Western Australian Consolidated Acts Western Australian Consolidated Acts[Section 7]
The Board, and its proceedings
1 . Chairperson
and Acting Chairperson
(1)
The Minister shall, in writing, appoint a person to be the Chairperson
of the Board.
(2) The Minister, in
appointing a person to be the Chairperson, shall select a person who, in the
opinion of the Minister, has relevant experience in the administration or
effect of the law relating to agricultural practices.
(3) The Minister may,
in writing, appoint a member to act, at any time when in the opinion of the
Minister it may be necessary, in the office of Chairperson of the Board
(either in addition to, or where the need arises by reason of the absence or
any incapacity of that person in substitution for, the Chairperson appointed
under subclause (1)), and when so acting a person has the powers and
duties of Chairperson but if additionally appointed shall so act in accordance
with any directions that may be given by, and be accountable to, the
Chairperson appointed under subclause (1).
(4) The Chairperson
shall preside at any meeting of the Board at which that person is present, but
otherwise the members present may appoint one of their number to preside.
(1) Other than the Chairperson, the
membership of the Board shall consist of 6 persons appointed, in writing, by
the Minister, of whom —
(a) 2
shall be selected from a panel of names submitted to the Minister by farm
lobby organizations, the assistance of which has been sought by the Minister,
as persons who have relevant knowledge of agricultural practices;
(b) 2
shall be persons who, in the opinion of the Minister, have relevant experience
in relation to environmental matters; and
(c) 2
shall be selected by the Minister as persons to represent the interests of the
public, preferably at the local government level.
(2) The Minister may
appoint, in respect of each category of persons appointed under the respective
paragraphs of subclause (1), a person to be the deputy of the members in
that category.
(3) In the absence,
for any reason, of a member from a meeting of the Board the deputy for a
member of that category may attend the meeting and while so attending has all
the functions, and authority, of the member.
(4) Subject to this
Act, a member holds office for such period not exceeding 3 years as is
specified in the instrument of appointment, and is eligible for reappointment.
(5) A member may
resign office, by writing signed by the member and delivered to the Minister.
(6) The Minister may
terminate the appointment of a member —
(a) for
mental or physical disability, inefficiency or for misbehaviour; or
(b) for
other good cause, whether the events or circumstances giving rise to that good
cause occurred before, on, or after the date on which the appointment took
effect.
(7) Where the office
of a member becomes vacant otherwise than by effluxion of time, the Minister
may appoint to the vacant office for the unexpired residue of the term a
person who is eligible for appointment to that office.
3 . Public sector employee may be a member or
mediator
(1) A person
who is an employee within the meaning of the Public Sector
Management Act 1994 may be appointed to be a member, to a committee of
the Board, or as a mediator.
(2) The provisions of
Part 3 of the Public Sector Management Act 1994 do not apply to or
in respect of —
(a) the
appointment of a person to the Board;
(b) the
selection of a person to be a member of a tribunal; or
(c) a
member of a tribunal or a mediator, in that capacity.
(1) The Registrar shall refer any dispute
for mediation if any of the parties so requests, and may do so even if not so
requested.
(2) The Registrar, in
consultation with the Chairperson, is to make arrangements as to who is to be
the mediator to deal with a particular dispute referred for mediation, but the
mediator is not required to be a person who is a member.
(3) The primary
function of the mediator is to attempt to bring the parties to a dispute to a
settlement acceptable to them all.
(4) A mediator may
request a party to the dispute to —
(a)
attend at a meeting with the mediator;
(b)
answer questions put by the mediator;
(c)
produce documents to the mediator, or consent to another person who has
relevant documents producing them to the mediator; or
(d)
attend at any mediation proceedings at which the mediator and any other party
to the dispute are to be present.
(5) During mediation a
person may either appear personally or be assisted or represented in the
proceedings, with leave of the mediator, by any other person not a legal
practitioner.
