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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
State Administrative Tribunal Bill 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. What it means to bring or conduct proceeding
vexatiously 7
5. Enabling Act prevails 7
6. Crown bound 7
Part 2 -- The State Administrative
Tribunal
7. Tribunal established 8
8. The Tribunal's jurisdiction 8
9. Main objectives of the Tribunal 8
10. Tribunal to operate throughout the State 8
11. President specifies who constitutes the Tribunal 8
12. Contemporaneous exercise of Tribunal's jurisdiction 11
Part 3 -- Jurisdiction of the Tribunal
Division 1 -- Preliminary matters
13. Source of jurisdiction 12
14. Kinds of jurisdiction 12
Division 2 -- Original jurisdiction
15. What comes within original jurisdiction 12
16. Exercising original jurisdiction 12
213--2 page i
State Administrative Tribunal Bill 2003
Contents
Division 3 -- Review jurisdiction
Subdivision 1 -- General provisions
17. What comes within review jurisdiction 13
18. Exercising review jurisdiction 13
19. Relationship of statutory right of review to judicial
review 13
Subdivision 2 -- Information about reviewable
decision
20. Advice of decision and right to have it reviewed 15
21. Statement of reasons for decision 16
22. Tribunal may order decision-maker to provide reasons 17
23. Exceptions to what has to be provided 17
24. Provision of documents and material by
decision-maker 17
Subdivision 3 -- The review
25. Effect of proceeding on reviewable decision 18
26. Restriction on powers of decision-maker after review
commenced 19
27. Nature of the hearing 19
28. Considering government policy 20
29. Powers of Tribunal on review 20
30. Decision-maker to assist Tribunal 21
31. Tribunal may invite decision-maker to reconsider 22
Part 4 -- Tribunal's procedures
Division 1 -- Introduction
32. Practice and procedure, generally 23
33. Practice notes 25
34. Directions 25
35. Obtaining information from third parties 26
36. Parties 26
37. Intervening in proceeding 27
38. Joining as a party 27
39. Representation 27
40. Tribunal may appoint representative or guardian 28
41. Interpreters 29
Division 2 -- Preliminary procedures
42. Commencing proceeding 29
43. Fee for commencing proceeding 29
page ii
State Administrative Tribunal Bill 2003
Contents
44. Rejecting an application or accepting an application
conditionally 29
45. Who has to be given a copy of an application 30
46. Dismissing proceeding on withdrawal or for want of
prosecution 31
47. Unjustified proceedings 32
48. Conduct of proceeding causing disadvantage 32
49. Restriction on new application 33
50. More appropriate forum 33
51. Consolidation of proceedings 34
52. Compulsory conference 34
53. Failure to attend compulsory conference 35
54. Mediation 35
55. Evidence of certain things inadmissible 36
56. Settlement 37
Division 3 -- Proceedings and hearings
57. Presiding member 37
58. Decision of Tribunal if 2 or more sitting members 38
59. Deciding questions of law 38
60. Electronic hearings and proceedings without hearings 40
61. Public hearings 40
62. Publication of information from or about a proceeding 41
63. Notice of hearings 42
64. Tribunal may call on expert or professional assistance 42
65. Special referees 42
66. Summoning witness 43
67. Powers relating to witnesses 43
68. Privilege against self-incrimination 44
69. Other claims of privilege 45
70. Oaths and affirmations 45
71. Authorising person to take evidence 45
72. Dealing with things produced 46
Division 4 -- Decisions made by Tribunal
73. Conditional and ancillary orders and directions 46
74. Form of decision 46
75. To whom copy of written decision has to be given 47
76. Time limit for reserved decision 47
77. Reasons for final decision 47
78. Written reasons may be requested 47
79. Written decision or reasons using transcript 48
page iii
State Administrative Tribunal Bill 2003
Contents
80. Validity of decision 48
81. When decision has effect 48
82. Correcting mistakes 48
83. Tribunal may review its decision if person was absent 49
84. Enforcement of monetary order 50
85. Enforcement of decision other than monetary order 50
Division 5 -- Costs
86. Costs of parties and others 51
87. Costs of proceeding 51
88. Amount of costs 52
Division 6 -- Other procedural provisions
89. Injunction 52
90. Declaration 53
91. Relief from procedural requirements 54
92. Entry and inspection 54
93. Tribunal to give Supreme Court documents and things 55
Division 7 -- Offences
94. Failing to comply with decision 57
95. Failing to comply with summons 57
96. Failing to give evidence as required 58
97. Giving false or misleading information 58
98. Misbehaviour and other conduct 58
99. Contempt 59
Division 8 -- Arrest warrants
100. Exercise of powers under this Division 59
101. Arrest 59
102. Conditional release from custody 60
103. Review by Supreme Court 61
Part 5 -- Appeals from Tribunal's
decisions
104. Appeal from Tribunal's decision 62
105. Effect of decision against which appeal made 63
page iv
State Administrative Tribunal Bill 2003
Contents
Part 6 -- Tribunal's membership and
other provisions
Division 1 -- Members of the Tribunal
Subdivision 1 -- Kinds of members
106. Tribunal members 64
Subdivision 2 -- President
107. Appointment of President 64
108. Tenure of President's office 64
109. Vacating office prematurely 65
110. President's status as Supreme Court Judge 65
Subdivision 3 -- Deputy President
111. Appointment of Deputy President 66
112. Tenure of Deputy President's office 66
113. Vacating office prematurely 66
114. Deputy President's status as District Court Judge 67
Subdivision 4 -- Other members
115. Appointment of non-judicial members 67
116. Tenure of non-judicial office 68
117. Conditions of service as non-judicial member 69
118. Outside employment prohibited 69
119. Code of conduct 70
120. Suspension of non-judicial member 70
121. Why termination may be recommended 71
122. Investigation of non-judicial member 71
123. Action on investigator's report 71
124. Deciding whether to recommend termination 72
125. Vacating office prematurely 72
Division 2 -- Acting and supplementary members
Subdivision 1 -- Acting President
126. Appointment to act as President 73
127. Terminating acting prematurely 74
128. Acting President's status as Supreme Court Judge 74
129. Deputy President may sometimes act as President 75
130. Deputy President's allowance for acting as President 75
131. Consequences of acting 75
Subdivision 2 -- Acting Deputy President
132. Appointment to act as Deputy President 75
page v
State Administrative Tribunal Bill 2003
Contents
133. Terminating acting prematurely 76
134. Acting Deputy President's status as District Court
Judge 77
135. Consequences of acting 77
Subdivision 3 -- Supplementary judicial members
136. Supplementary President 77
137. Supplementary President's status as Supreme Court
Judge 78
138. Supplementary Deputy Presidents 79
139. Supplementary Deputy President's status as District
Court Judge 79
Division 3 -- Other matters about Tribunal
members
140. Fixing the period of appointment 80
141. Training 80
142. Disclosure of interests 80
143. Completion of matters 81
Part 7 -- Administration
144. Responsibility for administration of Act 82
145. President to advise Minister 82
146. Executive officer and other staff of Tribunal 82
147. Delegation by judicial member 83
148. Annual reports of the Tribunal 83
149. Laying before House of Parliament that is not sitting 84
Part 8 -- Other matters
150. Official seal 85
151. Judicial notice 85
152. Validity of decisions 85
153. Register of proceedings 86
154. Publication of Tribunal's decisions 86
155. Secrecy 87
156. Protection from disclosure by others 88
157. Whether disclosure contrary to public interest 88
158. How Tribunal is to deal with protected matter 90
159. Application of the Freedom of Information Act 1992 90
160. Immunity 90
161. Protection from liability 91
162. Protection for compliance with this Act 92
page vi
State Administrative Tribunal Bill 2003
Contents
163. Proceedings for defamation not to lie 92
164. General principles governing transfer of jurisdiction 92
165. Regulations 95
166. Tribunal's rules 95
167. Rules Committee 95
Part 9 -- Minor amendments to other
Acts
168. Constitution Acts Amendment Act 1899 amended 97
169. Interpretation Act 1984 amended 97
170. Legal Representation of Infants Act 1977 amended 98
171. Parliamentary Commissioner Act 1971 amended 98
Defined Terms
page vii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
State Administrative Tribunal Bill 2003
A Bill for
An Act to establish a tribunal with jurisdiction under this and other
Acts to review certain administrative decisions and deal with certain
other matters, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
State Administrative Tribunal Bill 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the State Administrative Tribunal
Act 2003.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Terms used in this Act
10 (1) In this Act, unless the contrary intention appears --
"appear" at a hearing means to appear in person or participate
in a way allowed under this Act;
"applicant" means --
(a) in the context of the Tribunal's review jurisdiction,
15 the person who --
(i) applies to the Tribunal for a review;
(ii) otherwise brings a matter before the Tribunal;
or
(iii) requests, requires, or otherwise seeks that a
20 matter be referred to, or otherwise brought
before, the Tribunal;
(b) in any other context, the person who --
(i) brings a matter before the Tribunal; or
(ii) requests, requires, or otherwise seeks that a
25 matter be referred to, or otherwise brought
before, the Tribunal,
except that it does not include a person who is required by
an enabling Act or section 44(3) to refer a matter to the
page 2
State Administrative Tribunal Bill 2003
Preliminary Part 1
s. 3
Tribunal, or otherwise bring a matter before the Tribunal,
as sought by another person;
"application" means --
(a) in the context of the Tribunal's review jurisdiction --
5 (i) an application by an applicant for a review; or
(ii) a referral or other means of bringing a matter
before the Tribunal by, or as sought by, an
applicant;
(b) in any other context, a referral or other means of
10 bringing a matter before the Tribunal by, or as sought
by, an applicant;
"chief executive officer" means the chief executive officer
under the Public Sector Management Act 1994 of the
Department;
15 "decision" of the Tribunal includes an order, direction, or
determination of the Tribunal;
"decision-maker" means a person who makes a reviewable
decision;
"Department" means the department principally assisting the
20 Minister in the administration of this Act;
"Deputy President" means a Deputy President of the Tribunal;
"enabling Act" means another Act, or a portion of another Act,
under which jurisdiction is conferred on the Tribunal and,
if relevant, it includes subsidiary legislation under that
25 other Act;
"executive officer" means the officer made available under
section 146(1) to perform the functions under this Act of
the executive officer of the Tribunal;
"exempt document" has the meaning given to that term in the
30 Glossary at the end of the Freedom of Information
Act 1992;
"final decision" means a decision of the Tribunal that disposes
of the matter raised in the application;
page 3
State Administrative Tribunal Bill 2003
Part 1 Preliminary
s. 3
"judicial member" means the President or a Deputy President;
"legal experience" means --
(a) standing and practice in the State as a legal
practitioner;
5 (b) standing and practice in another State or a Territory
as a barrister or solicitor of the Supreme Court of that
State or Territory;
(c) judicial service (including service as a judge of a
court, a magistrate or other judicial officer) in the
10 State or elsewhere in a common law jurisdiction; or
(d) a combination of 2 or more kinds of legal experience
mentioned in paragraphs (a) to (c);
"legal practitioner" mean a person admitted and entitled to
practise as a barrister and solicitor of the Supreme Court;
15 "legally qualified member" means --
(a) a judicial member; or
(b) a non-judicial member who is a qualified person and
has had not less than 5 years' legal experience;
"member of staff " of the Tribunal refers to the executive
20 officer and other officers of the Department made available
under section 146(2);
"monetary order" means an order of the Tribunal requiring the
payment of money, and includes --
(a) an order for the payment of a fine or other pecuniary
25 penalty; and
(b) an order under Part 4 Division 5;
"non-judicial member" means a member of the Tribunal who
is not the President or a Deputy President;
"ordinary member" means a member of the Tribunal who is
30 not the President, a Deputy President, or a senior member;
"original jurisdiction" of the Tribunal means its jurisdiction
other than its review jurisdiction;
page 4
State Administrative Tribunal Bill 2003
Preliminary Part 1
s. 3
"party" has the meaning given to that term in section 36;
"President" means the President of the Tribunal;
"presiding member" means the sitting member of the Tribunal
who --
5 (a) alone constitutes the Tribunal for dealing with the
matter concerned; or
(b) presides at a proceeding of the Tribunal for dealing
with the matter concerned;
"protected matter" means --
10 (a) any information or document to which a certificate
under section 157(2) applies, except to the extent that
an order of the Tribunal under section 157(4) that its
disclosure would not be contrary to the public interest
has effect; or
15 (b) an exempt document;
"public sector employee" has the meaning given to the term
"employee" in section 3(1) of the Public Sector
Management Act 1994;
"qualified person" means a person who --
20 (a) is on the roll of practitioners of the Supreme Court; or
(b) is a practising barrister of the High Court of
Australia;
"review jurisdiction" of the Tribunal means its jurisdiction
described in section 17(1);
25 "reviewable decision" has the meaning given to that term in
section 17(3);
"Rules Committee" has the meaning given to that term in
section 167;
"senior member" means a non-judicial member appointed as a
30 senior member of the Tribunal;
page 5
State Administrative Tribunal Bill 2003
Part 1 Preliminary
s. 3
"sitting member" of the Tribunal means a person who
constitutes, or is one of the persons constituting, the
Tribunal for dealing with the matter concerned;
"Tribunal" means the State Administrative Tribunal
5 established by this Act and constituted in accordance with
this Act or an enabling Act;
"Tribunal member" means a person who is a member of the
Tribunal under Part 6;
"vexatiously", in the context of bringing or conducting a
10 proceeding, has the meaning given in section 4;
"vocational regulatory body" means a body which, under an
enabling Act prescribed by regulations for the purposes of
this definition, exercises control over a person's capacity to
lawfully pursue a vocation, but does not include the
15 Tribunal;
"witness" means a person who appears before the Tribunal to
give evidence, whether the person has been summoned to
appear or appears without being summoned.
(2) Where section 44(3) or (4) gives jurisdiction to the Tribunal to
20 deal with a matter, references in this Act to the enabling Act are
to be disregarded in relation to that matter.
(3) If under an enabling Act a person's failure or omission to do
something is reviewable under this Act as a decision --
(a) this Act applies as if that person had made that decision;
25 and
(b) any provision of the enabling Act as to when the
decision is taken to have been made has effect.
(4) A reference in this Act to the making of an application to the
Tribunal includes a reference to a matter being referred to or
30 otherwise brought before the Tribunal.
page 6
State Administrative Tribunal Bill 2003
Preliminary Part 1
s. 4
4. What it means to bring or conduct proceeding vexatiously
A person brings or conducts a proceeding vexatiously if it
would result in the proceeding being "vexatious proceedings" as
defined in the Vexatious Proceedings Restriction Act 2002
5 section 3.
5. Enabling Act prevails
If there is any inconsistency between this Act and an enabling
Act, the enabling Act prevails.
6. Crown bound
10 This Act binds the Crown in right of the State and, subject to the
limits of the legislative power of the State, the Crown in all its
other capacities.
page 7
State Administrative Tribunal Bill 2003
Part 2 The State Administrative Tribunal
s. 7
Part 2 -- The State Administrative Tribunal
7. Tribunal established
A tribunal called the State Administrative Tribunal is
established.
5 8. The Tribunal's jurisdiction
The Tribunal has the jurisdiction described in Part 3.
9. Main objectives of the Tribunal
The main objectives of the Tribunal in dealing with matters
within its jurisdiction are --
10 (a) to achieve the resolution of questions, complaints or
disputes, and make or review decisions, fairly and
according to the substantial merits of the case;
(b) to act as speedily and with as little formality and
technicality as is practicable, and minimise the costs to
15 parties; and
(c) to make appropriate use of the knowledge and
experience of Tribunal members.
10. Tribunal to operate throughout the State
The Tribunal is to facilitate access to its services throughout
20 Western Australia and may sit at any place in Western
Australia.
