have regard to whether the
proceeding was brought primarily to secure or maintain a
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direct or indirect commercial advantage for the person who
brought the proceeding.
(2) Sub-clause (1) is in addition to the matters that the Tribunal
may have regard to under section 109(3).
5 64. Amendment of application
(1) This clause applies to the following proceedings--
(a) a proceeding for review of a decision under the
Planning and Environment Act 1987 of a
responsible authority in respect of an application for a
10 permit or the failure of a responsible authority to
grant a permit;
(b) a proceeding for review of a decision under the
Environment Protection Act 1970 in relation to--
(i) a determination of the Environment Protection
15 Authority or a delegated agency in respect of an
application for a works approval or licence; or
(ii) a failure of the Environment Protection
Authority or a delegated agency to determine
an application for a works approval or licence.
20 (2) At any time in a proceeding to which this clause applies the
Tribunal may make any amendment it thinks fit to the
application for the permit, works approval or licence the
subject of the proceeding.
(3) Without limiting the generality of sub-clause (2), the
25 Tribunal may make an amendment to an application for a
permit under the Planning and Environment Act 1987--
(a) as to a use or development different from the use or
development mentioned in the application;
(b) as to the land to the use or development of which the
30 application relates.
(4) This clause is in addition to, and does not limit or affect
section 127.
65. Extension of time
(1) The Tribunal must not extend the time for commencing a
35 proceeding under a planning enactment if--
(a) a proceeding in respect of the same or related facts
and circumstances has already been set down for
hearing; or
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(b) a permit, licence or works approval has been issued to
any person on or after the expiration of the time
appointed for lodging an application for review of the
decision to grant that permit, licence or approval.
5 (2) Sub-clause (1) does not apply if leave is granted under
section 82B of the Planning and Environment Act 1987.
66. Questions of law
(1) Despite section 107(1), if the Tribunal is constituted for the
purposes of a proceeding under a planning enactment
10 without a judicial member or a member who is a legal
practitioner, a question of law arising in the proceeding may
be decided--
(a) by the presiding member if the parties agree; or
(b) in accordance with the opinion of a judicial member
15 or a member who is a legal practitioner nominated by
the President.
(2) Section 107(3)(b) does not apply to a proceeding under a
planning enactment.
PART 17--RESIDENTIAL TENANCIES ACT 1997
20 67. Representation
Despite section 62(1)(b), a party to a proceeding for a
possession order under the Residential Tenancies Act 1997
may be represented by a professional advocate.
68. Notification not required for certain applications
25 Section 72 does not apply to an application under section
414 of the Residential Tenancies Act 1997 (application for
rent owing if tenant cannot be located).
69. Withdrawal of application
(1) Despite section 74(1), an applicant is not required to obtain
30 the leave of the Tribunal to withdraw an application under
the Residential Tenancies Act 1997.
(2) Nothing in sub-clause (1) affects the Tribunal's power to
award costs in any proceeding that is withdrawn.
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70. Member of Tribunal can mediate
(1) Section 88(6) does not apply to a proceeding under the
Residential Tenancies Act 1997.
(2) If the mediator is a member of the Tribunal, a party may
5 object to the mediator constituting the Tribunal (whether
with or without others) for the purpose of hearing the
proceeding.
(3) An objection under sub-clause (2) must be made to the
Tribunal before or at the commencement of the hearing.
10 71. Resolution of objection to certain members constituting the
Tribunal
(1) If a party to a proceeding under the Residential Tenancies
Act 1997 objects to the member who presided over a
compulsory conference in the proceeding, or to a mediator
15 in the proceeding, constituting the Tribunal for the purpose
of hearing the proceeding (whether with or without others),
the Tribunal must determine whether or not the member
may continue to constitute the Tribunal for that purpose.
(2) For the purpose of making a determination under sub-clause
20 (1), the Tribunal may be constituted (whether with or
without others) by the member against whom the objection
was made.
