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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Civil and Administrative Tribunal Bill
2013
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Object of Act 2
4 Definitions 2
5 Notes 3
6 Meaning of "application" to the Tribunal 4
Part 2 Establishment of Tribunal
Division 1 Establishment and membership
7 Establishment of Civil and Administrative Tribunal 5
8 Appointments and other matters to facilitate establishment
of Tribunal 5
9 Membership of Tribunal 6
10 Appointment of term members 7
Civil and Administrative Tribunal Bill 2013
Contents
Page
11 Appointment of occasional members 7
12 Appointment of acting members for a period 8
13 Qualifications of members 9
14 Division Heads 10
15 NSW judicial officers acting as members of Tribunal 10
Division 2 Divisions of Tribunal
16 Divisions of Tribunal 12
17 Division Schedule for a Division of Tribunal 12
18 Assignment of members to Divisions of Tribunal 13
19 Division Lists and List Managers for Divisions of Tribunal 14
Division 3 Functions of members
20 Functions of President 14
21 Functions of other members and Division Heads 15
Division 4 Registrar, Deputy Registrars and staff
22 Appointment of Registrar, Deputy Registrars and other
staff 16
23 Functions of Registrars and Deputy Registrars 16
Division 5 Rule Committee, Tribunal rules and practice
notes
24 Rule Committee of Tribunal 17
25 Meetings of Rule Committee 18
26 Tribunal rules may provide for practice and procedure 18
27 Practice notes 19
Division 6 Jurisdiction and functions of Tribunal
28 General statement of jurisdiction and functions 19
Part 3 Miscellaneous
29 Act to bind Crown 20
30 Seal of Tribunal 20
31 Authentication of documents 20
32 Proof of certain matters not required 20
33 Notices, service and lodgment of documents 20
34 Proceedings for offences 21
35 Regulations 21
36 Amendment of Judicial Officers Act 1986 No 100 22
Schedule 1 Savings, transitional and other provisions 23
Schedule 2 Provisions relating to members 33
Contents page 2
Civil and Administrative Tribunal Bill 2013
Contents
Page
Schedule 3 Administrative and Equal Opportunity
Division 39
Schedule 4 Consumer and Commercial Division 40
Schedule 5 Occupational and Regulatory Division 41
Schedule 6 Guardianship Division 44
Schedule 7 Victims Support Division 45
Contents page 3
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2013
New South Wales
Civil and Administrative Tribunal Bill
2013
Act No , 2013
An Act to establish the Civil and Administrative Tribunal of New South Wales and
to provide for its membership and functions.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Civil and Administrative Tribunal Bill 2013
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Civil and Administrative Tribunal Act 2013.
2 Commencement
This Act commences on the date of assent to this Act.
3 Object of Act (cf ADT Act, s 3; CTTT Act, s 3)
The object of this Act is to establish an independent Civil and
Administrative Tribunal of New South Wales to replace various
existing tribunals.
4 Definitions (cf ADT Act, s 4)
(1) In this Act:
application to the Tribunal--see section 6.
Deputy President means a Deputy President of the Tribunal.
Deputy Registrar means a Deputy Registrar of the Tribunal.
Division of the Tribunal means a Division of the Tribunal specified in
section 16 (1).
Division Head of a Division of the Tribunal means the member who is
appointed by or under this Act as the Division Head of that Division.
Division List means a list established by or under this Act for the
management of a class of proceedings allocated to a Division of the
Tribunal.
Division member, in relation to a Division of the Tribunal, means a
member who is assigned by or under this Act to that Division.
Division Schedule for a Division of the Tribunal--see section 17.
enabling legislation means legislation (other than this Act or any
statutory rules made under this Act) that:
(a) provides for applications or appeals to be made to the Tribunal
with respect to a specified matter or class of matters, or
(b) otherwise enables the Tribunal to exercise functions with respect
to a specified matter or class of matters.
establishment day--see section 7.
function includes a power, authority or duty, and exercise a function
includes perform a duty.
general member means a general member of the Tribunal.