11. President specifies who constitutes the Tribunal
(1) When exercising its jurisdiction, the Tribunal is to be
constituted by a person who is a Tribunal member or persons
25 who are Tribunal members, as specified by the President.
(2) The Tribunal is not to be constituted by more than 3 members.
(3) Despite subsections (2) and (4)(b), the President can specify that
the Tribunal is to be constituted by 4 members or 5 members if
page 8
State Administrative Tribunal Bill 2003
The State Administrative Tribunal Part 2
s. 11
the President is satisfied that it is appropriate to do so in
particular circumstances.
(4) The President is to ensure that --
(a) the Tribunal is constituted by, or includes at least one,
5 person who is a legally qualified member; and
(b) when dealing with a decision of a vocational regulatory
body or a matter brought before the Tribunal by a
vocational regulatory body, the Tribunal is constituted
by 3 persons, being --
10 (i) one person who is a legally qualified member;
(ii) one person who has extensive or special
experience in the same vocation as the person
affected by the decision; and
(iii) one person not engaged in that vocation who is
15 familiar with the interests of persons dealing
with persons engaged in that vocation or has
knowledge or experience enabling the person to
understand those interests.
(5) Subsection (4)(a) does not apply if the President is satisfied that
20 the proceeding will not involve any issue requiring the
knowledge of a legally qualified member.
(6) Subsection (4)(a) does not apply to --
(a) a procedural hearing other than a directions hearing;
(b) a compulsory conference; or
25 (c) the appointment of a Tribunal member as a mediator.
(7) Subsection (4)(b) does not apply to --
(a) a directions hearing or other procedural hearing;
(b) a compulsory conference; or
(c) the appointment of a Tribunal member as a mediator.
page 9
State Administrative Tribunal Bill 2003
Part 2 The State Administrative Tribunal
s. 11
(8) In specifying the persons by whom the Tribunal is to be
constituted for dealing with a particular matter and the number
of those persons, the President is to have regard to --
(a) the degrees of the public importance and the complexity
5 of the matter;
(b) if the matter comes within the Tribunal's review
jurisdiction, the nature and status of the office of the
decision-maker who made the reviewable decision;
(c) the extent to which any sitting member of the Tribunal
10 needs to have special knowledge or experience that is
relevant to the matter;
(d) the need to ensure that a person who has had previous
involvement with the matter, otherwise than as a
Tribunal member, is not a sitting member of the
15 Tribunal;
(e) subsection (9) and section 142; and
(f) anything else that the President considers relevant.
(9) A person is not allowed to be a sitting member of the Tribunal,
or perform any function as a Tribunal member, in relation to a
20 matter in the Tribunal's review jurisdiction if the person was --
(a) the decision-maker in relation to that matter; or
(b) a member of a body that was the decision-maker in
relation to that matter.
(10) The President may alter who is to constitute the Tribunal for the
25 purpose of dealing with a matter, or anything relating to a
matter, and the Tribunal as constituted after the alteration can
have regard to any record of the proceeding of the Tribunal in
relation to the matter before the alteration or any evidence taken
in the proceeding before the alteration.
page 10
State Administrative Tribunal Bill 2003
The State Administrative Tribunal Part 2
s. 12
12. Contemporaneous exercise of Tribunal's jurisdiction
The Tribunal constituted in accordance with this Act or an
enabling Act may sit and exercise the jurisdiction of the
Tribunal even though the Tribunal differently constituted in
5 accordance with this Act or an enabling Act is at the same time
sitting and exercising the jurisdiction of the Tribunal.
page 11
State Administrative Tribunal Bill 2003
Part 3 Jurisdiction of the Tribunal
Division 1 Preliminary matters
s. 13
Part 3 -- Jurisdiction of the Tribunal
Division 1 -- Preliminary matters
13. Source of jurisdiction
(1) A provision of an enabling Act that enables an application to be
5 made to the Tribunal gives the Tribunal jurisdiction to deal with
the matter concerned.
(2) In addition to the jurisdiction that an enabling Act gives to deal
with a matter, the Tribunal has any jurisdiction that this Act
gives in relation to that matter.
10 (3) The Tribunal also has the jurisdiction given by section 44(3)
and (4).
14. Kinds of jurisdiction
A matter in which the Tribunal has jurisdiction comes within
either its original jurisdiction or its review jurisdiction.
15 Division 2 -- Original jurisdiction
15. What comes within original jurisdiction
(1) If the matter that an enabling Act gives the Tribunal jurisdiction
to deal with does not involve a review of a decision, the matter
comes within the Tribunal's original jurisdiction.
20 (2) A matter referred to the Tribunal under section 44(4) comes
within the Tribunal's original jurisdiction.
16. Exercising original jurisdiction
(1) In exercising its original jurisdiction the Tribunal is to deal with
a matter in accordance with this Act and the enabling Act.
25 (2) The enabling Act may modify the operation of this Act in
relation to a matter that comes within the Tribunal's original
jurisdiction.
page 12
State Administrative Tribunal Bill 2003
Jurisdiction of the Tribunal Part 3
Review jurisdiction Division 3
s. 17
Division 3 -- Review jurisdiction
Subdivision 1 -- General provisions
17. What comes within review jurisdiction
(1) If the matter that an enabling Act gives the Tribunal jurisdiction
5 to deal with is a matter that expressly or necessarily involves a
review of a decision, the matter comes within the Tribunal's
review jurisdiction.
(2) A matter referred to the Tribunal under section 44(3) comes
within the Tribunal's review jurisdiction.
10 (3) Where subsection (1) or (2) applies the decision is a
"reviewable decision" for the purposes of this Act.
18. Exercising review jurisdiction
(1) In exercising its review jurisdiction the Tribunal is to deal with
a matter in accordance with this Act and the enabling Act.
15 (2) The enabling Act may modify the operation of this Act in
relation to a matter that comes within the Tribunal's review
jurisdiction.
19. Relationship of statutory right of review to judicial review
(1) In this section --
20 "judicial review proceedings" means proceedings in which
any of the following is sought --
(a) a writ of certiorari, mandamus, or prohibition;
(b) another prerogative writ;
(c) a declaratory judgment.
25 (2) The right given by an enabling Act or section 44(3) to have a
decision reviewed by the Tribunal does not exclude any right to
take judicial review proceedings in relation to the decision.
page 13
State Administrative Tribunal Bill 2003
Part 3 Jurisdiction of the Tribunal
Division 3 Review jurisdiction
s. 19
(3) However --
(a) a Tribunal proceeding for the review of a reviewable
decision cannot be commenced at the same time as
judicial review proceedings are commenced in relation
5 to the decision;
(b) if a Tribunal proceeding for the review of a reviewable
decision has commenced, judicial review proceedings
cannot subsequently be commenced in relation to the
decision; and
10 (c) if judicial review proceedings have commenced in
relation to a reviewable decision, a Tribunal proceeding
for the review of the decision cannot subsequently be
commenced.
(4) Subsection (3)(b) applies both during the tribunal proceeding
15 and after the proceeding has ended but --
(a) it does not apply if the proceeding is struck out under
section 50(1) because the Tribunal considers that
judicial review proceedings would be more appropriate;
and
20 (b) it does not affect judicial review proceedings in relation
to the decision of the Tribunal.
(5) Subsection (3)(c) applies both during the judicial review
proceedings and after those proceedings have ended but it does
not apply if they are dismissed or struck out --
25 (a) because of procedural defects and not on their
substantive merits; or
(b) because the court considers them to be inappropriate or
considers that a Tribunal proceeding would be more
appropriate.
30 (6) This section is intended to operate even if the enactment which
gives a right to have a decision reviewed by the Tribunal was
enacted after the commencement of this section.
page 14
State Administrative Tribunal Bill 2003
Jurisdiction of the Tribunal Part 3
Review jurisdiction Division 3
s. 20
Subdivision 2 -- Information about reviewable decision
20. Advice of decision and right to have it reviewed
(1) If this subsection applies to a reviewable decision, the
decision-maker is to give any person who has a right under an
5 enabling Act or section 44(3) to have the decision reviewed by
the Tribunal written notice of --
(a) the decision; and
(b) that right.
(2) Subsection (1) applies to any reviewable decision unless --
10 (a) the decision does not adversely affect the interests of the
person who has that right and --
(i) it is a decision not to impose a liability, penalty,
or any kind of limitation, on a person; or
(ii) it is made under an enabling Act that establishes
15 several categories of entitlement to a monetary or
other benefit, and it determines a person to be in
the most favourable of those categories;
or
(b) the decision is prescribed by the regulations for the
20 purposes of this paragraph.
(3) If the persons who have to be given notice under subsection (1)
are not readily identifiable, the decision-maker is to take steps
that are reasonable in the circumstances to give the notice.
(4) A contravention of this section does not affect the validity of the
25 decision.
(5) If subsection (1) applies in a case in which a person has failed to
make a decision within the time limit for making the decision,
the person may, if the enabling Act permits, make the decision
instead of giving notice under subsection (1).
page 15
State Administrative Tribunal Bill 2003
Part 3 Jurisdiction of the Tribunal
Division 3 Review jurisdiction
s. 21
21. Statement of reasons for decision
(1) If this subsection applies to a reviewable decision, a person who
has a right under an enabling Act or section 44(3) to have the
decision reviewed by the Tribunal may request the
5 decision-maker to provide the person with a written statement of
the reasons for the decision.
(2) Subsection (1) applies to any reviewable decision unless --
(a) the decision-maker has already given the person a
written statement containing the details described in
10 subsection (5) (whether as part of the decision or
separately); or
(b) the enabling Act contains other provisions under which
the person has, will, could, or could have, become
entitled to a written statement of the reasons for the
15 decision containing the details described in
subsection (5).
(3) A request under subsection (1) has to be made in writing and
can be made --
(a) at any time within the period of 28 days after the day on
20 which the decision was made; or
(b) if section 20(1) applies, at any time before the expiration
of the period of 28 days after the day on which notice is
given as required under section 20(1).
(4) Subject to section 23, a decision-maker receiving a request
25 under subsection (1) is to comply with the request as soon as
practicable, and in any case within the period of 28 days after
the request is made.
(5) Subject to section 23, the decision-maker's written statement
has to contain --
30 (a) the reasons for the decision; and
page 16
State Administrative Tribunal Bill 2003
Jurisdiction of the Tribunal Part 3
Review jurisdiction Division 3
s. 22
(b) any findings on material questions of fact that led to the
decision, referring to the evidence or other material on
which those findings were based.
22. Tribunal may order decision-maker to provide reasons
5 (1) If, under section 21(1), a person requests a decision-maker to
provide the person with a written statement of the reasons for a
reviewable decision and, contrary to section 21(4), the
decision-maker fails to provide the statement, the person may
apply to the Tribunal for an order that the decision-maker
10 provide the statement to the person.
(2) The person is to give notice of the application to the
decision-maker within the time specified by the rules.
(3) If the Tribunal is satisfied that the person is entitled to be
provided with the statement, the Tribunal may order that the
15 decision-maker provide the statement to the person within the
time specified in the order.
23. Exceptions to what has to be provided
(1) A statement required by section 21 cannot include any protected
matter.
20 (2) If the omission of protected matter under subsection (1) would
make the statement false or misleading then, instead of
providing the statement, the decision-maker is to inform the
person who requested the statement that it is not being provided
because it would be false or misleading for that reason.
25 24. Provision of documents and material by decision-maker
If a proceeding for the review of a decision is commenced, the
decision-maker is to provide the following to the Tribunal in
accordance with the rules --
(a) a statement of the reasons for the decision;
page 17
State Administrative Tribunal Bill 2003
Part 3 Jurisdiction of the Tribunal
Division 3 Review jurisdiction
s. 25
(b) other documents and other material in the
decision-maker's possession or under the
decision-maker's control and relevant to the Tribunal's
review of the decision.
5 Subdivision 3 -- The review
25. Effect of proceeding on reviewable decision
(1) The commencement of a proceeding for the review of a decision
does not affect the operation of the decision or prevent the
taking of action to implement the decision unless --
10 (a) the enabling Act states otherwise; or
(b) the Tribunal makes an order under subsection (2).
(2) The Tribunal, on the application of a party or on its own
initiative, may make an order staying the operation of a decision
that is the subject of a proceeding for review.
15 (3) The Tribunal's power to make an order under subsection (2) is
exercisable by --
(a) a legally qualified member; or
(b) the presiding member if the Tribunal as constituted for a
hearing does not consist of or include a legally qualified
20 member.
(4) The Tribunal may make an order under subsection (2) only if it
considers that it is desirable to do so after taking into account --
(a) the interests of any persons whose interests may be
affected by the order;
25 (b) any submission made by or on behalf of the
decision-maker; and
(c) the public interest.
(5) Subsection (4)(a) does not require the Tribunal to give any
person whose interests may be affected by the order an
30 opportunity to be heard.
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State Administrative Tribunal Bill 2003
Jurisdiction of the Tribunal Part 3
Review jurisdiction Division 3
s. 26
(6) In making an order under subsection (2), 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 order if
5 specified conditions are met.
(7) The Tribunal may assess any costs or damages referred to in
subsection (6)(a) and any amount so assessed is a debt
recoverable in a court of competent jurisdiction.
26. Restriction on powers of decision-maker after review
10 commenced
After the commencement of a proceeding for the review of a
decision the decision-maker cannot --
(a) vary the decision; or
(b) set aside the decision and substitute its new decision,
15 unless --
(c) that is permitted by the enabling Act;
(d) the parties to the proceeding consent; or
(e) the decision-maker is invited under section 31 to
reconsider the decision.
20 27. Nature of the hearing
(1) The review of a reviewable decision is to be by way of a hearing
de novo, and it is not confined to matters that were before the
decision-maker but may involve the consideration of new
material whether or not it existed at the time the decision was
25 made.
(2) The purpose of the review is to produce the correct and
preferable decision at the time of the decision upon the review.
(3) The reasons for decision provided by the decision-maker, or any
grounds for review set out in the application, do not limit the
page 19
State Administrative Tribunal Bill 2003
Part 3 Jurisdiction of the Tribunal
Division 3 Review jurisdiction
s. 28
Tribunal in conducting a proceeding for the review of a
decision.
28. Considering government policy
(1) The Minister responsible for the administration of the enabling
5 Act may certify in writing that there was, at the time of the
reviewable decision, a statement of policy that had been
published in the Gazette under a written law and applied to
decisions of that kind.
(2) If a certificate is given under subsection (1) and the
10 decision-maker states in the material provided to the Tribunal
under section 24 that the decision-maker had regard to the
statement of policy in making the decision, the Tribunal in
conducting the proceeding must have regard to the statement of
policy as in effect at the time of the review.
15 (3) Subsection (2) does not apply to the extent that the statement of
policy is outside power.
29. Powers of Tribunal on review
(1) The Tribunal has, when dealing with a matter in the exercise of
its review jurisdiction, functions and discretions corresponding
20 to those exercisable by the decision-maker in making the
reviewable decision.
(2) Subsection (1) does not limit the powers given by this Act or the
enabling Act to the Tribunal.
(3) The Tribunal may --
25 (a) affirm the decision that is being reviewed;
(b) vary the decision that is being reviewed; or
(c) set aside the decision that is being reviewed and --
(i) substitute its own decision; or
(ii) send the matter back to the decision-maker for
30 reconsideration in accordance with any
page 20
State Administrative Tribunal Bill 2003
Jurisdiction of the Tribunal Part 3
Review jurisdiction Division 3
s. 30
directions or recommendations that the Tribunal
considers appropriate,
and, in any case, may make any order the Tribunal considers
appropriate.
5 (4) The fact that a decision is made on reconsideration as required
under subsection (3)(c)(ii), does not prevent the decision from
being open to review by the Tribunal.