(3) Section 86(3) does not apply to a proceeding under the
Residential Tenancies Act 1997.
25 72. Referral to Director
(1) The principal registrar must refer an application under the
Residential Tenancies Act 1997 to the Director for
investigation and report if it is of a kind that the Director has
directed the principal registrar to refer.
30 (2) At any time before the hearing of an application under the
Residential Tenancies Act 1997 the principal registrar or
the Tribunal, at the request of a party, may refer the
application to the Director for investigation and report.
(3) Sub-clause (2) does not apply to an application for a
35 possession order.
(4) The Director must investigate and report to the Tribunal on
any application referred to him or her under this clause.
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(5) The Tribunal must not determine an application referred to
the Director unless the Tribunal has received and considered
the Director's report.
73. Amendment of application
5 With the consent of each party, the principal registrar may
amend an application in a proceeding under the Residential
Tenancies Act 1997 at any time before it is heard.
74. Evidence before Tribunal cannot be used in criminal
proceedings
10 Evidence before the Tribunal in a proceeding under the
Residential Tenancies Act 1997 cannot be used in criminal
proceedings except proceedings for an offence against this
Act or the Residential Tenancies Act 1997 or for perjury.
75. Any member of Tribunal may make a declaration
15 Despite anything to the contrary in section 124, a
declaration may be made in a proceeding under the
Residential Tenancies Act 1997 by the Tribunal
constituted by any member.
76. Reasons must be requested at time of decision
20 Despite anything to the contrary in section 117(2), the
Tribunal is not obliged to give a person written reasons for
an order made in a proceeding under the Residential
Tenancies Act 1997 unless the person has made a request to
the Tribunal for written reasons for orders that may be made
25 in the proceeding before or at the time of the giving or
notification of the Tribunal's decision in the proceeding.
77. Service on landlords
In addition to any manner of service provided for in section
140, a notice or other document in a proceeding under the
30 Residential Tenancies Act 1997 may be served on, or
given to, a landlord by--
(a) delivering it personally to the landlord's agent or to
the person who usually collects the rent; or
(b) sending it by post to the landlord's agent at the agent's
35 usual place of business; or
(c) giving it to a person apparently employed in the office
of the landlord's agent.
PART 18--SMALL CLAIMS ACT 1973
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78. Representation
(1) A party to a proceeding under the Small Claims Act 1973
may be represented by a professional advocate only if--
(a) the Tribunal is satisfied that none of the other parties
5 will be unfairly disadvantaged if the representation is
allowed; and
(b) either--
(i) all parties to the proceeding agree; or
(ii) the Tribunal directs that the representation be
10 allowed.
(2) Section 62(1)(b) does not apply to a proceeding under the
Small Claims Act 1973.
79. Notification of commencement
(1) The principal registrar must serve a copy of an application
15 under the Small Claims Act 1973, within the time specified
in the rules--
(a) on the respondent; and
(b) on every person who appears from the application to
have a sufficient interest in a resolution of the dispute
20 to which the application relates; and
(c) on any other person that the Tribunal directs be given
notice of the proceeding.
(2) The Tribunal may give a direction under sub-clause (1)(c)
only if satisfied that the person appears to have a sufficient
25 interest in a resolution of the dispute to which the
application relates.
(3) Section 72 does not apply to an application under the Small
Claims Act 1973.
80. Withdrawal of application
30 Despite section 74(1), an applicant is not required to obtain
the leave of the Tribunal to withdraw an application under
the Small Claims Act 1973.
81. Joinder of parties
The Tribunal must join a person as a party to a proceeding
35 under the Small Claims Act 1973 if the person satisfies the
Tribunal that the person has a sufficient interest in a
resolution of the dispute to which the proceeding relates.
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82. Tribunal cannot extend time for commencing proceedings
Section 126(1) does not apply to a small claim within the
meaning of the Small Claims Act 1973.
83. Member of Tribunal can mediate
5 (1) Section 88(6) does not apply to a proceeding under the
Small Claims Act 1973.