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Civil and Administrative Tribunal Bill 2013 Clause 5
Preliminary Part 1
legislation means an Act or a statutory rule.
List Manager for a Division of the Tribunal--see section 19.
member means a member of the Tribunal.
non-presidential member--see section 9 (3).
NSW judicial officer means any of the following:
(a) a Magistrate,
(b) a Judge of the District Court,
(c) a judicial member of the Industrial Relations Commission,
(d) a Judge of the Land and Environment Court,
(e) a Judge of the Supreme Court.
occasional member--see section 9 (5).
President means the President of the Tribunal.
presidential member--see section 9 (2).
principal member means a principal member of the Tribunal.
Registrar means the Registrar of the Tribunal.
Rule Committee means the Rule Committee of the Tribunal.
senior member means a senior member of the Tribunal.
term member--see section 9 (4).
the Tribunal or NCAT means the Civil and Administrative Tribunal of
New South Wales established by this Act.
Tribunal rules means the rules of the Tribunal made by the Rule
Committee.
(2) A reference in this Act (however expressed) to the exercise by the
Tribunal of its functions in relation to other legislation includes a
reference both to its functions under the legislation and its functions
under this Act in relation to the legislation.
(3) A reference (however expressed) in this Act to a decision made under
other legislation is taken to include a reference to any decision made in
the exercise of functions identified by the legislation.
5 Notes
Notes included in this Act do not form part of this Act.
Note. For the purposes of comparison, a number of provisions of this Act
contain bracketed notes in headings drawing attention ("cf") to equivalent or
comparable (though not necessarily identical) provisions of other Acts (as in
force immediately before the enactment of this Act). Abbreviations in these
notes include the following:
(a) ADT Act is a reference to the Administrative Decisions Tribunal Act
1997,
Page 3
Clause 6 Civil and Administrative Tribunal Bill 2013
Part 1 Preliminary
(b) CTTT Act is a reference to the Consumer, Trader and Tenancy Tribunal
Act 2001.
6 Meaning of "application" to the Tribunal (cf ADT Act, s 142)
(1) An application to the Tribunal includes a complaint, referral or other
mechanism by means of which enabling legislation provides for a
matter to be brought to the attention of the Tribunal for a decision.
(2) If enabling legislation provides that an application may be made to the
Tribunal, but does so by reference to some word or expression other
than "application" or some other part of speech or grammatical forms of
that word or expression:
(a) the Tribunal rules may refer to such applications by reference to
the word or expression used in the legislation (or some other part
of speech or grammatical forms of that word or expression), and
(b) the regulations may refer to such applications by reference to the
word or expression used in the legislation (or some other part of
speech or grammatical forms of that word or expression), and
(c) any notice or other document issued, lodged, served or given
under this Act in relation to such applications may refer to the
applications by reference to the word or expression used in the
legislation (or some other part of speech or grammatical forms of
that word or expression).
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Civil and Administrative Tribunal Bill 2013 Clause 7
Establishment of Tribunal Part 2
Part 2 Establishment of Tribunal
Division 1 Establishment and membership
7 Establishment of Civil and Administrative Tribunal (cf ADT Act, s 11)
(1) The Civil and Administrative Tribunal of New South Wales (which may
also be called NCAT) is established by this Act on the establishment
day.
(2) The establishment day is:
(a) 1 January 2014, or
(b) such later day as may be fixed as the establishment day by a
proclamation made under this section.
(3) The Governor may, by proclamation published on the NSW legislation
website, fix a day that is later than 1 January 2014 as the establishment
day for the purposes of this section.
(4) The Governor may, by further proclamation published on the NSW
legislation website, revoke a previous proclamation fixing a day as the
establishment day and fix a different day that is later than 1 January
2014 as the establishment day.
(5) A proclamation under this section has effect only if published before the
establishment day applying for the time being.