(6) A
mediator —
(a) may,
in accordance with natural justice but without regard to the rules of
evidence, technicalities, form or precedent, conduct the proceedings at such
times and places as are convenient to the parties;
(b)
shall act according to equity, good conscience and the substantial merits of
the case;
(c) may
seek information in such manner as seems reasonable;
(d) may
give directions as to the conduct of the proceedings;
(e) is
not required to keep a record of the conduct of the proceedings, except in so
far as may be necessary for the preparation of a report upon those
proceedings; and
(f)
shall report the outcome of the proceedings to the Chairperson, and furnish a
copy of the order made to the Registrar.
(7) Where it appears
to the mediator —
(a) that
any dispute is trivial; or
(b) that
it is impracticable in a particular case to attain an acceptable settlement,
the function of the
mediator is to report on the matter to the Chairperson who may, if the
mediator so recommends it, make an order dismissing the reference.
(8) A person who, in
connection with a mediation, makes a statement or representation that the
person knows to be false or misleading in a material particular commits an
offence and is liable to a fine of $2 000.
(9) A person who, in
connection with a mediation, demands or receives any fee or
reward —
(a) for
assisting, otherwise than as a witness or interpreter; or
(b) for
representing,
a party to the
mediation, commits an offence and is liable to a fine of $500.
(1) For the purpose of
any hearing the Chairperson may constitute a tribunal comprising members who
would together be eligible to constitute a quorum of the Board.
(2) Where the parties
to a dispute so agree, the regulations so prescribe, or the Chairperson
determines that in the circumstances it is appropriate, matters in which the
Board has jurisdiction may be dealt with by a tribunal constituted by the
Chairperson, or a member appointed to do so by the Chairperson, sitting alone.
(3) Where the
regulations so prescribe, matters in which the Board has jurisdiction may be
dealt with by a tribunal constituted by the Registrar sitting alone but the
Registrar may, and if the Chairperson so directs the Registrar shall, refer a
particular matter or thing to the Board or to a tribunal as constituted under
subclause (1) or (2).
(4) Nothing in this
clause prevents any matter from being dealt with by the Board, if the Board so
requires.
(5) Where the
Chairperson in relation to a particular dispute appoints a member to a
tribunal for that dispute the Chairperson shall cause the appointment to be
evidenced in writing under the hand of the Registrar.
(6) Subject to
section 12(6) and to clause 12(b), a tribunal shall, at all times
throughout the taking of a proceeding, be constituted by the same person or
persons.
(7) A tribunal
constituted under this Schedule —
(a) has,
in relation to the issues before it, all the powers of the Board, unless in
any particular case the instrument of appointment constituting that tribunal
otherwise provides; and
(b) may
sit and exercise the jurisdiction of the Board notwithstanding that another
such tribunal differently constituted is at the same time sitting and
exercising the jurisdiction of the Board in relation to some other dispute.
(8) If proceedings
before the Board are instituted in relation to 2 or more disputes and the same
or similar issues are involved the proceedings may by order of the Chairperson
be consolidated, if the Chairperson considers that it would not unfairly
prejudice any party and it would be otherwise expedient to conduct the
proceedings together, and thereupon a tribunal may exercise the jurisdiction
conferred in respect of each of those disputes together in the consolidated
proceedings, either on the basis of the evidence given at the original hearing
of each dispute or by way of a new hearing, in such manner as may be specified
in that order.
6 . Procedure for referring a dispute to the Board
(1) The reference of a
dispute to the Board shall be instituted by lodging with the
Registrar —
(a) a
written notice setting out the parties to the dispute and short particulars of
the matters in issue;
(b) the
prescribed fee; and
(c) if
the Registrar so directs, security for costs.
(2) On the lodgement
with the Registrar of a notice of referral, the Registrar shall —
(a)
bring the fact of the lodgement and the notice of referral to the attention of
the Chairperson, and in accordance with the directions of the Chairperson
cause —
(i)
arrangements to be made for a person to act as mediator,
and for mediation proceedings; or
(ii)
a tribunal to be constituted, either initially or
following the unsuccessful outcome of mediation proceedings;
(b) fix
a time and place for any proceedings before a tribunal to be commenced;
(c) give
reasonable notice to the parties to the dispute of the time and place of any
proceedings to be taken; and
(d)
serve, on such other persons likely to be affected as the Registrar may
determine or the Chairperson may direct, a copy of the notice of referral
together with reasonable notice of the time and place fixed for any
proceedings,
and any person on whom
a copy of the notice of referral is served under paragraph (d) is
entitled to be heard at the proceedings and, if that person appears or is
represented at the hearing, the person shall be taken to have elected to be a
party to the proceedings.