(2) If the mediator is a member of the Tribunal a party may
object to the mediator constituting the Tribunal (whether
with or without others) for the purpose of hearing the
10 proceeding.
(3) An objection under sub-clause (2) must be made to the
Tribunal before or at the commencement of the hearing.
84. Resolution of objection to certain members constituting the
Tribunal
15 (1) If a party to a proceeding under the Small Claims Act 1973
objects to the member who presided over a compulsory
conference in the proceeding, or to a mediator in the
proceeding, constituting the Tribunal for the purpose of
hearing the proceeding (whether with or without others), the
20 Tribunal must determine whether or not the member may
continue to constitute the Tribunal for that purpose.
(2) For the purpose of making a determination under sub-clause
(1), the Tribunal may be constituted (whether with or
without others) by the member against whom the objection
25 was made.
(3) Section 86(3) does not apply to a proceeding under the
Small Claims Act 1973.
85. Costs
(1) The Tribunal cannot order costs in a proceeding under the
30 Small Claims Act 1973, except in a review of a
determination under section 120 in respect of a proceeding
under that Act.
(2) Section 79 does not apply to a review of a determination
under section 120 in respect of a proceeding under the
35 Small Claims Act 1973.
86. Notification of lodgement of money
If an applicant lodges money with the principal registrar
under section 20A of the Small Claims Act 1973 in respect
of a small claim, the applicant must serve a notice
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containing details of that lodgement with the copy of the
application in respect of that claim.
87. Reasons must be requested at time of decision
Despite anything to the contrary in section 117(2), the
5 Tribunal is not obliged to give a person written reasons for
an order made in a proceeding under the Small Claims Act
1973 unless the person has made a request to the Tribunal
for written reasons for orders that may be made in the
proceeding before or at the time of the giving or notification
10 of the Tribunal's decision in the proceeding.
PART 19--TAXING ACTS
88. Tribunal need not be constituted by a lawyer
Section 64(2) does not apply to a proceeding under a taxing
Act.
15 89. Information to be provided to the Tribunal
(1) If the Commissioner of State Revenue is requested to refer a
decision to the Tribunal under a taxing Act, the
Commissioner must lodge with the Tribunal--
(a) written notice of the request; and
20 (b) 2 copies of all documents on file in the
Commissioner's office relating to the relevant--
(i) assessment or decision; and
(ii) objection; and
(iii) disallowance of objection.
25 (2) Section 49 does not apply to a proceeding under a taxing
Act for review of a decision of the Commissioner of State
Revenue.
90. Compulsory conference in tax proceedings
In a proceeding under a taxing Act for review of a decision
30 of the Commissioner of State Revenue, a member may only
require the parties to attend a compulsory conference with
the consent of the Commissioner.
91. Costs
(1) Each party is to bear their own costs in a proceeding under a
35 taxing Act.
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(2) Division 8 of Part 4 does not apply to a proceeding under a
taxing Act.
PART 20--TRANSPORT ACCIDENT ACT 1986
92. Costs
5 Nothing in section 109 applies to a proceeding under the
Transport Accident Act 198612.
93. Settlement offers
Despite section 112(1)(a), sections 112 to 115 apply to a
proceeding for review of a decision under section 77 of the
10 Transport Accident Act 1986.
94. Tribunal cannot alter time limits
Section 126(1) and (2)(a) do not apply to a proceeding
under the Transport Accident Act 1986.
PART 21--VALUATION OF LAND ACT 1960
15 95. Tribunal need not be constituted by a lawyer
Section 64(2) does not apply to a proceeding under the
Valuation of Land Act 1960.
96. Information to be provided to the Tribunal
(1) In the case of a referral to the Tribunal under section 22(1)
20 of the Valuation of Land Act 1960, the rating authority
must, within 1 month after receiving the notice referred to in
that section, forward to the principal registrar the notice of
objection and copies of any notices given in connection with
the objection under section 21 of that Act.