8 Appointments and other matters to facilitate establishment of Tribunal
(1) A person may be appointed to any office or other position under this Act
before the establishment day.
(2) Without limiting subsection (1), the following appointments may be
made before the establishment day:
(a) appointment as the President or as any other kind of member,
(b) appointment as a Division Head of a Division of the Tribunal that
will be created on the establishment of the Tribunal,
(c) appointment as a List Manager of a Division of the Tribunal that
will be created on the establishment of the Tribunal,
(d) appointment as a member of the Rule Committee,
(e) appointment as the Registrar, a Deputy Registrar or other
member of staff of the Tribunal.
(3) A member appointed before the establishment day may also be assigned
by or under this Act to a Division of the Tribunal that will be created on
the establishment of the Tribunal.
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Clause 9 Civil and Administrative Tribunal Bill 2013
Part 2 Establishment of Tribunal
(4) Without limiting subsections (1) and (2), the Rule Committee may be
constituted before the establishment day and may before that day:
(a) meet and transact business as if the Tribunal (and its Divisions)
had been established, and
(b) without limiting paragraph (a), make Tribunal rules that will
come into force on or after the establishment day.
(5) Any appointment or assignment made before the establishment day has
effect on and from the day specified in the instrument of appointment or
assignment as the date of appointment or assignment as if the Tribunal
(including its Divisions) had been established.
(6) Despite clause 5 of Schedule 2, a member of an existing tribunal (within
the meaning of Part 2 of Schedule 1) who is appointed as a member of
the Tribunal before the establishment day is not entitled to be paid
remuneration as a member of the Tribunal while he or she continues to
receive remuneration as a member of the existing tribunal.
9 Membership of Tribunal (cf ADT Act, s 12)
(1) The Tribunal is to consist of the following members:
(a) the President,
(b) Deputy Presidents,
(c) principal members,
(d) senior members,
(e) general members.
(2) The President and the Deputy Presidents are referred to in this Act as
presidential members.
(3) The principal members, senior members and general members are
referred to in this Act as non-presidential members.
(4) A member appointed by or under this Act for a term is referred to in this
Act as a term member.
(5) A member appointed by or under this Act to be a member for the
purposes of specified proceedings is referred to in this Act as an
occasional member.
(6) The President is to be appointed as a term member.
(7) Schedule 2 sets out additional provisions with respect to members.
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Civil and Administrative Tribunal Bill 2013 Clause 10
Establishment of Tribunal Part 2
10 Appointment of term members (cf ADT Act, s 13)
(1) A person may be appointed as a term member if the person is qualified
to be appointed as a member of the kind concerned.
Note. Section 13 makes general provision with respect to qualifications for
appointment. A Division Schedule for a Division of the Tribunal may, in some
cases, make special provision for the assignment of members to that Division
based on particular skills, expertise or qualifications.
(2) A presidential member appointed as a term member is to be appointed
by the Governor by commission under the public seal of the State.
Note. The President must be appointed as a term member. See section 9 (6).
(3) A non-presidential member appointed as a term member is to be
appointed by the Minister by written instrument.
(4) The instrument of appointment of a term member is to specify:
(a) whether the member has been appointed as the President, a
Deputy President, principal member, senior member or general
member, and
(b) the term for which the member has been appointed.
(5) A term member may be appointed on a full-time basis or a part-time
basis.
(6) However, the President is taken to be appointed on a full-time basis.
11 Appointment of occasional members
(1) The President may, by written instrument, appoint a person to be an
occasional member in relation to particular proceedings before the
Tribunal if:
(a) the person is qualified to be appointed as a member of the kind
concerned, and
(b) the President is satisfied that the appointment of the person as a
member is necessary to enable the Tribunal to be properly
constituted to exercise its functions in the proceedings.
Note. Section 13 makes general provision with respect to qualifications for
appointment. A Division Schedule for a Division of the Tribunal may, in some
cases, make special provision for the assignment of members to that Division
based on particular skills, expertise or qualifications.