(5) The decision-maker's decision as affirmed or varied by the
Tribunal or a decision that the Tribunal substitutes for the
10 decision-maker's decision --
(a) is to be regarded as, and given effect as, a decision of
the decision-maker; and
(b) unless the enabling Act states otherwise or the Tribunal
orders otherwise, is to be regarded as having effect, or
15 having had effect, from the time when the decision
reviewed would have, or would have had, effect.
(6) Without limiting subsection (5)(a), the decision-maker has
power to do anything necessary to implement the Tribunal's
decision.
20 (7) Despite subsection (5)(a), the decision as affirmed, varied, or
substituted is not again open to review by the Tribunal as a
decision of the decision-maker.
(8) Subsection (5)(a) does not affect an appeal under Part 5 against
the Tribunal's decision.
25 30. Decision-maker to assist Tribunal
In a proceeding for the review of a reviewable decision, the best
endeavours of the decision-maker are to be used to assist the
Tribunal to make its decision on the review.
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State Administrative Tribunal Bill 2003
Part 3 Jurisdiction of the Tribunal
Division 3 Review jurisdiction
s. 31
31. Tribunal may invite decision-maker to reconsider
(1) At any stage of a proceeding for the review of a reviewable
decision, the Tribunal may invite the decision-maker to
reconsider the decision.
5 (2) Upon being invited by the Tribunal to reconsider the reviewable
decision, the decision-maker may --
(a) affirm the decision;
(b) vary the decision; or
(c) set aside the decision and substitute its new decision.
10 (3) If the decision-maker varies the decision or sets it aside and
substitutes a new decision, unless the proceeding for a review is
withdrawn it is taken to be for the review of the decision as
varied or the substituted decision.
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State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Introduction Division 1
s. 32
Part 4 -- Tribunal's procedures
Division 1 -- Introduction
32. Practice and procedure, generally
(1) The Tribunal is bound by the rules of natural justice except to
5 the extent that this Act or the enabling Act authorises, whether
expressly or by implication, a departure from those rules.
(2) The Evidence Act 1906 does not apply to the Tribunal's
proceedings and the Tribunal --
(a) is not bound by the rules of evidence or any practices or
10 procedures applicable to courts of record, except to the
extent that it adopts those rules, practices or procedures
or the regulations or rules make them apply; and
(b) is to act according to equity, good conscience and the
substantial merits of the case without regard to
15 technicalities and legal forms.
(3) Without limiting subsection (2), the Tribunal may admit into
evidence the contents of any document despite non-compliance
with any time limit or other requirement specified in the rules in
relation to that document or service of it.
20 (4) The Tribunal may inform itself on any matter as it sees fit.
(5) To the extent that the practice and procedure of the Tribunal is
not prescribed by or under this Act or the enabling Act, it is to
be as the Tribunal determines.
(6) The Tribunal is to take measures that are reasonably
25 practicable --
(a) to ensure that the parties to the proceeding before it
understand the nature of the assertions made in the
proceeding and the legal implications of those
assertions;
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State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 1 Introduction
s. 32
(b) to explain to the parties, if requested to do so, any aspect
of the procedure of the Tribunal, or any decision or
ruling made by the Tribunal, that relates to the
proceeding; and
5 (c) to ensure that the parties have the opportunity in the
proceeding --
(i) to call or give evidence;
(ii) to examine, cross-examine or re-examine
witnesses; and
10 (iii) to be heard or otherwise have their submissions
considered.
(7) The Tribunal --
(a) is to ensure that all relevant material is disclosed to the
Tribunal so as to enable it to determine all of the
15 relevant facts in issue in a proceeding;
(b) may require evidence or argument to be presented in
writing and decide on the matters on which it will hear
oral evidence or argument;
(c) may limit the time available for presenting the
20 respective cases of parties before it at a hearing to an
extent that it considers would not impede the fair and
adequate presentation of the cases;
(d) may require a document to be served outside the State;
and
25 (e) may adjourn a proceeding to any time and place
(including for the purpose of enabling the parties to
negotiate a settlement or for the purpose of
reconsideration of a decision by the decision-maker
under section 31).
30 (8) The Tribunal's powers under subsection (7) are exercisable
by --
(a) a legally qualified member; or
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State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Introduction Division 1
s. 33
(b) the presiding member if the Tribunal as constituted for a
hearing does not consist of or include a legally qualified
member.
33. Practice notes
5 (1) The Rules Committee may issue practice notes about the
practice and procedure of the Tribunal.
(2) The Rules Committee is to give the Minister a copy of each
practice note it issues as soon as practicable after issuing it.
(3) A practice note is not a rule and does not form part of the rules.
10 34. Directions
(1) The Tribunal may give directions at any time in a proceeding
and do whatever is necessary for the speedy and fair conduct of
the proceeding.
(2) The Tribunal's power to give directions is exercisable by --
15 (a) a legally qualified member; or
(b) the presiding member if the Tribunal as constituted for a
hearing does not consist of or include a legally qualified
member.
(3) The Tribunal may give directions on its own initiative.
20 (4) A directions hearing conducted or presided over by a legally
qualified member may be held for the purposes of this section
before the hearing of the proceeding.
(5) The Tribunal may give a direction requiring a party to produce a
document or other material, or provide information, to the
25 Tribunal or another party despite any rule of law relating to
privilege (other than legal professional privilege) or the public
interest in relation to the production of documents.
(6) Without limiting subsection (3), a direction referred to in
subsection (5) can be given on the application of a party.
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State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 1 Introduction
s. 35
(7) However if any document is or contains protected matter, the
Tribunal cannot direct a party to produce it to another party.
35. Obtaining information from third parties
(1) On the application of a party to a proceeding, the Tribunal may
5 order that a person --
(a) who is not a party to the proceeding; and
(b) who has, or is likely to have, in the person's possession
or under the person's control a document or other
material that is relevant to the proceeding,
10 produce the document or material to the Tribunal or the party
within the time specified in the order.
(2) The Tribunal may order a person to produce a document or
other material despite any rule of law relating to privilege (other
than legal professional privilege) or the public interest in
15 relation to the production of documents.
(3) However if any document is or contains protected matter, the
Tribunal cannot order a person to produce it to a party.
36. Parties
(1) A person is a party to a proceeding before the Tribunal if the
20 person is --
(a) the applicant;
(b) a person joined under section 38 as a party to the
proceeding;
(c) a person intervening in the proceeding; or
25 (d) specified by this Act or the enabling Act to be a party to
the proceeding.
(2) If the proceeding is in the Tribunal's review jurisdiction, the
decision-maker is also a party.
page 26
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Introduction Division 1
s. 37
(3) In a proceeding to which a decision-maker is a party, the official
description rather than the personal name of the decision-maker
is to be used so far as is practicable.
37. Intervening in proceeding
5 (1) The Attorney General may, on behalf of the State, intervene in a
proceeding of the Tribunal at any time.
(2) The Commissioner for Fair Trading referred to in section 15 of
the Consumer Affairs Act 1971 may, on behalf of the State,
intervene at any time in a proceeding if the Minister responsible
10 for the administration of that Act is responsible for the
administration of the enabling Act.
(3) The Tribunal may give leave at any time for a person to
intervene in a proceeding on conditions, if any, that the Tribunal
thinks fit.
15 38. Joining as a party
(1) The Tribunal may order that a person be joined as a party to a
proceeding if the Tribunal considers that --
(a) the person ought to be bound by, or have the benefit of,
a decision of the Tribunal in the proceeding;
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 subsection (1) on the
application of any person or on its own initiative.
25 39. Representation
(1) At the hearing of a proceeding before the Tribunal, or a
directions hearing or other procedural hearing or a compulsory
conference or mediation, a party to the proceeding may appear
in person or may be represented by another person, but a party
page 27
State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 1 Introduction
s. 40
cannot be represented by a person other than a legal practitioner
unless --
(a) the party is a body corporate and the person is a director,
secretary, or other officer of the body corporate;
5 (b) the party is a public sector body as defined in
section 3(1) of the Public Sector Management Act 1994
and the person is a public sector employee authorised by
the party to represent it;
(c) the party is a party in the course of or because of the
10 performance, or purported performance, of his or her
duties as a public sector employee and the person is
another public sector employee authorised by the party
to represent him or her;
(d) the Tribunal agrees to that person representing the party,
15 and any conditions imposed by the Tribunal are
satisfied; or
(e) the regulations or the rules authorise it.
(2) This section does not authorise a person who could not
otherwise lawfully demand or receive any fee or reward for
20 representing a party to demand or receive any fee or reward.
(3) A person who has been struck off the roll of practitioners of the
Supreme Court cannot represent a party.
(4) The regulations or the rules may prevent specified persons, or
persons of a specified class, from representing a party.
25 40. Tribunal may appoint representative or guardian
(1) If a party is unrepresented, the Tribunal may appoint a person to
represent the party.
(2) If a child is a party or potential party to a proceeding or
proposed proceeding, the Tribunal may appoint a litigation
30 guardian in accordance with the rules to conduct the proceeding
on the child's behalf.
page 28
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Preliminary procedures Division 2
s. 41
41. Interpreters
Unless the Tribunal directs otherwise, a party or a party's
representative may be assisted in the course of a proceeding by
an interpreter or another person necessary or desirable to make
5 the proceeding intelligible to that party.
Division 2 -- Preliminary procedures
42. Commencing proceeding
(1) A person applying to the Tribunal for review, or otherwise
bringing a matter before the Tribunal by referral or other means,
10 has to do so in accordance with this Act except to the extent that
the enabling Act states otherwise.
(2) The executive officer is to ensure that a person wishing to
commence a proceeding before the Tribunal is given reasonable
assistance that the person seeks.
15 (3) A proceeding before the Tribunal commences when the
application is accepted by the executive officer.
43. Fee for commencing proceeding
(1) The rules may require the payment of a fee for the
commencement of a proceeding and may provide for the stay of
20 the proceeding until the fee is paid or payment is waived or
postponed under the rules.
(2) The rules may authorise the waiver or reduction of the fee that
would otherwise be payable.
44. Rejecting an application or accepting an application
25 conditionally
(1) Unless otherwise stated in the rules, the executive officer may
reject an application on the ground that --
(a) it is made by a person not entitled to make it;
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State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 2 Preliminary procedures
s. 45
(b) it is made after the time limit before which the
application is required to be made; or
(c) it does not otherwise comply with this Act or the
enabling Act.
5 (2) If the executive officer accepts an application, the executive
officer may impose conditions of a kind specified by the rules
on the acceptance.
(3) If, under subsection (1) or (2), the executive officer rejects an
application or accepts an application on conditions --
10 (a) the applicant may request the executive officer to refer
to the Tribunal for a review of the decision to reject the
application or accept the application on conditions or a
review of any condition imposed; and
(b) the executive officer is to refer the decision or condition
15 to the Tribunal for a review if requested under
paragraph (a) to do so.
(4) If the executive officer believes that an application could be
rejected under subsection (1), the executive officer may, instead
of deciding whether or not to reject the application, refer the
20 question to the Tribunal.
(5) An appeal cannot be made under Part 5 from a decision of the
Tribunal on a matter referred to it under subsection (3) or (4).
(6) No fee is payable for requesting a matter to be referred under
subsection (3).
25 45. Who has to be given a copy of an application
(1) When an application is accepted by the executive officer the
applicant is to give a copy of the application to --
(a) each other party;
(b) any other person entitled under this Act or the enabling
30 Act to a copy of, or notice of, the application; and
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State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Preliminary procedures Division 2
s. 46
(c) any person to whom the applicant is directed by the
Tribunal to give a copy of the application.
(2) Subsection (1) does not require the applicant to give a copy
of the application to a person mentioned in subsection (1)
5 (a "notifiable person") if --
(a) the executive officer has undertaken to give a copy of
the application to the notifiable person; or
(b) under subsection (3) the Tribunal dispenses with the
requirement to give a copy of the application to the
10 notifiable person.
(3) The Tribunal may make an order dispensing with the
requirement to give a copy of an application to a notifiable
person specified in the order if satisfied --
(a) that the applicant has made all reasonable attempts to
15 give a copy of the application to the notifiable person
but has been unsuccessful; or
(b) that the making and hearing of the application without
notice to the notifiable person would not cause injustice.
(4) The Tribunal's power under subsection (3) is exercisable only
20 by a legally qualified member.
(5) The Tribunal may make an order under subsection (3) on the
application of the applicant or on its own initiative.
(6) The rules may provide for the manner in which and time within
which subsection (1) is to be complied with.
25 46. Dismissing proceeding on withdrawal or for want of
prosecution
(1) If the Tribunal gives leave, the applicant may withdraw or agree
to the withdrawal of a proceeding or a part of a proceeding.
(2) The Tribunal may make an order dismissing or striking out all,
30 or any part, of a proceeding before it if the applicant withdraws
or agrees to the withdrawal of the proceeding or that part of it.
page 31
State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 2 Preliminary procedures
s. 47
(3) At any time, the Tribunal may make an order dismissing or
striking out all, or any part, of a proceeding before it for want of
prosecution.
(4) The Tribunal's power to make an order under subsection (3) is
5 exercisable only by a legally qualified member.
(5) The Tribunal may make an order under this section on the
application of a party or on its own initiative.
47. Unjustified proceedings
(1) This section applies if the Tribunal believes that a
10 proceeding --
(a) is frivolous, vexatious, misconceived or lacking in
substance;
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process.
15 (2) If this section applies, the Tribunal may order that the
proceeding be dismissed or struck out and make any appropriate
orders.
(3) The Tribunal's powers to act under subsection (2) are
exercisable only by a legally qualified member.
20 (4) The Tribunal may act under subsection (2) on the application of
a party or on its own initiative.
48. 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
25 unnecessarily disadvantages another party to the proceeding by
conduct such as --
(a) failing to comply with an order or direction of the
Tribunal without reasonable excuse;
(b) failing to comply with this Act or the enabling Act;
page 32
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Preliminary procedures Division 2
s. 49
(c) asking for an adjournment the need for which is
attributable to a failure described in paragraph (a) or (b);
(d) attempting to deceive another party or the Tribunal;
(e) vexatiously conducting the proceeding; or
5 (f) failing to attend any compulsory conference or
mediation in the proceeding, or attend a hearing of the
proceeding.
(2) If this section applies, the Tribunal may --
(a) if the party causing the disadvantage is the applicant,
10 order that the proceeding be dismissed or struck out;
(b) if the party causing the disadvantage is not the
applicant --
(i) determine the proceeding in favour of the
applicant and make any appropriate orders; or
15 (ii) order that the party causing the disadvantage be
struck out of the proceeding.
(3) The Tribunal's powers to act under subsection (2) are
exercisable only by a legally qualified member.
(4) The Tribunal may act under subsection (2) on the application of
20 the applicant or on its own initiative.
49. Restriction on new application
If a proceeding is dismissed or struck out under section 46, 47
or 48, another proceeding of the same kind in relation to the
same matter cannot be commenced before the Tribunal without
25 the leave of a judicial member.
50. More appropriate forum
(1) The Tribunal may, at any time, make an order striking out all, or
any part, of a proceeding if it considers that the matter, or any
aspect of it, would be more appropriately dealt with by another
30 tribunal, a court, or any other person.
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State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 2 Preliminary procedures
s. 51
(2) The Tribunal's power to make an order under subsection (1) is
exercisable only by a judicial member.
(3) If the Tribunal makes an order under subsection (1), it may refer
the matter, or any aspect of it, to the relevant tribunal, court, or
5 person if it considers it appropriate to do so.
(4) The Tribunal may make an order under subsection (1) on the
application of a party or on its own initiative.
51. Consolidation of proceedings
(1) The Tribunal may direct that 2 or more proceedings that
10 concern the same or related facts and circumstances --
(a) be consolidated into the one proceeding; or
(b) remain as separate proceedings but be heard and
determined together.