25 (2) Section 49 does not apply in the case of a referral under
section 22(1) of the Valuation of Land Act 1960.
97. Notification of commencement
Section 72 does not apply to a proceeding under section
22(1) of the Valuation of Land Act 1960.
30 98. Questions of law
(1) Despite section 107(1), if the Tribunal is constituted for the
purposes of a proceeding under the Valuation of Land Act
1960 without a judicial member or a member who is a legal
practitioner, a question of law arising in the proceeding may
35 be decided--
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(a) by the presiding member if the parties agree; or
(b) in accordance with the opinion of a judicial member
or a member who is a legal practitioner nominated by
the President.
5 (2) Section 107(3)(b) does not apply to a proceeding under the
Valuation of Land Act 1960.
99. Costs
Nothing in section 109 applies to a proceeding under the
Valuation of Land Act 196013.
10 __________________
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SCHEDULE 2
Section 157(2)
SUBJECT MATTER FOR RULES
Establishing divisions of the Tribunal and establishing lists within those
5 divisions.
Procedure for making applications and referrals to the Tribunal.
Procedure for withdrawing applications and referrals.
The manner of giving security for costs.
Procedure for calling in experts.
10 Procedure for referring questions to special referees.
The taking of evidence under section 103.
Issuing and service of summonses.
Assessments of costs, including scales of costs to be allowed.
Procedure for filing orders of the Tribunal with a court for enforcement.
15 Procedure for applying for re-opening of an order, including time limits.
Form and content and procedure for maintaining the register of proceedings.
Classes of persons who are disqualified from being professional advocates
for the purposes of section 62.
Service of documents.
20 Contents of register of proceedings and availability and procedure for
inspecting and obtaining copies of register of proceedings and proceeding
files.
Procedure for making and accepting settlement offers under sections 112,
113 and 114.
25
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Notes
Act No.
NOTES
1
Section 101 empowers the Tribunal to order that certain information not be
published. Section 133 makes it an offence not to comply with the
Tribunal's order.
2
In particular, see clauses 4, 16, 29, 53, 54, 90 and 97.
3
The Tribunal's original jurisdiction consists primarily of functions conferred
on the Tribunal by enabling enactments for the Tribunal to make a first-
instance decision. The jurisdiction includes original disciplinary
jurisdiction, that is, the Tribunal's jurisdiction under various Acts to hold
inquiries or otherwise hear disciplinary matters at first-instance.
4
However, sections 53 and 54 require the Tribunal not to disclose certain
matter contained in material lodged with it under this section.
5
Section 102 of the Evidence Act 1958 provides that an affirmation can be
made instead of an oath. Section 38 of the Interpretation of Legislation
Act 1984 provides that a reference to "oath" includes a reference to
"affirmation" and a reference to "affidavit" includes a reference to
"declaration".
6
Section 134 creates an offence of failing to comply with a summons.
7
Rules made under this section are statutory rules for the purposes of the
Subordinate Legislation Act 1994 (see paragraph (b) of the definition of
"statutory rule" in section 3 of that Act).
8
Section 208 of the Equal Opportunity Act 1995 contains provisions for
unincorporated associations in proceedings under that Act.
9
Sections 78 and 81 of the Heritage Act 1995 give the Minister
administering that Act a call-in power in respect of proceedings before
the Tribunal under that Act.
10
Section 91 of the Land Acquisition and Compensation Act 1986 sets out
the Tribunal's powers with respect to costs in proceedings under that Act.
11
Section 88(3) of the Mineral Resources Development Act 1990 sets out
the Tribunal's powers with respect to costs in proceedings under that Act.
12
Section 79 of the Transport Accident Act 1986 sets out the Tribunal's
powers with respect to costs in proceedings under that Act.
13
Section 25(3) of the Valuation of Land Act 1960 sets out the Tribunal's
powers with respect to costs in proceedings under that Act.
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By Authority. Government Printer for the State of Victoria.
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