(2) Without limiting clause 12 of Schedule 2, the President may delegate
the function of appointing occasional members to sit as Division
members for a Division of the Tribunal to the Division Head of the
Division or a List Manager of a Division of the Tribunal.
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Clause 12 Civil and Administrative Tribunal Bill 2013
Part 2 Establishment of Tribunal
(3) The instrument of appointment of an occasional member is to specify:
(a) whether the member has been appointed as a Deputy President,
principal member, senior member or general member, and
(b) the proceedings in relation to which the member has been
appointed as an occasional member.
(4) An occasional member who is appointed to be a member in relation to
proceedings that are allocated to a Division of the Tribunal is taken to
be assigned as a Division member of that Division.
(5) A person who is appointed as an occasional member holds office as
such until the proceedings in relation to which the member has been
appointed as an occasional member have been finally determined,
unless the person sooner vacates office.
(6) The proceedings in relation to which an occasional member has been
appointed as an occasional member are not finally determined for the
purposes of subsection (5) until:
(a) the proceedings are withdrawn by a party before the substantial
merits of the proceedings are considered by the Tribunal, or
(b) the proceedings are dismissed by the Tribunal (as constituted by
or with the member) before the substantial merits of the
proceedings are considered by the Tribunal (including, where
required, the giving of reasons for the dismissal), or
(c) the Tribunal (as constituted by or with the member) has
completed all the processes necessary to decide the substantial
merits of the proceedings (including, where required, the giving
of reasons for the decision),
whichever occurs first.
12 Appointment of acting members for a period (cf ADT Act, s 15)
(1) The Governor may, by commission under the public seal of the State,
appoint as an Acting Deputy President a person qualified for
appointment as a Deputy President if satisfied that the appointment is
necessary to enable the Tribunal to exercise its functions effectively
during the period of the appointment.
(2) The Minister may, by written instrument, appoint as an acting principal
member, acting senior member or acting general member a person
qualified for appointment as a principal member, senior member or
general member (as the case requires) if satisfied that the appointment
is necessary to enable the Tribunal to exercise its functions effectively
during the period of the appointment.
(3) The person's appointment is for the period (not exceeding 12 months)
specified in the instrument of appointment.
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Civil and Administrative Tribunal Bill 2013 Clause 13
Establishment of Tribunal Part 2
(4) An Acting Deputy President, acting principal member, acting senior
member or acting general member has the functions of, and is taken to
be, a Deputy President, principal member, senior member or general
member (as the case requires) subject to any conditions or limitations
specified in the instrument of appointment.
13 Qualifications of members
(1) The President
A person is qualified to be appointed as the President only if the person
is a Judge of the Supreme Court.
(2) However, the Minister may not recommend the appointment of a person
as the President unless the Minister has consulted with the Chief Justice
of the Supreme Court about the appointment.
(3) Deputy Presidents
A person is qualified to be appointed as a Deputy President only if the
person is:
(a) an Australian lawyer of at least 7 years' standing, or
(b) a person who holds, or has held, a judicial office of this State or
of the Commonwealth, another State or Territory.
(4) Principal members
A person is qualified to be appointed as a principal member only if the
person:
(a) is an Australian lawyer of at least 7 years' standing, or
(b) has, in the opinion of the person making the appointment, special
knowledge, skill or expertise in relation to any one or more
classes of matters in respect of which the Tribunal has
jurisdiction.
(5) Senior members
A person is qualified to be appointed as a senior member only if the
person:
(a) is an Australian lawyer of at least 7 years' standing, or
(b) has, in the opinion of the person making the appointment, special
knowledge, skill or expertise in relation to any one or more
classes of matters in respect of which the Tribunal has
jurisdiction.