(2) The Tribunal's power to give a direction under subsection (1) is
15 exercisable by a sitting member for either of the proceedings
who is a legally qualified member.
(3) If proceedings are consolidated, evidence given in the
consolidated proceeding is admissible in relation to matters
involved in either of the proceedings that were consolidated.
20 52. Compulsory conference
(1) At an initial directions hearing or at any other time before the
hearing of a proceeding, the Tribunal may require parties to the
proceeding to attend a compulsory conference.
(2) The President is to allocate a member of the Tribunal to preside
25 at a compulsory conference.
(3) The purpose of a compulsory conference is to identify and
clarify the issues in the proceeding and promote the resolution
of the matters by a settlement between the parties.
(4) Unless the Tribunal member presiding at a compulsory
30 conference directs otherwise, it is to be held in private.
page 34
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Preliminary procedures Division 2
s. 53
(5) Except to the extent that the rules may specify the procedure for
a compulsory conference, the Tribunal member presiding at a
compulsory conference may determine the procedure for the
conference.
5 (6) If a settlement appears to be reached at a compulsory
conference, the Tribunal member presiding may reduce the
terms of settlement to writing and make any orders necessary to
give effect to the settlement.
(7) The Tribunal member who presided at a compulsory conference
10 is not eligible to constitute, or be one of the members
constituting, the Tribunal for the purpose of otherwise dealing
with the proceeding.
53. Failure to attend compulsory conference
If a party does not attend a properly convened compulsory
15 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, constituted by that
20 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 of the
proceeding.
25 54. Mediation
(1) If a directions hearing has been held under section 34 or a
compulsory conference has been held under section 52, the
Tribunal may, at any later stage of the proceeding, refer the
matter, or any aspect of it, for mediation by a person specified
30 as a mediator by the Tribunal.
page 35
State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 2 Preliminary procedures
s. 55
(2) The person specified as a mediator has to be a person who has
been approved by the President as a person who may act as a
mediator.
(3) The referral may be made with or without the consent of the
5 parties.
(4) The purpose of a mediation is to achieve the resolution of the
matters by a settlement between the parties.
(5) The rules may specify how notice of the mediation is to be
given, how the mediation is to be conducted, and the fees to be
10 paid by a party for the mediation.
(6) Unless the mediator directs otherwise, the mediation is to be
held in private.
(7) Except to the extent that the rules may specify the procedure for
a mediation, the mediator may determine the procedure for the
15 mediation.
(8) If the mediator is a Tribunal member and a settlement appears to
be reached at the mediation, the mediator may reduce the terms
of settlement to writing and make any orders necessary to give
effect to the settlement.
20 (9) If a settlement is not reached at the mediation or the mediator is
not a Tribunal member, the mediator is to report on the outcome
of the mediation to the Tribunal as constituted when it made the
referral.
(10) If the mediator is a Tribunal member, the member cannot take
25 any further part in dealing with the proceeding after the
mediation unless all parties agree to him or her doing so.
55. Evidence of certain things inadmissible
Evidence of anything said or done in the course of a compulsory
conference or mediation is not admissible at any later stage of
30 the proceeding unless --
(a) all parties agree to the admission of the evidence;
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State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Proceedings and hearings Division 3
s. 56
(b) it is evidence of directions given or orders made at a
compulsory conference or mediation or the reasons for
those directions or orders; or
(c) it is relevant to --
5 (i) a proceeding for an offence in relation to the
giving of false or misleading information;
(ii) a proceeding under section 99; or
(iii) a proceeding in relation to an order made under
section 53(b)(i).
10 56. Settlement
(1) If the parties agree in writing to settle a proceeding that is
before the Tribunal, the Tribunal may make any orders
necessary to give effect to the settlement.
(2) The Tribunal cannot make an order under subsection (1) unless
15 it is satisfied that it would have the power to make a decision in
the terms of the agreed settlement or in terms that are consistent
with the terms of the agreed settlement.
(3) The Tribunal may, with the consent of the parties, vary the
terms of an order under subsection (1) if to do so would reflect
20 the intention of the agreement.
(4) Subsections (2) and (3) also apply to an order under
section 52(6) or 54(8).
Division 3 -- Proceedings and hearings
57. Presiding member
25 (1) If, for dealing with a particular matter, the Tribunal is
constituted by 2 or more members, the most senior of them is to
preside at a proceeding of the Tribunal.
page 37
State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 3 Proceedings and hearings
s. 58
(2) The seniority of members of the Tribunal depends on which of
the offices held takes precedence and, if that does not determine
a member's seniority, the matter is to be resolved by the
President.
5 (3) The order of precedence of offices is --
(a) President;
(b) Deputy President;
(c) senior member;
(d) ordinary member.
10 58. Decision of Tribunal if 2 or more sitting members
If the Tribunal is constituted by 2 or more sitting members, a
question they are required to decide is resolved, unless
section Error! Reference source not found. applies, according
to the opinion of the majority of them but, if their opinions on
15 the question are equally divided, the question is to be resolved
according to the opinion of the presiding member.
59. Deciding questions of law
(1) In this section --
"question of law" means a question of law arising in a
20 proceeding for decision by the Tribunal and includes a
question of mixed law and fact.
(2) Subject to subsection (10), a question of law is decided by the
Tribunal according to the opinion of the presiding member if
that member is a legally qualified member.
25 (3) If the presiding member is not a legally qualified member but
there is at least one sitting member who is a legally qualified
member, a question of law is decided by the Tribunal according
to the opinion of that legally qualified member, or according to
the unanimous opinion of those legally qualified members if
30 there are 2 or more of them.
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Proceedings and hearings Division 3
s. 59
(4) The presiding member may choose to refer a question of law to
the President whether or not the question has been decided
under subsection (2) or (3).
(5) If subsection (3) applies to a question of law, the presiding
5 member is to refer the question to the President if --
(a) the presiding member is requested to do so by a sitting
member who is a legally qualified member (whether or
not the question has been decided under subsection (3));
or
10 (b) for any reason the question has not been decided under
subsection (3).
(6) Subsection (2) no longer applies to a question of law if the
question is referred to the President under subsection (4).
(7) Subsection (3) no longer applies to a question of law if the
15 question is referred to the President under subsection (4) or (5).
(8) If no sitting member is a legally qualified member, the presiding
member is to refer a question of law to the President.
(9) Subsection (10) applies to the resolution of a question of law if
the presiding member is the President or the question is referred
20 to the President under subsection (4), (5) or (8).
(10) If this subsection applies to a question of law --
(a) the question is decided by the Tribunal according to the
opinion of the President or, if the President gives the
question to another legally qualified member of the
25 Tribunal for resolution, according to the opinion of that
other member; or
(b) the President may refer the question to the Supreme
Court for decision by the Supreme Court as long as it is
not a question of mixed law and fact.
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Part 4 Tribunal's procedures
Division 3 Proceedings and hearings
s. 60
60. Electronic hearings and proceedings without hearings
(1) If the Tribunal thinks it appropriate, it may allow the parties and
their representatives and any witnesses (or one or more of them)
to participate in a hearing of a proceeding by means of
5 telephones, video links, or any other system or method of
communication.
(2) If the Tribunal thinks it appropriate, it may conduct all or part of
a proceeding entirely on the basis of documents without the
parties or their representatives or any witnesses attending or
10 participating in a hearing.
(3) If the Tribunal conducts a proceeding in accordance with this
section, the Tribunal is to take steps to ensure that the public has
access to, or is precluded from access to, matters disclosed in
the proceeding to the same extent as if the proceeding had been
15 heard before the Tribunal with the attendance in person of all
persons involved in the proceeding.
(4) Provisions of this Act applying to hearings (other than
section 61) apply with any necessary modifications in relation to
a proceeding conducted in accordance with subsection (2).
20 61. Public hearings
(1) Unless another provision of this Act provides otherwise,
hearings of the Tribunal are to be held in public.
(2) On the application of a party or on its own initiative the
Tribunal may, in the circumstances described in subsection (4),
25 order that a hearing or any part of it be held in private.
(3) The Tribunal's power to make an order under subsection (2) is
exercisable by --
(a) a legally qualified member; or
(b) the presiding member if the Tribunal as constituted for a
30 hearing does not consist of or include a legally qualified
member.
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Tribunal's procedures Part 4
Proceedings and hearings Division 3
s. 62
(4) The Tribunal may make an order under subsection (2) if the
Tribunal considers it is necessary to do so --
(a) to avoid endangering the national or international
security of Western Australia or Australia;
5 (b) to avoid damaging inter-governmental relations;
(c) to avoid prejudicing the administration of justice;
(d) to avoid endangering the physical or mental health or
safety of any person;
(e) to avoid offending public decency or morality;
10 (f) to avoid the publication of confidential information or
information the publication of which would be contrary
to the public interest; or
(g) for any other reason in the interests of justice.
62. Publication of information from or about a proceeding
15 (1) This section applies to --
(a) any evidence given before the Tribunal;
(b) the contents of any documents produced to the Tribunal;
and
(c) any information that might enable a person who has
20 appeared before the Tribunal to be identified.
(2) Anything to which this section applies that is protected matter is
not to be published.
(3) On the application of a party or on its own initiative the
Tribunal may, in the circumstances described in section 61(4),
25 order that anything, or any particular thing, to which this section
applies is not to be published except in the manner and to the
persons, if any, specified by the Tribunal.
(4) The Tribunal's power to make an order under subsection (3) is
exercisable by --
30 (a) a legally qualified member; or
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Part 4 Tribunal's procedures
Division 3 Proceedings and hearings
s. 63
(b) the presiding member if the Tribunal as constituted for a
hearing does not consist of or include a legally qualified
member.
63. Notice of hearings
5 (1) The executive officer is to 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;
(b) each other person entitled to notice of the proceeding or
hearing under this Act or the enabling Act; and
10 (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 attend, the hearing may be
held in the absence of that person.
15 64. Tribunal may call on expert or professional assistance
(1) The Tribunal may appoint a legal practitioner, or any other
person with relevant knowledge or experience, to assist the
Tribunal in relation to a proceeding or proceedings before the
Tribunal whether by providing advice or professional services
20 or by giving evidence.
(2) The Tribunal may order a party to pay or contribute to the
Tribunal's costs of obtaining the assistance of a person
appointed under subsection (1).
65. Special referees
25 (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
(b) to give his or her opinion with respect to it.
(2) The Tribunal may order a party to pay or contribute to the
30 Tribunal's costs of obtaining the services of a person appointed
under subsection (1).
page 42
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Proceedings and hearings Division 3
s. 66
66. Summoning witness
(1) The Tribunal may, by summons signed on behalf of the
Tribunal by the executive officer, require --
(a) the attendance before the Tribunal of any person;
5 (b) the production before the Tribunal of any document or
other material.
(2) A summons under subsection (1)(a) may be issued on the
Tribunal's initiative or at the request of a party.
(3) A summons under subsection (1)(b) may be issued on the
10 Tribunal's initiative.
(4) A summons under subsection (1)(b) may require a person to
produce a document or other material despite any rule of law
relating to privilege (other than legal professional privilege) or
the public interest in relation to the production of documents.
15 (5) A person who attends in answer to a summons is entitled to be
paid the fees and allowances prescribed in the rules or, if no fees
and allowances are prescribed, the fees and allowances (if any)
determined by the Tribunal.
(6) The Tribunal may determine --
20 (a) by which party; or
(b) by which parties and in which proportions,
the fees and allowances are to be paid.
67. Powers relating to witnesses
(1) In any proceeding before the Tribunal, the Tribunal may --
25 (a) on its own initiative, call any person to give evidence;
(b) examine any witness on oath or affirmation, or by use of
a statutory declaration;
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Part 4 Tribunal's procedures
Division 3 Proceedings and hearings
s. 68
(c) examine or cross-examine any witness to such extent as
the Tribunal thinks proper in order to elicit information
relevant to the exercise of the functions of the Tribunal
in the proceeding; and
5 (d) compel any witness including a witness whose conduct
is subject to an inquiry (whether or not the witness has
been summoned to appear) to answer questions which
the Tribunal considers to be relevant in the proceeding.
(2) Nothing in subsection (1) enables the Tribunal to compel a
10 witness to answer a question if the witness --
(a) is excused by section 69(1) from answering the
question; or
(b) has a reasonable excuse (other than on the ground
mentioned in section 68(1)) for refusing to answer the
15 question.
68. Privilege against self-incrimination
(1) A person is not excused from complying with a requirement
under this Act to answer a question or produce a document or
other material in a proceeding on the ground that the answer or
20 the production of the document or other material might
incriminate the person or render the person liable to a penalty.
(2) However neither --
(a) an answer given by the person that was given to comply
with the requirement; nor
25 (b) the fact that a document or other material produced by
the person to comply with the requirement was
produced,
is admissible in evidence in any criminal proceedings against
the person other than proceedings for perjury or for an offence
30 against this Act arising out of the false or misleading nature of
an answer.
page 44
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Proceedings and hearings Division 3
s. 69
69. Other claims of privilege
(1) Unless it would be contrary to section 68 or a direction under
section 34(5), a person is excused from answering a question or
producing a document or other material in a proceeding if the
5 person could not be compelled to answer the question or
produce the document or material in proceedings in the
Supreme Court.
(2) The Tribunal may require a person to produce a document or
other material to it for the purpose of determining whether or
10 not it is a document or material that the Tribunal has power to
compel the person to produce.
70. Oaths and affirmations
A member of the Tribunal may administer an oath or take an
affirmation for the purposes of this Act.
15 71. Authorising person to take evidence
(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 subsection (1) to authorise the
20 taking of evidence is exercisable only by a judicial member.
(3) The Tribunal may authorise evidence to be taken under this
section outside Western Australia.
(4) The Tribunal may give directions as to the taking of evidence
under this section.
25 (5) If a person other than a member of the Tribunal is authorised to
take evidence the person has all the powers of a member of the
Tribunal in relation to the taking of evidence.
(6) Evidence taken under this section --
(a) is to be regarded as having been given to the Tribunal;
30 and
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State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 4 Decisions made by Tribunal
s. 72
(b) if taken outside Western Australia, is to be regarded as
having been given in Western Australia.
72. Dealing with things produced
The Tribunal may inspect any document or other material
5 produced before it, and retain it for as long as it reasonably
thinks fit, and make copies of any document or any of its
contents.
Division 4 -- Decisions made by Tribunal
73. Conditional and ancillary orders and directions
10 (1) A power of the Tribunal to make an order or give a direction
(the "primary power") includes the power to make the order
subject to conditions and the power to make any ancillary order
or direction the Tribunal considers appropriate for achieving the
purpose for which it may exercise the primary power.
15 (2) An ancillary order may provide for a decision of the Tribunal in
relation to a reviewable decision to be implemented by a person
who is not the original decision-maker whether or not that
person is a party to the proceeding.
74. Form of decision
20 A decision of the Tribunal has to be given in writing and
authenticated in accordance with the rules if --
(a) the decision is a final decision;
(b) the Tribunal reserved the decision;
(c) the rules state that the decision has to be given in
25 writing; or
(d) a party requests that the decision be given in writing.
page 46
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Decisions made by Tribunal Division 4
s. 75
75. To whom copy of written decision has to be given
(1) The Tribunal is to give a copy of any written decision it gives in
a proceeding to --
(a) each party; and
5 (b) each other person who is, under this Act or the enabling
Act, entitled to notice of the proceeding or the relevant
hearing, or of the decision.
(2) The Tribunal's obligation under subsection (1) to give a person
a copy of a written decision is satisfied if the Tribunal orders a
10 party to give the person a copy of the written decision.
76. Time limit for reserved decision
If the Tribunal reserves its decision in any proceeding, whether
or not it is a final decision, it is to give its decision and the
reasons for the decision within the period of 90 days after the
15 day on which it reserved its decision or within an extension of
that period given by the President.
77. Reasons for final decision
(1) The Tribunal is to give its reasons for a final decision.