7 . Proceedings before the Board or a tribunal
(1) The Board, or a
tribunal, shall —
(a)
conduct its proceedings in accordance with natural justice but without regard
to the rules of evidence, technicalities, form or precedent, at such times and
places as are necessary to enable it to discharge its functions;
(b)
observe the principles of equity and good conscience; and
(c) act
according to the substantial merits of the case.
(2) The Minister may
at any time require the Chairperson to convene a meeting of the Board.
(3) A quorum for a
meeting of the Board comprises —
(a) the
Chairperson; and
(b) 3
other persons, each of whom has been appointed to a different category of
membership under the respective paragraphs of clause 2(1) from each of
the other persons present.
(4) At any proceedings
of the Board or a tribunal —
(a) the
member presiding shall determine any question relating to —
(i)
jurisdiction;
(ii)
evidence;
(iii)
law; or
(iv)
procedure;
(b)
subject to paragraph (a), any decision shall be determined by a majority
vote of the members, but the member presiding shall have a casting vote in
addition to a deliberative vote should the votes be otherwise equal; and
(c) if
the member presiding considers that to be proper, expert or other evidence may
be required or admitted.
(5) For the purpose of
any proceedings under this Act the Board may appoint persons to act
as —
(a)
counsel; or
(b)
expert or technical advisers,
to assist the Board.
(6) A party to
proceedings before the Board or a tribunal may be represented by a legal
practitioner if —
(a) all
parties to the dispute agree; or
(b) the
member presiding —
(i)
is of the opinion that a question of law is likely to be
raised, or argued, at the proceedings; and
(ii)
allows legal practitioners to appear and be heard.
(7) The Board, or a
tribunal, may —
(a) by
summons signed by the Registrar, require —
(i)
any person to attend before it;
(ii)
the production before it of any document;
(b)
inspect any document produced, and retain the document for such reasonable
period as may be required, and make copies of the document or any of the
contents;
(c)
require any person to swear to truly answer all questions relating to a matter
before it that are put to the person (and for that purpose the Registrar or
member presiding may administer any oath or affirmation required); and
(d)
require any person attending before it (whether or not the person has been
summoned to attend) to answer any relevant question.
(8) A person is not
excused from complying with a requirement under subclause (7) to swear,
or to answer any question, on the ground that the answer to the question might
be incriminating or render the person liable to a penalty, but an answer given
by the person is not admissible in evidence against the person in any civil or
criminal proceedings other than proceedings for perjury or for an offence
under this Act arising out of the false or misleading nature of that answer.
(9) The Board or
tribunal —
(a) is
to make a full and thorough investigation, without regard to requirements that
might have been appropriate in legal proceedings;
(b) may
inform itself on any matter in such manner as it thinks fit, and admit any
evidence considered by the person presiding to be relevant notwithstanding
that the evidence would not be admissible in a court of law; and
(c) may
take into account any matter relating to an agricultural practice that is
within the knowledge or experience of a member or which has arisen in or as a
result of other proceedings before the Board or a tribunal,
and may hear evidence
in camera .
(10) The Board or a
tribunal shall afford to a person who is entitled to be heard at any
proceedings relating to a matter referred under this Act a reasonable
opportunity to call or give evidence, to examine or cross-examine witnesses,
and to make submissions.
(11) The member
presiding may direct that any evidence given before the Board or a tribunal,
or the contents of any documents or a report as to the nature of any exhibit
or other thing there produced, shall not be published.
(12) The Board or a
tribunal may make such order as may be appropriate in respect of any
determination made.
(13) If a party to a
dispute who has been required to attend before the Board or a tribunal does
not do so, the absence of the person does not preclude the making of any order
that could be made if the person had attended.
(14) The Board, and
any tribunal, shall cause an accurate record to be kept of its proceedings.
(15) The member
presiding shall, in every case, cause to be forwarded to the Minister a copy
of any determination made, and shall if so requested also cause to be
forwarded notes as to the evidence given, and any member who dissents from a
determination may likewise forward written reasons for so dissenting.