(2) Reasons that the Tribunal gives for a final decision have to
20 include the Tribunal's findings on material questions of fact,
referring to the evidence or other material on which those
findings are based.
78. Written reasons may be requested
(1) If the Tribunal makes a decision, whether or not a final decision,
25 without having reserved its decision and does not give its
reasons for the decision in writing, a party may, within the
period of 28 days after the day on which the decision is given,
request that the Tribunal give its reasons in writing.
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Part 4 Tribunal's procedures
Division 4 Decisions made by Tribunal
s. 79
(2) The Tribunal is to give written reasons that a party requests
under subsection (1) within the period of 90 days after the day
on which it receives the request or within an extension of that
period given by the President.
5 79. Written decision or reasons using transcript
A written transcript of the part of the proceeding in which a
decision is given orally or reasons are given orally is sufficient
for a provision of this Act that requires the decision or reasons
to be in writing.
10 80. Validity of decision
A failure of the Tribunal to comply with a requirement of this
Division does not affect the validity of a decision.
81. When decision has effect
(1) A decision of the Tribunal comes into effect immediately after it
15 is given, or at such later time as is specified in it, except as
otherwise provided in section 29(5).
(2) Subsection (1) does not prevent a stay of the effect of the
decision from being given under section 105.
82. Correcting mistakes
20 (1) The Tribunal may correct a decision it gives or a statement of
the reasons it has given for its decision to the extent necessary
to rectify --
(a) a clerical mistake;
(b) an error arising from an accidental slip or omission;
25 (c) a material miscalculation of figures or a material
mistake in the description of any person, thing, or matter
referred to in the decision; or
(d) a defect of form.
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Tribunal's procedures Part 4
Decisions made by Tribunal Division 4
s. 83
(2) The correction may be made --
(a) on a party's application made in accordance with the
rules; or
(b) on the Tribunal's own initiative.
5 83. Tribunal may review its decision if person was absent
(1) In this section --
"relevant hearing", in relation to a decision of the Tribunal,
means a hearing at which the decision was made or which
preceded the making of the decision.
10 (2) A person in respect of whom the Tribunal makes a decision may
apply to the Tribunal for a review of the decision if the person
did not appear and was not represented at a relevant hearing.
(3) The application has to be made within the time limits specified
by, and otherwise in accordance with, the rules.
15 (4) The rules may limit the number of applications that can be made
under this section in respect of the same matter without the
leave of the Tribunal being obtained.
(5) If on hearing the application the Tribunal is satisfied that the
applicant had a reasonable excuse for not attending or being
20 represented at the relevant hearing, the Tribunal is to review the
decision and may revoke or vary it if the Tribunal considers it
appropriate to do so.
(6) For the hearing of the application the Tribunal is to be
constituted under section 11 by the members by whom it was
25 constituted when it made the decision, if that is practicable.
(7) A review under this section --
(a) is part of the original proceeding and not a new
proceeding; and
(b) is not a review of a decision for the purposes of
30 section 17.
page 49
State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 4 Decisions made by Tribunal
s. 84
84. Enforcement of monetary order
(1) A person to whom payment is to be made under a monetary
order may enforce the order by filing in a court of competent
jurisdiction --
5 (a) a copy of the order that the executive officer has
certified to be a true copy; and
(b) the person's affidavit as to the amount not paid under
the order and, if the order is to take effect upon any
default, as to the making of that default.
10 (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 is taken to be an order of the court, and may
be enforced accordingly, and section 142(1) of the Supreme
Court Act 1935 applies to the amount not paid under the order
15 as if it were payable under a judgment of the court.
85. Enforcement of decision other than monetary order
(1) If, or to the extent that, a decision of the Tribunal is not a
monetary order, it may be enforced under this section.
(2) A person seeking to enforce a decision under this section may
20 file in the Supreme Court --
(a) a copy of the decision that a judicial member or the
executive officer has certified to be a true copy;
(b) the person's affidavit as to the non-compliance with the
decision; and
25 (c) a certificate from a judicial member stating that the
decision is appropriate for filing in the Supreme Court.
(3) No charge is to be made for filing a copy of a decision, an
affidavit, or a certificate under this section.
(4) On filing, the decision is taken to be a decision of the Supreme
30 Court, and may be enforced accordingly.
page 50
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Costs Division 5
s. 86
Division 5 -- Costs
86. Costs of parties and others
(1) Unless otherwise specified in this Act, the enabling Act, or an
order of the Tribunal under this section, parties bear their own
5 costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal
may make an order for the payment by a party of all or any of
the costs of another party or of a person required to produce a
document or other material on the application of the party under
10 section 35.
(3) The power of the Tribunal to make an order for the payment by
a party of the costs of another party includes the power to make
an order for the payment of an amount to compensate the other
party for any expenses, loss, inconvenience, or embarrassment
15 resulting from the proceeding or the matter because of which
the proceeding was brought.
(4) The rules may deal with the effect of certain offers to settle, and
responses, if any, to the offer, on the making of an order for the
payment by a party of the costs of another party.
20 (5) The Tribunal may order that the representative of a party, rather
than the party, in the representative's own capacity compensate
that or any other party for costs incurred because the
representative acted in, or delayed, the proceeding in a way that
resulted in unnecessary costs.
25 87. Costs of proceeding
(1) In this section --
"costs of a proceeding" means costs of, or incidental to, a
proceeding of the Tribunal, other than costs of a party.
(2) The Tribunal may order that all or any of the costs of a
30 proceeding be paid by a party.
page 51
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Part 4 Tribunal's procedures
Division 6 Other procedural provisions
s. 88
(3) If the matter that is the subject of the proceeding comes within
the Tribunal's review jurisdiction, the Tribunal cannot make an
order under this section against a party unless --
(a) the party brought or conducted the proceeding
5 frivolously or vexatiously; or
(b) circumstances have arisen in which the Tribunal could
make an order under section 46, 47 or 48.
88. Amount of costs
If the Tribunal makes an order under this Division for the
10 payment of costs and does not fix the amount of costs, that
amount is to be assessed or settled in accordance with the rules.
Division 6 -- Other procedural provisions
89. Injunction
(1) The Tribunal may by order grant an injunction in any
15 proceeding if it is just and convenient to do so.
(2) The Tribunal's power to make an order under subsection (1) is
exercisable by --
(a) in the case of an interim injunction, a legally qualified
member; and
20 (b) in any other case, a judicial member.
(3) The Tribunal may make the order on the application of a party
or on its own initiative.
(4) An interim injunction may be granted whether or not a person
whose interests may be affected --
25 (a) is a party; or
(b) has been given an opportunity to be heard.
(5) An interim injunction may be granted --
(a) in any case -- for a specified period; and
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Tribunal's procedures Part 4
Other procedural provisions Division 6
s. 90
(b) if granted on the application of a party -- for the period
up to the final determination of that application.
(6) In granting an interim injunction, the Tribunal --
(a) may require an undertaking as to costs or damages as it
5 considers appropriate; and
(b) may provide for the lifting of the injunction if specified
conditions are met.
(7) The Tribunal may assess any costs or damages referred to in
subsection (6)(a) and any amount so assessed is a debt
10 recoverable in a court of competent jurisdiction.
(8) The rules may place conditions on the Tribunal's power to grant
an interim injunction.
(9) The Tribunal's power under this section is in addition to, and
does not limit, any power of the Tribunal under the enabling Act
15 to make an order in the nature of an injunction.
90. Declaration
(1) The Tribunal may make a declaration concerning any matter in
a proceeding instead of any orders it could make, or in addition
to any orders it makes, in the proceeding.
20 (2) The Tribunal's power to make a declaration under
subsection (1) is exercisable only by a judicial member.
(3) The Tribunal's power under this section is in addition to, and
does not limit, any power of the Tribunal under the enabling Act
to make a declaration.
25 (4) The Tribunal may at any time make any order necessary or
desirable to give effect to a declaration made under subsection (1).
page 53
State Administrative Tribunal Bill 2003
Part 4 Tribunal's procedures
Division 6 Other procedural provisions
s. 91
91. Relief from procedural requirements
(1) The rules may provide for the Tribunal to --
(a) extend or abridge a time limit for doing anything in
connection with a proceeding even though the limit is
5 imposed under this Act or the enabling Act; or
(b) waive compliance with any other procedural
requirement in connection with a proceeding.
(2) The extension or waiver may be authorised even though the
time for complying has passed.
10 (3) This section does not apply to the extent, if any, that it is
expressly excluded by the enabling Act.
(4) The Tribunal cannot extend or abridge time or waive
compliance if to do so would cause any prejudice or detriment
to a party or potential party that cannot be remedied by an
15 appropriate order for costs or damages.
92. Entry and inspection
(1) If the presiding member considers it desirable for the purposes
of a proceeding, the Tribunal may --
(a) enter and inspect any place, building, vehicle, vessel or
20 other thing either in the presence of, or without, the parties;
(b) authorise a member of staff of the Tribunal or other
person to enter and inspect any place, building, vehicle,
vessel or other thing for the purpose of preparing a
report to the Tribunal; or
25 (c) order an occupier of any place, building, vehicle, vessel
or other thing relevant to the proceeding to give a person
who is to give evidence in the proceeding reasonable
access to the place, building, vehicle, vessel or other
thing.
page 54
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Tribunal's procedures Part 4
Other procedural provisions Division 6
s. 93
(2) If land or a building is occupied by a person who is not a party,
a power of entry under subsection (1)(a) or (b) cannot be
exercised unless --
(a) the occupier has consented to the entry;
5 (b) notice of the entry has been given to the occupier at least
2 days before the day on which the entry is made; or
(c) a judicial member considers that the need for the entry is
urgent or exceptional.
(3) A power of entry and inspection under subsection (1)(a) is
10 exercisable only by all of the sitting members together, unless
the presiding member directs otherwise.
(4) A power of entry under subsection (1)(a) or (b) may be
exercised at any reasonable time.
(5) A person commits an offence if the person --
15 (a) obstructs or hinders the exercise by a person of a power
given by this section; or
(b) refuses access to any place, building, vehicle, vessel or
other thing to a person seeking access in order to
exercise a power of entry and inspection under this
20 section.
Penalty: $5 000.
93. Tribunal to give Supreme Court documents and things
(1) This section applies if --
(a) a party appeals under section 104 from a decision of the
25 Tribunal; or
(b) a question is referred under section 59(10)(b) to the
Supreme Court for decision.
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Part 4 Tribunal's procedures
Division 6 Other procedural provisions
s. 93
(2) In this section --
"party" means a party in the proceeding of the Tribunal in
respect of which the appeal was instituted or the reference
was made.
5 (3) The executive officer is to give the Supreme Court --
(a) all documents and other material that were before the
Tribunal in connection with the proceeding to which the
appeal or reference relates; and
(b) any other documents and other material in the Tribunal's
10 possession that the Tribunal is required by rules of the
Supreme Court to send to the Court.
(4) The Supreme Court is to return the documents and material to
the Tribunal at the conclusion of the proceeding before the
Supreme Court in relation to the appeal or reference.
15 (5) If any of the documents is protected matter or contains protected
matter, the Supreme Court is to ensure that the protected matter
is not disclosed in any way other than to --
(a) a member of the Court as constituted for the purposes of
the proceeding; or
20 (b) a person to whom disclosure is allowed under
subsection (6).
(6) The Supreme Court may permit a party, or a representative of a
party, to inspect a document to which a certificate under
section 157(2) applies, other than an exempt document, to the
25 extent necessary to disclose anything it contains if --
(a) the certificate does not specify as a reason for
non-disclosure a reason mentioned in
section 157(3)(a), (b) or (d); and
(b) a question for decision by the Supreme Court is whether
30 that thing should be disclosed to some or all of the
parties.
page 56
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Offences Division 7
s. 94
(7) This section does not prevent a disclosure to an officer of the
Supreme Court for the purpose of the performance of duties as
an officer of the Court.
Division 7 -- Offences
5 94. Failing to comply with decision
(1) A person who fails to comply with a decision of the Tribunal
commits an offence.
Penalty: $10 000.
(2) Subsection (1) does not apply if, or to the extent that, the
10 decision is a monetary order.
(3) If the Tribunal made the decision without giving a person an
opportunity to be heard, subsection (1) only applies to that
person on the person being given personally or in accordance
with subsection (4) --
15 (a) a copy of the decision that a judicial member or the
executive officer has certified to be a true copy; and
(b) a copy of this section.
(4) If the Tribunal is satisfied that it is not possible or appropriate
for a person to be personally given the documents referred to in
20 subsection (3), the Tribunal may specify another method for
service of the documents on the person under that subsection.
95. Failing to comply with summons
A person who, without reasonable excuse, fails to comply with
a summons under section 66(1) commits an offence.
25 Penalty: $5 000.
page 57
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Part 4 Tribunal's procedures
Division 7 Offences
s. 96
96. Failing to give evidence as required
A person appearing before the Tribunal commits an offence if,
without reasonable excuse, the person --
(a) refuses to swear an oath or make an affirmation or
5 statutory declaration when required by the Tribunal to
do so; or
(b) refuses to answer a question that the person is required
by the Tribunal to answer.
Penalty: $5 000.
10 97. Giving false or misleading information
A person who gives to the Tribunal information knowing it to
be false or misleading in a material particular commits an
offence.
Penalty: $10 000.
15 98. Misbehaviour and other conduct
A person who --
(a) insults, obstructs or hinders a Tribunal member while
that member is performing functions as a member;
(b) insults, obstructs or hinders a person attending a hearing
20 before the Tribunal;
(c) misbehaves at a hearing before the Tribunal;
(d) interrupts a hearing before the Tribunal; or
(e) obstructs or hinders a person from complying with an
order of the Tribunal or a summons to attend the
25 Tribunal,
commits an offence.
Penalty: $10 000.
page 58
State Administrative Tribunal Bill 2003
Tribunal's procedures Part 4
Arrest warrants Division 8
s. 99
99. Contempt
(1) If the President is satisfied that an act or omission of a person
would constitute a contempt of the Court if a proceeding of the
Tribunal were a proceeding in the Supreme Court, the President
5 may report that act or omission to the Supreme Court and the
Court has jurisdiction to deal with the matter as if it were a
contempt of the Court.
(2) If --
(a) subsection (1) applies to an act or omission by a person
10 and that act or omission is also an offence under this
Act; and
(b) the person has been dealt with under subsection (1) for
the act or omission,
the person is not liable to be punished for the offence under this
15 Act.
Division 8 -- Arrest warrants
100. Exercise of powers under this Division
The Tribunal's powers under this Division are exercisable only
by a judicial member.
20 101. Arrest
(1) If a person fails to attend as required by a summons under
section 66(1), the Tribunal may, on proof by a statement
verified by statutory declaration that the summons was served,
issue a warrant for the apprehension of that person.
25 (2) A warrant issued under this section authorises any person to
whom it is addressed --
(a) to apprehend the person named in the warrant at any
time and bring the person before the Tribunal; and
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Division 8 Arrest warrants
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(b) for that purpose, to detain the person named in the
warrant in custody until released by order of the
Tribunal or, on review, by order of the Supreme Court.
(3) The person executing the warrant may --
5 (a) break and enter any place, building, vehicle, vessel or
other thing for the purpose of executing the warrant; and
(b) use reasonable force and assistance to apprehend the
person named in the warrant.
(4) The apprehension of a person under this section does not
10 prevent the person from being dealt with under section 99 for
contempt.
102. Conditional release from custody
(1) The release of a person by order of the Tribunal under
section 101(2)(b) may be made subject to one or more of the
15 following conditions --
(a) a condition that the person appear and report before the
Tribunal in accordance with the terms of the order
unless excused from attendance or until released from
further attendance by the Tribunal;
20 (b) conditions for the purpose of ensuring the further
attendance of the person before the Tribunal (for
example, the provision of sureties by the person, the
surrender of any passport held by the person, a
requirement as to where the person is to live and regular
25 reporting by the person to the Tribunal);
(c) any other condition that the Tribunal thinks appropriate.
(2) The Tribunal may by order amend, revoke or add to those
conditions.
(3) A person who without reasonable excuse fails to comply with a
30 condition to which the release of the person under
section 101(2)(b) is subject is guilty of an offence.
Penalty: $5 000.
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103. Review by Supreme Court
(1) A person who has not been released by the Tribunal under
section 101(2)(b) or whose release under that provision is
subject to one or more conditions may apply to the Supreme
5 Court for a review of the decision not to release the person or of
the terms of one or more of those conditions.
(2) The Supreme Court may do either or both of the following --
(a) affirm or set aside a decision by the Tribunal not to
release the person or any condition imposed by the
10 Tribunal on the release of the person;
(b) make any order that the Tribunal may make in relation
to the detention or release of the person.
(3) The Supreme Court may also exercise its powers under
subsection (2) where the Tribunal has not made a decision
15 within a reasonable time on the release of the person.
(4) An order under subsection (2) is taken to be an order of the
Tribunal.
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Part 5 -- Appeals from Tribunal's decisions
104. Appeal from Tribunal's decision
(1) A party to a proceeding may appeal from a decision of the
Tribunal in the proceeding, but only if the court to which the
5 appeal lies gives leave to appeal.
(2) The appeal can only be brought on a question of law unless it is
otherwise expressly stated.
(3) The appeal lies to --
(a) the Full Court, if the decision was made by --
10 (i) a judicial member; or
(ii) the Tribunal constituted by members who
include a judicial member;
(b) the Supreme Court, in any other case.
(4) In subsection (3)(a) --
15 "Full Court" has the meaning given to that term in the Supreme
Court Act 1935 section 4.
(5) An application for leave to appeal has to be made in accordance
with the rules of the Supreme Court and within the period of
28 days after --
20 (a) the day on which the Tribunal's decision is given; or
(b) if the Tribunal gives its decision without giving written
reasons for its decision and the party then requests it to
give written reasons under section 77, the day on which
the written reasons are given to the party.
25 (6) If leave is granted, the appeal has to be instituted in accordance
with the rules of the Supreme Court and within the period of
21 days after the day on which leave is granted.
(7) The court to which the appeal lies may extend a time limit fixed
by this section, and the extension may be given even though the
30 time limit has passed.
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(8) A party instituting an appeal is to notify the executive officer
but the Tribunal is not a party to the appeal and nor is any
Tribunal member.
(9) The court dealing with the appeal may --
5 (a) affirm, vary, or set aside the decision of the Tribunal;
(b) make any decision that the Tribunal could have made in
the proceeding; or
(c) send the matter back to the Tribunal for reconsideration,
either with or without the hearing of further evidence, in
10 accordance with any directions or recommendations that
the court considers appropriate,
and, in any case, may make any order the court considers
appropriate.
(10) If the court sends the matter back to the Tribunal under
15 subsection (9)(c), it is to give directions as to whether or not the
Tribunal reconsidering the matter is to be constituted by the
member or members who made the original decision.
(11) If the Tribunal's decision is made in a proceeding prescribed by
the regulations, a party cannot apply for leave to appeal under
20 this section unless the party agrees to indemnify each other
party to the proceeding against that other party's reasonable
legal costs of the appeal.
105. Effect of decision against which appeal made
(1) The Supreme Court may, by order, stay the operation of a
25 decision of the Tribunal pending the determination of an
application for leave to appeal from the decision and of any
appeal.
(2) Subject to any order made by the Supreme Court, an appeal
does not affect the operation of the decision appealed against or
30 prevent the taking of action to implement the decision.
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Division 1 Members of the Tribunal
s. 106
Part 6 -- Tribunal's membership and other provisions
Division 1 -- Members of the Tribunal
Subdivision 1 -- Kinds of members
106. Tribunal members
5 The Tribunal is to have --
(a) judicial members, being --
(i) the President; and
(ii) at least one Deputy President;
and
10 (b) other members, each of whom is either a senior member
or an ordinary member.
Subdivision 2 -- President
107. Appointment of President
(1) A person is appointed as the President of the Tribunal by the
15 Governor on the recommendation of the Minister.
(2) The appointment is to be by means of a commission under the
Public Seal of the State.
(3) A person cannot be the President unless the person is a Judge of
the Supreme Court.
20 (4) Before recommending a person for appointment as the
President, the Minister is to consult the Chief Justice of Western
Australia.
108. Tenure of President's office
(1) The term for which a person is appointed as the President is to
25 be fixed in the commission and is to be not longer than 5 years.
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(2) A person's eligibility for reappointment or the term for which a
person may be reappointed is not affected by an earlier
appointment.
109. Vacating office prematurely
5 (1) A person may resign from office as the President by giving the
Governor a signed letter of resignation.
(2) A resignation is not effective until the Governor has accepted it.
(3) If a resignation is accepted it takes effect when it is accepted or
at any later date stated in the letter.
10 (4) A person who has resigned from office as the President is not
precluded from again being appointed to the office.
(5) The person who holds office as the President does so during
good behaviour but the Governor may, on the address of both
Houses of Parliament, terminate the person's term of office.
15 (6) If the person who holds office as the President becomes
ineligible, because of section 107(3), to hold the office, the
person's term of office terminates.
110. President's status as Supreme Court Judge
(1) The appointment of a person as the President does not affect the
20 person's tenure of office as, or status as, a Judge of the Supreme
Court nor the payment of the person's salary or allowances as a
Judge nor any other rights or privileges of the person as a Judge.
(2) A person's service in the office of President is to be taken for all
purposes to be service in the person's office of Judge of the
25 Supreme Court.
(3) Nothing in this Act prevents a person who holds office as the
President from doing anything in the person's capacity as a
Judge of the Supreme Court.
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s. 111
(4) A person's resignation from office as the President or the
termination of a person's term of office as the President does
not affect the person's office as a Judge of the Supreme Court.
Subdivision 3 -- Deputy President
5 111. Appointment of Deputy President
(1) A person is appointed as a Deputy President of the Tribunal by
the Governor on the recommendation of the Minister.
(2) The appointment is to be by means of a commission under the
Public Seal of the State.
10 (3) A person cannot be a Deputy President unless the person is a
Judge of the District Court.
(4) Before recommending a person for appointment as a Deputy
President, the Minister is to consult the Chief Justice of Western
Australia and the Chief Judge of the District Court.
15 112. Tenure of Deputy President's office
(1) The term for which a person is appointed as a Deputy President
is to be fixed in the commission and is to be not longer than
5 years.
(2) A person's eligibility for reappointment or the term for which a
20 person may be reappointed is not affected by an earlier
appointment.
113. Vacating office prematurely
(1) A person may resign from office as a Deputy President by
giving the Governor a signed letter of resignation.
25 (2) A resignation is not effective until the Governor has accepted it.
(3) If a resignation is accepted it takes effect when it is accepted or
at any later date stated in the letter.
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s. 114
(4) A person who has resigned from office as a Deputy President is
not precluded from again being appointed to the office.
(5) A person who holds office as a Deputy President does so during
good behaviour but the Governor may, on the address of both
5 Houses of Parliament, terminate the person's term of office.
(6) If a person who holds office as a Deputy President becomes
ineligible, because of section 111(3), to hold the office, the
person's term of office terminates.
114. Deputy President's status as District Court Judge
10 (1) The appointment of a person as a Deputy President does not
affect the person's tenure of office as, or status as, a Judge of
the District Court nor the payment of the person's salary or
allowances as a Judge nor any other rights or privileges of the
person as a Judge.
15 (2) A person's service in an office of Deputy President is to be
taken for all purposes to be service in the person's office of
Judge of the District Court.
(3) Nothing in this Act prevents a person who holds office as a
Deputy President from doing anything in the person's capacity
20 as a Judge of the District Court.
(4) A person's resignation from office as a Deputy President or the
termination of a person's term of office as a Deputy President
does not affect the person's office as a Judge of the District
Court.
25 Subdivision 4 -- Other members
115. Appointment of non-judicial members
(1) A person is appointed as a member of the Tribunal, other than
the President or a Deputy President, by the Governor on the
recommendation of the Minister.
30 (2) The appointment is to be in writing.
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(3) A person cannot be a non-judicial member unless the person --
(a) is a qualified person and has had not less than 5 years'
legal experience; or
(b) has, in the opinion of the Minister, extensive or special
5 knowledge of, or experience with, any class of matter
involved in the exercise of the Tribunal's jurisdiction.
(4) A person's appointment may be as a senior member of the
Tribunal if the person --
(a) is a qualified person and has had not less than 8 years'
10 legal experience; or
(b) has, in the opinion of the Minister, extensive knowledge
of, or experience with, any class of matter involved in
the exercise of the Tribunal's jurisdiction.
(5) An office of magistrate may be held in conjunction with an
15 office of non-judicial member and sections 117 and 118 do not
apply in that case.
(6) Before recommending a person for appointment as a
non-judicial member, the Minister is to consult the President
and, in the case of a magistrate, the Chief Stipendiary
20 Magistrate, and may also consult any appropriate Minister,
person or body.
116. Tenure of non-judicial office
(1) The office of a non-judicial member is to be held on a full-time
basis, part-time basis or sessional basis.
25 (2) The term for which a person is appointed as a non-judicial
member is to be fixed in the instrument of appointment and is to
be not longer than 5 years.
(3) A person's eligibility for reappointment or the term for which a
person may be reappointed is not affected by an earlier
30 appointment.
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s. 117
117. Conditions of service as non-judicial member
(1) A non-judicial member is entitled to the emoluments and
benefits determined by the Governor unless the Salaries and
Allowances Act 1975 applies to the member's office.
5 (2) The cost of emoluments and benefits under subsection (1) is to
be charged to the Consolidated Fund and this subsection
appropriates the Consolidated Fund accordingly.
(3) The emoluments and benefits to which a non-judicial member is
entitled cannot, during the member's term of office, be changed
10 to be less favourable without the member's consent.
(4) The Governor may determine the leave of absence to which a
non-judicial member is entitled and any other terms and
conditions of service as a non-judicial member.
118. Outside employment prohibited
15 (1) A non-judicial member who is appointed on a full-time basis is
not allowed to engage in the practice of any profession or in any
paid employment (whether or not within Western Australia)
outside the duties of office as a member of the Tribunal except
with the consent of the President and in accordance with any
20 conditions attached to that consent.
(2) A non-judicial member who is appointed on a part-time basis is
allowed to engage in the practice of any profession or in any
paid employment (whether or not within Western Australia)
outside the duties of office as a member of the Tribunal only
25 if --
(a) the member has first advised the President in writing;
and
(b) the President has not advised the member that, in the
President's opinion, to do so would or may conflict with
30 the proper performance of the member's duties of office.
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(3) Despite anything in this section a non-judicial member is not
allowed to engage in any paid employment as a public sector
employee.
(4) A non-judicial member who is appointed on a part-time basis is
5 not allowed to represent another person in a matter that is before
the Tribunal.
119. Code of conduct
(1) The President is to make and maintain a written code of conduct
applying to each person performing functions as a non-judicial
10 member.
(2) To the extent that the President considers appropriate, the
President is to consult with Tribunal members, members of staff
of the Tribunal, the Commissioner for Public Sector Standards
under the Public Sector Management Act 1994 and other
15 persons about what the code of conduct should contain.
(3) Each person performing functions as a non-judicial member is
to comply with the code of conduct.
120. Suspension of non-judicial member
(1) The President, with the approval of the Minister, may suspend a
20 person who is a non-judicial member from office if the
President believes --
(a) that there may be a reason under section 121 to
terminate the person's term of office; or
(b) that the person is the subject of a matter before the
25 Tribunal otherwise than as a Tribunal member.
(2) A person who is suspended from office under this section
(called the "person suspended" in sections 122 to 124) remains
entitled to the emoluments of the office while suspended.
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s. 121
121. Why termination may be recommended
The reasons for which the term of office of a person may be
terminated are that the person --
(a) has been convicted of an indictable offence or an
5 offence that, if committed in Western Australia, would
be an indictable offence;
(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.
10 122. Investigation of non-judicial member
(1) As soon as practicable after the President suspends a person
from office under section 120(1)(a), the President is to appoint a
person nominated by the President to undertake an investigation
into the conduct or circumstances that led to the suspension.
15 (2) The person appointed under subsection (1) (called the
"investigator" in subsection (3) and sections 123 and 124) is
to --
(a) investigate the conduct of the person suspended;
(b) report to the Minister on the investigation; and
20 (c) give a copy of the report to the person suspended and
the President.
(3) The investigator's report may include a recommendation that
the term of office of the person suspended be terminated.
123. Action on investigator's report
25 (1) After considering the report and consulting the President, the
Minister may recommend that the Governor terminate the term
of office of the person suspended.
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(2) If the Minister decides not to recommend that the term of office
of the person suspended be terminated --
(a) the Minister is to inform the President as soon as
practicable after receiving the investigator's report; and
5 (b) the President is to terminate the suspension.
124. Deciding whether to recommend termination
(1) Neither the investigator nor the Minister can recommend that
the term of office of the person suspended be terminated unless
satisfied that there is a reason under section 121 to terminate it.
10 (2) The Minister cannot recommend that the term of office of the
person suspended be terminated unless the person has been
given a reasonable opportunity to make written and oral
submissions to the investigator and the President.
(3) The Minister may, in deciding whether or not to recommend
15 that the term of office of the person suspended be terminated,
rely on the investigator's report.
125. Vacating office prematurely
(1) A non-judicial member may resign from office by giving the
Minister a signed letter of resignation addressed to the
20 Governor.
(2) A resignation is not effective until the Governor has accepted it.
(3) If a resignation is accepted it takes effect when it is accepted or
at any later date stated in the letter.
(4) A person who has resigned from office as a non-judicial
25 member is not precluded from again being appointed as a
non-judicial member.
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Acting and supplementary members Division 2
s. 126
(5) The period for which a person who is a non-judicial member
was appointed may at any time be terminated by the Governor
on the grounds of --
(a) the person having been convicted of an indictable
5 offence or an offence that, if committed in Western
Australia, would be an indictable offence;
(b) the person being an insolvent under administration
according to the meaning of that term in the
Corporations Act 2001 of the Commonwealth; or
10 (c) the Minister having recommended under section 123(1)
that the Governor terminate the person's term of office.
Division 2 -- Acting and supplementary members
Subdivision 1 -- Acting President
126. Appointment to act as President
15 (1) If there is, or is expected to be, a vacancy in the office of
President or the President is, or is expected to be, absent or, for
any other reason, unable to perform the duties of office, a
person may be appointed in accordance with this section to act
in the office of President.
20 (2) The appointment is to be for a term not exceeding 6 months
specified in the instrument of appointment and it may be
made --
(a) by the Governor; or
(b) if the appointment is for a term not exceeding 3 months
25 and the Minister has not previously appointed the person
under this section, by the Minister.
(3) A person cannot be appointed to act in the office of President
unless the person is a Judge of the Supreme Court.
(4) Before appointing a person, or recommending that the Governor
30 appoint a person, to act in the office of President, the Minister is
to consult the Chief Justice of Western Australia.
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s. 127
(5) A person's eligibility for reappointment or the term for which a
person may be reappointed is not affected by an earlier
appointment.
127. Terminating acting prematurely
5 (1) A person appointed to act in the office of President may resign
from acting in the office by giving the Minister a signed letter of
resignation.
(2) A resignation is not effective until the Minister has accepted it.
(3) If a resignation is accepted it takes effect when it is accepted or
10 at any later date stated in the letter.
(4) A person who has resigned from acting in the office of President
is not precluded from again being appointed to act in the office.