(16) In relation to
matters other than proceedings in respect of a dispute, a meeting or a part of
a meeting of the Board or a committee of the Board may be held by telephone or
a method of communication approved by the Chairperson for the purposes of that
meeting, and any person who takes part in a meeting so held is deemed to have
been present at the meeting notwithstanding that they were not all present in
person at the same place at the time when the meeting was so held.
[Clause 7 amended by No. 24 of 2005
s. 63.]
8 . Offences relating to proceedings of the Board
or a tribunal
(1) A person
who —
(a)
having been served with a summons to attend before the Board or a tribunal,
fails without reasonable excuse (proof of which lies upon that person) to
attend in obedience to the summons;
(b)
having been served with a summons to produce before the Board or a tribunal
any document, fails without reasonable excuse (proof of which lies upon that
person) to comply with the summons;
(c)
misbehaves before the Board or a tribunal, wilfully insults the Board or a
tribunal, or interrupts the proceedings;
(d)
fails without reasonable excuse (proof of which lies upon that person) to
swear, or to answer any question, when required to do so by the Board or a
tribunal; or
(e) in
connection with an issue in dispute, makes a statement or representation that
the person knows to be false or misleading in a material particular,
commits an offence and
is liable to a fine of $2 000.
(2) A person who, not
being a legal practitioner, demands or receives any fee or reward for
representing a party to a dispute before a tribunal commits an offence.
Penalty: $500.
[Clause 8 amended by No. 65 of 2003
s. 13(3); No. 21 of 2008 s. 639(4).]
(1) Each party to a
dispute referred to the Board under this Act bears their own costs, subject to
subclause (2) and to clause 11(3)(a).
(2) An order for the
payment of costs may be imposed where the member presiding is satisfied that
the referral, or the aspect of the dispute to which the order relates, was
vexatious or frivolous.
(3) Upon a
determination in respect of a referral any security for costs lodged under
clause 6(1)(c) shall be refunded, unless an order is imposed
that —
(a) the
whole or part of the moneys be forfeited, where subclause (2) applies; or
(b)
payment of costs be made from those moneys to any other party to the
proceedings, where clause 11(3)(a) applies.
10 . Reasons for determinations
Where, within 14 days after the
Board or a tribunal has given notice of its determination in relation to any
referral, a party to the proceedings requests the Registrar to furnish reasons
in writing for the determination the Registrar shall comply with the request
of that party and set out in writing the reasons for the determination.
(1) An application for leave to withdraw a
referral shall be made in writing and lodged with the Registrar.
(2) A referral duly
made shall not be withdrawn without the leave of the Registrar, after
consultation by the Registrar with the Chairperson and the member presiding at
any tribunal constituted for that dispute.
(3) In granting leave
to withdraw a referral conditions may be imposed —
(a) as
to costs; and
(b)
otherwise,
as the Chairperson or
member presiding may direct the Registrar.
12 . Validity of proceedings, etc.
No act or proceeding of the Board or
a tribunal, or of any person acting pursuant to any direction of the Board, is
invalidated or prejudiced by reason only —
(a) that
as at the time the Board or that tribunal was constituted there was a defect
in the appointment of any member; or
(b) that
after the Board or that tribunal was constituted a vacancy occurred in the
membership of the Board or of that tribunal,
and effect shall be
given to any such act or proceeding as if the Board or that tribunal had been
properly constituted.
In any proceedings
before or in relation to the Board or a tribunal, unless evidence is given to
the contrary, no proof shall be required of —
(a) the
constitution of the Board or that tribunal;
(b) any
resolution or determination of the Board or that tribunal; or
(c) the
appointment of any member of the Board or that tribunal.
In all courts and before all persons
and bodies authorised to receive evidence —
(a) a
document purporting to record a determination made by the Board or a tribunal
and purporting to be certified by the Registrar to be such a record, or a copy
of it, shall be admitted as a true copy of the record of that determination;
and
(b)
judicial notice may be taken of the signature of the Registrar on such a
document, and of the appointment of a particular person to the office of
Registrar.