(5) The period for which a person was appointed to act in the office
of President may at any time be terminated by the Governor.
15 (6) If a person appointed to act in the office of President ceases to
be a Judge of the Supreme Court, the person's term of office
terminates.
128. Acting President's status as Supreme Court Judge
(1) The appointment of a person to act in the office of President
20 does not affect the person's tenure of office as, or status as, a
Judge of the Supreme Court nor the payment of the person's
salary or allowances as a Judge nor any other rights or
privileges of the person as a Judge.
(2) A person's service acting in the office of President is to be taken
25 for all purposes to be service in the person's office of Judge of
the Supreme Court.
(3) Nothing in this Act prevents a person who acts in the office of
President from doing anything in the person's capacity as a
Judge of the Supreme Court.
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(4) A person's resignation from acting in the office of President or
the termination of a person's term of acting in the office of
President does not of itself affect the person's office as a Judge
of the Supreme Court.
5 129. Deputy President may sometimes act as President
(1) If there is a vacancy in the office of President or the President is
absent or, for any other reason, unable to perform the duties of
office, the person holding office as Deputy President, or the
senior of them if there is more than one, may act in the office of
10 President unless a person has been appointed under section 126
to act.
(2) If there is more than one person holding office as Deputy
President the Minister may resolve any question as to which of
them is the senior.
15 130. Deputy President's allowance for acting as President
A person holding office as Deputy President who acts in the
office of President is entitled to be paid an allowance
representing the difference between the emoluments and
benefits for the office of President and the emoluments and
20 benefits to which the person is entitled for holding office as
Deputy President.
131. Consequences of acting
A person acting in the office of President as authorised by an
appointment under section 126 or by section 129 is to be
25 regarded as the President for the purposes of this Act and
enabling Acts.
Subdivision 2 -- Acting Deputy President
132. Appointment to act as Deputy President
(1) If there is, or is expected to be, a vacancy in an office of Deputy
30 President or a Deputy President is, or is expected to be, absent
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s. 133
or, for any other reason, unable to perform the duties of office, a
person may be appointed in accordance with this section to act
in the office of Deputy President.
(2) The appointment is to be for a term not exceeding 6 months
5 specified in the instrument of appointment and it may be
made --
(a) by the Governor; or
(b) if the appointment is for a term not exceeding 3 months
and the Minister has not previously appointed the person
10 under this section, by the Minister.
(3) A person cannot be appointed to act in an office of Deputy
President unless the person is a Judge of the District Court.
(4) Before appointing a person, or recommending that the Governor
appoint a person, to act in an office of Deputy President, the
15 Minister is to consult the Chief Justice of Western Australia and
the Chief Judge of the District Court.
(5) A person's eligibility for reappointment or the term for which a
person may be reappointed is not affected by an earlier
appointment.
20 133. Terminating acting prematurely
(1) A person appointed to act in an office of Deputy President may
resign from acting in the office by giving the Minister a signed
letter of resignation.
(2) A resignation is not effective until the Minister has accepted it.
25 (3) If a resignation is accepted it takes effect when it is accepted or
at any later date stated in the letter.
(4) A person who has resigned from acting in an office of Deputy
President is not precluded from again being appointed to act in
the office.
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s. 134
(5) The period for which a person was appointed to act in an office
of Deputy President may at any time be terminated by the
Governor.
(6) If a person appointed to act in an office of Deputy President
5 ceases to be a Judge of the District Court, the person's term of
office terminates.
134. Acting Deputy President's status as District Court Judge
(1) The appointment of a person to act in an office of Deputy
President does not affect the person's tenure of office as, or
10 status as, a Judge of the District Court nor the payment of the
person's salary or allowances as a Judge nor any other rights or
privileges of the person as a Judge.
(2) A person's service acting in an office of Deputy President is to
be taken for all purposes to be service in the person's office of
15 Judge of the District Court.
(3) Nothing in this Act prevents a person who acts in an office of
Deputy President from doing anything in the person's capacity
as a Judge of the District Court.
(4) A person's resignation from acting in an office of Deputy
20 President or the termination of a person's term of acting in an
office of Deputy President does not of itself affect the person's
office as a Judge of the District Court.
135. Consequences of acting
A person acting in an office of Deputy President as authorised
25 by an appointment under section 132 is to be regarded as a
Deputy President for the purposes of this Act and enabling Acts.
Subdivision 3 -- Supplementary judicial members
136. Supplementary President
(1) Even though there is no vacancy in the office of President and
30 the holder of that office is performing duties of the office, the
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s. 137
Minister, on the request of the President, may temporarily
appoint a person as a supplementary President to act as the
President in relation to a particular matter or matters or for a
specified period.
5 (2) A person cannot be appointed as a supplementary President
unless the person is a Judge, acting Judge, auxiliary Judge or
retired Judge of the Supreme Court and, except in the case of a
retired Judge, can only be appointed with the consent of the
Chief Justice of Western Australia.
10 (3) The appointment is to be in writing.
(4) The person appointed may act as the President in relation to a
matter, or for the period, for which the person is appointed, and
when acting under the appointment the person is to be regarded
as the President for the purposes of this Act and enabling Acts.
15 (5) Subsection (4) does not authorise the person appointed to
perform functions of the kind set out in
section 11, 52(2), 54(2), 115(6) or 119, Division 1
Subdivision 4, section 142(2), Part 7 or section 150, 164(8)
or 167(2).
20 (6) Section 127(1) to (5) apply with any necessary modifications to
an appointment under this section.
137. Supplementary President's status as Supreme Court Judge
(1) The appointment of a Judge of the Supreme Court as a
supplementary President to act as the President does not affect
25 the person's tenure of office as, or status as, a Judge of the
Supreme Court nor the payment of the person's salary or
allowances as a Judge nor any other rights or privileges of the
person as a Judge.
(2) Service of a Judge of the Supreme Court as a supplementary
30 President acting as the President is to be taken for all purposes
to be service in the person's office of Judge of the Supreme
Court.
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(3) Nothing in this Act prevents a Judge of the Supreme Court who
acts as the President under this Subdivision from doing anything
in the person's capacity as a Judge of the Supreme Court.
138. Supplementary Deputy Presidents
5 (1) Even though there is no vacancy in an office of Deputy
President and each holder of an office of Deputy President is
performing duties of the office, the Minister, on the request of
the President, may temporarily appoint a person as a
supplementary Deputy President to act as a Deputy President in
10 relation to a particular matter or matters or for a specified
period.
(2) A person cannot be appointed as a supplementary Deputy
President unless the person is a Judge, acting Judge, auxiliary
Judge or retired Judge of the District Court and, except in the
15 case of a retired Judge, can only be appointed with the consent
of the Chief Judge of the District Court.
(3) The appointment is to be in writing.
(4) The person appointed may act as a Deputy President in relation
to a matter, or for the period, for which the person is appointed,
20 and when acting under the appointment the person is to be
regarded as a Deputy President for the purposes of this Act and
enabling Acts.
(5) Section 133(1) to (5) apply with any necessary modifications to
an appointment under this section.
25 139. Supplementary Deputy President's status as District Court
Judge
(1) The appointment of a Judge of the District Court as a
supplementary Deputy President to act as a Deputy President
does not affect the person's tenure of office as, or status as, a
30 Judge nor the payment of the person's salary or allowances as a
Judge nor any other rights or privileges of the person as a Judge.
page 79
State Administrative Tribunal Bill 2003
Part 6 Tribunal's membership and other provisions
Division 3 Other matters about Tribunal members
s. 140
(2) Service of a Judge of the District Court as a supplementary
Deputy President acting as a Deputy President is to be taken for
all purposes to be service in the person's office of Judge of the
District Court.
5 (3) Nothing in this Act prevents a Judge of the District Court who
acts as a Deputy President under this Subdivision from doing
anything in the person's capacity as a Judge of the District
Court.
Division 3 -- Other matters about Tribunal members
10 140. Fixing the period of appointment
In fixing the periods for which judicial members and
non-judicial members are appointed regard shall be had to the
security of tenure of Tribunal members and the development
and retention of a membership that has experience and expertise
15 in the exercise of the Tribunal's jurisdiction.
141. Training
(1) The judicial members are responsible for directing the
education, training, and professional development of the
Tribunal members.
20 (2) The Rules Committee is to assist the judicial members in
carrying out the functions given by subsection (1) so far as they
are functions that relate to the rules, the practice notes and
practice and procedure generally.
(3) The Minister is to ensure that appropriate provision is made for
25 the education, training, and professional development of the
Tribunal members.
142. Disclosure of interests
(1) This section applies to a person who constitutes, or is to
constitute, the Tribunal for the purposes of a particular matter,
30 whether with or without others, and who has or acquires an
page 80
State Administrative Tribunal Bill 2003
Tribunal's membership and other provisions Part 6
Other matters about Tribunal members Division 3
s. 143
interest, pecuniary or otherwise, that could conflict with the
proper performance of the person's functions as a member in
relation to that matter.
(2) The person is to disclose the nature of the person's interest to
5 the President or, if the person is the President, to the Chief
Justice of Western Australia.
(3) The person is not allowed to be a sitting member of the
Tribunal, or perform any function as a Tribunal member, in
relation to the matter unless each of the parties involved agrees.
10 143. Completion of matters
(1) A former Tribunal member may, despite the expiration of the
member's term of appointment, complete or otherwise continue
to deal with any matters relating to proceedings before the
Tribunal that have been heard or partly heard by the member
15 before the expiration of that term.
(2) While completing or otherwise dealing with matters under
subsection (1), a former Tribunal member is taken to have all
the powers and immunities as a Tribunal member that the
former member had immediately before the expiration of his or
20 her term of appointment.
page 81
State Administrative Tribunal Bill 2003
Part 7 Administration
s. 144
Part 7 -- Administration
144. Responsibility for administration of Act
(1) The President is responsible to the Minister for the
administration of this Act.
5 (2) Without limiting subsection (1), the President is responsible for
organising the business of the Tribunal, including where and
when it will conduct hearings.
145. President to advise Minister
It is a function of the President to advise the Minister of any
10 action that the President considers would lead to --
(a) the more convenient, economic, and efficient disposal of
the business of the Tribunal;
(b) the avoidance of delay in the conduct of proceedings; or
(c) this Act or an enabling Act being rendered more
15 effective.
146. Executive officer and other staff of Tribunal
(1) The chief executive officer is to make an officer of the
Department available to perform, under the control of the
President, the functions under this Act of the executive officer
20 of the Tribunal and assist in the administration of this Act and
the exercise of the Tribunal's jurisdiction.
(2) In addition, the chief executive officer is to make other officers
of the Department available to assist, under the control of the
executive officer, in the administration of this Act and the
25 exercise of the Tribunal's jurisdiction.
(3) Otherwise, the services and facilities of the Department may be
used for the purposes of this Act on such terms as are agreed to
by the President and the chief executive officer.
page 82
State Administrative Tribunal Bill 2003
Administration Part 7
s. 147
147. Delegation by judicial member
(1) A judicial member may delegate to another person a power or
duty given by this Act that is of an administrative nature.
(2) The President cannot delegate a power or duty under section 11
5 to a person other than a Deputy President.
(3) The person making the delegation is to make it in writing and
sign it.
(4) A person to whom a power or duty is delegated in accordance
with this section cannot delegate that power or duty.
10 (5) A person exercising or performing a power or duty that has been
delegated to the person in accordance with this section is taken
to do so in accordance with the terms of the delegation unless
the contrary is shown.
(6) Nothing in this section limits an ability to perform a function
15 through an officer or agent.
148. Annual reports of the Tribunal
(1) The President is required, on or before 30 September in each
year, to submit to the Minister an annual report on the activities
of the Tribunal during the year ending on the preceding 30 June.
20 (2) The annual report is to include details of --
(a) the number, nature, and outcome, of matters that have
come before the Tribunal;
(b) the number and nature of matters that are outstanding;
(c) any trends or special problems that may have emerged;
25 (d) the level of compliance by decision-makers with
requirements to --
(i) notify persons of reviewable decisions and their
rights to seek review; and
(ii) provide written reasons for reviewable decisions
30 when requested to do so;
page 83
State Administrative Tribunal Bill 2003
Part 7 Administration
s. 149
(e) forecasts of the workload of the Tribunal in the year
after the year to which the report relates; and
(f) any proposals for improving the operation of the
Tribunal.
5 (3) The Minister is to cause a copy of each report submitted under
subsection (1) to be laid before each House of Parliament within
28 days after submission of the report.
(4) The President, if requested to do so by the Minister, is to report
to the Minister about the jurisdiction and functions of the
10 Tribunal or any matter connected with the exercise of that
jurisdiction or the carrying out of those functions.
(5) The President may, from time to time, report to the Minister
about anything referred to in subsection (4) whether or not the
President has been requested to do so.
15 149. Laying before House of Parliament that is not sitting
(1) If --
(a) at the commencement of the period within which
section 148(3) requires a copy of a report to be laid
before a House of Parliament, the House is not sitting;
20 and
(b) the Minister is of the opinion that the House will not sit
during that period,
the Minister is to transmit a copy of the report to the Clerk of
the House.
25 (2) A copy of a report transmitted to the Clerk of a House is to be
regarded as having been laid before that House.
(3) The laying of a copy of a report that, under subsection (2), is to
be regarded as having occurred is to be recorded in the Minutes,
or Votes and Proceedings, of the House on the first sitting day
30 of the House after the Clerk received the copy.
page 84
State Administrative Tribunal Bill 2003
Other matters Part 8
s. 150
Part 8 -- Other matters
150. Official seal
The Tribunal is to have a seal or as many seals as the President
considers appropriate.
5 151. Judicial notice
(1) All courts and persons acting judicially are required to take
judicial notice of --
(a) the signature of a person who is, or was, a member of
the Tribunal or the executive officer;
10 (b) the fact that a person referred to in paragraph (a) is or
was a member or the executive officer, as the case
requires; and
(c) an official seal of the Tribunal affixed to a document.
(2) If an official seal of the Tribunal is affixed to a document, a
15 court or person acting judicially is to presume that it was
properly affixed unless the contrary is proved.
152. Validity of decisions
A decision of the Tribunal is not invalid only because --
(a) there was a defect or irregularity in, or in connection
20 with, a person's appointment to an office or to act in an
office;
(b) a person holding office as Deputy President acted in the
office of President when the person was not the senior
person holding office as Deputy President;
25 (c) a person acted in the office of President or an office of
Deputy President when the occasion for the person to
act in the office had not arisen or had ceased;
(d) a person represents another person in a matter that is
before the Tribunal contrary to section 118; or
page 85
State Administrative Tribunal Bill 2003
Part 8 Other matters
s. 153
(e) a person acted or performed a function contrary to
section 11(9) or 142(3).
153. Register of proceedings
(1) The executive officer is to keep a register of proceedings
5 containing the details specified in the regulations.
(2) The executive officer is to ensure that the register is available
for inspection at any time that the Tribunal's office is open to
the public for business.
(3) A person may --
10 (a) inspect the register; and
(b) obtain a copy of any part of the register.
(4) The regulations --
(a) may require a person who exercises or wishes to
exercise a right under subsection (3) to pay a fee
15 specified in the regulations; and
(b) may require that the fee be paid before the right can be
exercised,
except that there is to be no fee for a party to a proceeding
inspecting that part of the register that relates to the proceeding.
20 (5) A right under subsection (3) does not apply to the extent, if any,
that it is inconsistent with --
(a) any condition specified in the rules;
(b) any order of the Tribunal under section 61; or
(c) the duty that this Act or an enabling Act places on the
25 Tribunal to ensure that certain things are not disclosed
or are not made available.
154. Publication of Tribunal's decisions
(1) The Tribunal may publish its decisions, or any of them.
page 86
State Administrative Tribunal Bill 2003
Other matters Part 8
s. 155
(2) A decision may be published under subsection (1) with or
without the reasons for it.
(3) However section 62 applies to the publication of reasons.
155. Secrecy
5 (1) This section applies to any person who is or has been --
(a) a member of the Tribunal;
(b) the executive officer or any other member of staff of the
Tribunal; or
(c) a person acting under the authority of the Tribunal.
10 (2) Except as permitted by this section, a person to whom this
section applies commits an offence if the person directly or
indirectly makes a record of, or discloses to any person, any
information about the affairs of a person acquired in the
performance of functions under or in connection with this Act
15 or an enabling Act.
Penalty: $5 000.
(3) A person to whom this section applies may record or disclose
information referred to in subsection (2) --
(a) with the written consent of the person to whom the
20 information relates; or
(b) in connection with the performance of functions under
this Act or an enabling Act.
(4) A person to whom this section applies may disclose any
information referred to in subsection (2) to a member of the
25 Police Force for the purposes of reporting a suspected offence
or assisting in the investigation of a suspected offence.
(5) A person to whom this section applies may disclose any
information referred to in subsection (2) for statistical purposes
to a person approved by the Minister provided that the
30 information does not identify any person to whom it relates.
page 87
State Administrative Tribunal Bill 2003
Part 8 Other matters
s. 156
(6) Nothing in this section applies to the recording or 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
5 held in private); or
(b) a decision of the Tribunal or the reasons for it.
156. Protection from disclosure by others
(1) A person to whom information referred to in section 155(2) is
disclosed, and any employee of that person, is subject to the
10 same obligations and liabilities with respect to the recording or
disclosure of the information as they would be if they were a
person to whom section 155 applied who had acquired the
information in the performance of functions under this Act or an
enabling Act.
15 (2) Subsection (1) does not apply to a member of the Police Force
to whom information is disclosed under section 155(4).
157. Whether disclosure contrary to public interest
(1) In this section --
"certificate" means a certificate under subsection (2);
20 "document" includes a part of a document.
(2) 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 described in subsection (3) that is specified
25 in the certificate.
(3) The certificate may specify that the disclosure would be
contrary to the public interest --
(a) because the disclosure would reveal deliberations or
decisions of --
30 (i) Cabinet;
(ii) a committee of Cabinet;
page 88
State Administrative Tribunal Bill 2003
Other matters Part 8
s. 157
(iii) a subcommittee of a committee of Cabinet; or
(iv) Executive Council;
(b) because the disclosure would reveal something that
parliamentary privilege protects from disclosure;
5 (c) because the disclosure would endanger the national or
international security of Western Australia or Australia;
(d) because the disclosure would damage
inter-governmental relations; or
(e) for any other reason that could form the basis for a claim
10 by the State in a proceeding in the Supreme Court that
the information or matter should not be disclosed.
(4) The Tribunal constituted by the President sitting alone may
order that the disclosure of any particular information or
document to which a certificate applies would not be contrary to
15 the public interest and, subject to subsection (7), the order has
effect despite the certificate.
(5) Any information or document to which a certificate applies is
required, if requested, to be disclosed to the Tribunal constituted
by the President sitting alone for the purpose of deciding
20 whether to make an order under subsection (4).
(6) For the purposes of section 104 the question of whether or not
the disclosure of any particular information or document would
be contrary to the public interest is a question of law.
(7) If the Attorney General appeals under section 104 from a
25 decision of the Tribunal to make an order under subsection (4),
the Attorney General may notify the Tribunal in writing that the
certificate is confirmed and in that case the certificate continues
to have effect and the order ceases to have effect --
(a) pending the determination of the application for leave to
30 appeal; and
(b) if leave is granted, pending the determination of the
appeal.
page 89
State Administrative Tribunal Bill 2003
Part 8 Other matters
s. 158
158. How Tribunal is to deal with protected matter
(1) The Tribunal is to ensure that protected matter provided to the
Tribunal is returned to the person by whom it was provided
when no longer required by the Tribunal.
5 (2) The Tribunal is to ensure that protected matter provided to the
Tribunal is not disclosed in any way other than to --
(a) a sitting member of the Tribunal; or
(b) a person to whom disclosure is allowed under
subsection (3).
10 (3) The Tribunal, with the consent of the President, may allow a
party, or a representative of a party, to have access to
information, or inspect a document, to which a certificate under
section 157(2) applies on any conditions the Tribunal thinks fit
except that a person cannot be given access to, or allowed to
15 inspect, an exempt document or information in it.
159. Application of the Freedom of Information Act 1992
This Act does not affect the application of the Freedom of
Information Act 1992 to the disclosure of an exempt document
to a person or body other than the Tribunal but that Act does not
20 prevent the disclosure of a document to the Tribunal as required
or authorised by this Act.
160. Immunity
(1) To the extent that this section is inconsistent with anything
expressly stated in another provision of this Act, this section
25 does not apply.
(2) 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 her
duties as a Judge.
page 90
State Administrative Tribunal Bill 2003
Other matters Part 8
s. 161
(3) 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.
(4) A party to a proceeding has the same protection and immunity
5 as a party to proceedings in the Supreme Court.
(5) A person appearing as a witness before the Tribunal has the
same protection and immunity as a witness has in proceedings
in the Supreme Court.
(6) A person taking evidence on behalf of the Tribunal under
10 section 71 has, in the performance of his or her functions under
that section, the same protection and immunity as a member of
the Tribunal.
(7) A person has, in the performance of his or her functions as a
mediator under section 54 or a special referee under section 65,
15 the same protection and immunity as a member of the Tribunal.
(8) A legal practitioner appointed under section 64 to assist the
Tribunal has, in providing professional services under the
appointment, the same protection and immunity as a legal
practitioner has in acting in proceedings in the Supreme Court.
20 (9) Otherwise a person appointed under section 64 to assist the
Tribunal has, in the performance of his or her functions under
the appointment, the same protection and immunity as a witness
has in proceedings in the Supreme Court.
161. Protection from liability
25 (1) An action in tort does not lie against a person for anything that
the person has done, in good faith, in the performance or
purported performance of a function under this Act as a
Tribunal member or a member of staff of the Tribunal.
(2) The Crown is also relieved of any liability that it might
30 otherwise have had for a person having done anything as
described in subsection (1).
page 91
State Administrative Tribunal Bill 2003
Part 8 Other matters
s. 162
(3) The protection given by this section applies even though the
thing done as described in subsection (1) may have been
capable of being done whether or not this Act had been enacted.
(4) In this section, a reference to the doing of anything includes a
5 reference to an omission to do anything.
162. Protection for compliance with this Act
(1) No civil or criminal liability attaches to a person for
compliance, or purported compliance, in good faith, with a
requirement of this Act.
10 (2) In particular, if a person produced a document or other material
as required under this Act, no civil liability attaches to the
person for producing the document or material, whether the
liability would arise under a contract or otherwise.
163. Proceedings for defamation not to lie
15 No action or proceeding, civil or criminal, lies against the State,
against a Minister or against a person employed or engaged by
the State, in respect of the printing or publishing of a transcript
of a proceeding before the Tribunal or a decision, or reasons for
a decision, of the Tribunal.
20 164. General principles governing transfer of jurisdiction
(1) This section describes the general principles governing how to
deal with issues arising when a written law confers on the
Tribunal jurisdiction to deal with a matter that --
(a) is of a kind that is substantially similar to a kind of
25 matter that could, before that jurisdiction was conferred,
be dealt with by another tribunal, court, body, or person
(the "former adjudicator"); and
(b) after that jurisdiction is conferred on the Tribunal, no
longer comes within the jurisdiction of the former
30 adjudicator except under this section.
page 92
State Administrative Tribunal Bill 2003
Other matters Part 8
s. 164
(2) On the day on which jurisdiction is conferred on the Tribunal
(the "transfer day") --
(a) any matter of that kind the hearing of which has been
sought but not commenced before the former
5 adjudicator is transferred to the Tribunal;
(b) any matter of that kind that has been partly or fully
heard before, but not determined by, the former
adjudicator is to continue to be dealt with and
determined by the former adjudicator unless it is
10 transferred to the Tribunal under subsection (3);
(c) any matter of that kind that has been determined by the
former adjudicator but --
(i) would have been appealable had the law in force
immediately before the transfer day continued to
15 apply; or
(ii) was the subject of an appeal that was not
determined before the transfer day,
is to continue to be dealt with as if the law in force
immediately before the transfer day had continued in
20 force; and
(d) anything ordered, decided, or otherwise done by a
former adjudicator in respect of a matter of that kind
before the transfer day becomes of the same effect as if,
and enforceable as if, it were ordered, decided, or done
25 by the Tribunal under the provisions authorising the
Tribunal to order, decide, or do corresponding things
after the transfer day.
(3) In the circumstances described in subsection (2)(b) --
(a) the former adjudicator may, if it would be practicable
30 for the matter to continue before the Tribunal, transfer
the matter to the Tribunal; and
page 93
State Administrative Tribunal Bill 2003
Part 8 Other matters
s. 164
(b) the former adjudicator is required to transfer the matter
to the Tribunal if --
(i) the matter cannot be, or is unlikely to be,
determined within the period of 6 months after
5 the transfer day; or
(ii) the President directs that the matter be
transferred.
(4) The law in force before the transfer day continues to apply to
the extent that is necessary to enable a former adjudicator to
10 continue to deal with and determine a matter under this section
and to enable an appeal to be made and dealt with according to
subsection (2)(c) and implemented.
(5) Anything ordered, decided, or otherwise done by a former
adjudicator under this section is to be given effect and enforced,
15 and is subject to appeal, as if it were ordered, decided, or done
by the Tribunal under the provisions authorising the Tribunal to
order, decide, or do corresponding things after the transfer day.
(6) The appeal lies to the Supreme Court unless the former
adjudicator is or includes a judge of the Supreme Court or the
20 District Court.
(7) A former adjudicator is to cause the executive officer to be
sent--
(a) a record of anything referred to in subsection (5) that the
former adjudicator orders, decides, or otherwise does;
25 and
(b) all records relating to a matter that --
(i) the former adjudicator finishes dealing with
under this section; or
(ii) is transferred under this section to the Tribunal.
30 (8) A former adjudicator who has not completed dealing with any
matter under this section within the period of 6 months after the
transfer day is required, within 7 days after that period expires,
page 94
State Administrative Tribunal Bill 2003
Other matters Part 8
s. 165
to give to the President a written report about the matter,
including details of why it has neither been completed nor
referred to the Tribunal.
(9) The regulations may make any provision that is necessary or
5 convenient to apply any of the general principles described in
this section in a case of a particular kind.
165. Regulations
The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
10 necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
166. Tribunal's rules
(1) The Rules Committee may make rules of the Tribunal
prescribing all matters that are required or permitted by this Act
15 to be prescribed by the rules, or are necessary or convenient to
be prescribed by the rules for giving effect to the purposes of
this Act.
(2) Without limiting subsection (1), rules may be made about --
(a) the organisation and management of the business of the
20 Tribunal;
(b) the practice and procedure governing the business of the
Tribunal; and
(c) records of the Tribunal.
167. Rules Committee
25 (1) A committee (the "Rules Committee") is established consisting
of each judicial member and the non-judicial members for the
time being specified under subsection (2) by the President.
(2) The President is to specify from time to time which non-judicial
members are members of the Rules Committee.
page 95
State Administrative Tribunal Bill 2003
Part 8 Other matters
s. 167
(3) The membership of the Rules Committee is to include senior
members and ordinary members and is to be structured so as to
draw on experience in both the original jurisdiction and the
review jurisdiction of the Tribunal.
page 96
State Administrative Tribunal Bill 2003
Minor amendments to other Acts Part 9
s. 168
Part 9 -- Minor amendments to other Acts
168. Constitution Acts Amendment Act 1899 amended
(1) The amendment in this section is to the Constitution Acts
Amendment Act 1899*.
5 [* Reprinted as at 8 June 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 75-76
and Acts Nos. 24 of 2002 and 8 of 2003.]
(2) Schedule V Part 1 Division 1 is amended by inserting before the
10 item relating to the Western Australian Gas Disputes Arbitrator
the following item --
" Member of the State Administrative Tribunal. ".
169. Interpretation Act 1984 amended
(1) The amendments in this section are to the Interpretation
15 Act 1984*.
[* Reprinted as at 1 January 1999.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 186.]
(2) Section 5 is amended by inserting in the appropriate
20 alphabetical position the following definition --
"
"State Administrative Tribunal" means the State
Administrative Tribunal established under the
State Administrative Tribunal Act 2003;
25 ".
(3) Section 51(2) is amended by inserting after "against" --
" , or apply for or otherwise seek a review of, ".
page 97
State Administrative Tribunal Bill 2003
Part 9 Minor amendments to other Acts
s. 170
170. Legal Representation of Infants Act 1977 amended
(1) The amendment in this section is to the Legal Representation of
Infants Act 1977*.
[* Reprinted as at 16 May 2003.]
5 (2) After section 3(1)(b) the following paragraph is inserted --
"
(ba) the State Administrative Tribunal;
".
171. Parliamentary Commissioner Act 1971 amended
10 (1) The amendment in this section is to the Parliamentary
Commissioner Act 1971*.
[* Reprinted as at 16 March 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2002, Table 1, p. 279 and
15 Act No 60 of 1999 and 43 of 2000.]
(2) Schedule 1 is amended by inserting after the item relating to the
Solicitor-General the following item --
"
The State Administrative Tribunal established under the
20 State Administrative Tribunal Act 2003.
".
page 98
State Administrative Tribunal Bill 2003
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
appear ......................................................................................................... 3(1)
applicant ..................................................................................................... 3(1)
application .................................................................................................. 3(1)
certificate .................................................................................................157(1)
chief executive officer ................................................................................. 3(1)
costs of a proceeding ..................................................................................87(1)
decision....................................................................................................... 3(1)
decision-maker............................................................................................ 3(1)
Department ................................................................................................. 3(1)
Deputy President ......................................................................................... 3(1)
document .................................................................................................157(1)
enabling Act................................................................................................ 3(1)
executive officer.......................................................................................... 3(1)
exempt document ........................................................................................ 3(1)
final decision............................................................................................... 3(1)
former adjudicator ....................................................................................164(1)
Full Court.................................................................................................104(4)
investigator ..............................................................................................122(2)
judicial member .......................................................................................... 3(1)
judicial review proceedings ........................................................................19(1)
legal experience........................................................................................... 3(1)
legal practitioner ......................................................................................... 3(1)
legally qualified member ............................................................................. 3(1)
member of staff ........................................................................................... 3(1)
monetary order ............................................................................................ 3(1)
non-judicial member.................................................................................... 3(1)
notifiable person.........................................................................................45(2)
ordinary member ......................................................................................... 3(1)
original jurisdiction ..................................................................................... 3(1)
party.................................................................................................. 3(1), 93(2)
person suspended .....................................................................................120(2)
President ..................................................................................................... 3(1)
presiding member........................................................................................ 3(1)
primary power............................................................................................73(1)
protected matter .......................................................................................... 3(1)
public sector employee ................................................................................ 3(1)
qualified person........................................................................................... 3(1)
question of law...........................................................................................59(1)
page 99
State Administrative Tribunal Bill 2003
Defined Terms
relevant hearing..........................................................................................83(1)
review jurisdiction....................................................................................... 3(1)
reviewable decision ........................................................................... 3(1), 17(3)
Rules Committee............................................................................. 3(1), 167(1)
senior member............................................................................................. 3(1)
sitting member ............................................................................................ 3(1)
transfer day ..............................................................................................164(2)
Tribunal ...................................................................................................... 3(1)
Tribunal member......................................................................................... 3(1)
vexatiously.................................................................................................. 3(1)
vocational regulatory body........................................................................... 3(1)
witness........................................................................................................ 3(1)
page 100
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