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Clause 14 Civil and Administrative Tribunal Bill 2013
Part 2 Establishment of Tribunal
(6) General members
A person is qualified to be appointed as a general member only if, in the
opinion of the person making the appointment, the person:
(a) has special knowledge, skill or expertise in relation to any class
of matters in respect of which the Tribunal has jurisdiction, or
(b) is capable of representing the public (or a sector of the public), or
a particular organisation, body or group of persons (or class of
organisations, bodies or groups of persons), in relation to any one
or more classes of matters in respect of which the Tribunal has
jurisdiction.
Note. A Division Schedule for a Division of the Tribunal may, in some cases,
make special provision for the assignment of members to that Division based
on particular skills, expertise or qualifications.
14 Division Heads (cf ADT Act, s 16)
(1) The President or a Deputy President who is a term member may be
appointed by the Governor as the Division Head of one or more
Divisions of the Tribunal:
(a) in the instrument of appointment of the President or Deputy
President, or
(b) by subsequent instrument.
Note. A Division Schedule for a Division of the Tribunal may, in some cases,
make special provision for the qualifications and procedure for the appointment
of the Division Head for that Division.
(2) A Division Head ceases to hold office as a Division Head if he or she:
(a) is removed from office as a Division Head by the Governor, or
(b) resigns the office by written instrument addressed to the Minister,
or
(c) ceases to hold office as the President or a Deputy President.
(3) However, a person does not cease to hold office as the President or a
Deputy President simply because the person has been removed, or has
resigned, from office as a Division Head under subsection (2).
15 NSW judicial officers acting as members of Tribunal (cf ADT Act, s 14)
(1) Classes of NSW judicial officers who may act as members may be
prescribed
Any NSW judicial officer who belongs to a class of NSW judicial
officer prescribed by the regulations for the purposes of this section is
taken to have been duly appointed to act as a member of the Tribunal in
relation to such matters within the jurisdiction of the Tribunal as are
prescribed by the regulations.
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Civil and Administrative Tribunal Bill 2013 Clause 15
Establishment of Tribunal Part 2
(2) President may appoint NSW judicial officer to act as member
Without limiting subsection (1), the President may appoint any NSW
judicial officer to act as a member of the Tribunal in relation to
particular proceedings before the Tribunal if:
(a) the President is satisfied that the appointment of the judicial
officer to act as a member is necessary to enable the Tribunal to
exercise its functions effectively in the proceedings, and
(b) the relevant chief judicial officer agrees to the NSW judicial
officer's appointment.
(3) Effect of appointment
Any person who is appointed to act as a member by or under this
section:
(a) holds office as a Deputy President, principal member or senior
member as specified in the regulations (in the case of an
appointment under subsection (1)) or the instrument of
appointment (in the case of an appointment under subsection (2)),
and
(b) has and may exercise all the functions of a member while acting
as a member, and
(c) may continue to exercise his or her functions as a holder of a
judicial office.
(4) Former acting member may complete determination of proceedings
A NSW judicial officer who has acted as a member may attend the
sittings of the Tribunal for the purpose of giving reasons for a decision
in, or otherwise completing, any proceedings that have been heard by
the Tribunal (or were otherwise the subject of deliberations by the
Tribunal) while the officer acted as a member, even if the person has
ceased to act as a member.
(5) Definitions
In this section:
NSW judicial officer includes a retired NSW judicial officer.
relevant chief judicial officer means:
(a) in relation to the appointment of a Magistrate to act as a
member--the Chief Magistrate of the Local Court, or
(b) in relation to the appointment of a Judge of the District Court to
act as a member--the Chief Judge of the Court, or
(c) in relation to the appointment of a judicial member of the
Industrial Relations Commission to act as a member--the
President of the Commission, or
Page 11
Clause 16 Civil and Administrative Tribunal Bill 2013
Part 2 Establishment of Tribunal
(d) in relation to the appointment of a Judge of the Land and
Environment Court to act as a member--the Chief Judge of the
Court, or
(e) in relation to the appointment of a Judge of the Supreme Court to
act as a member--the Chief Justice of the Court.
Division 2 Divisions of Tribunal
16 Divisions of Tribunal (cf ADT Act, ss 19 and 20)
(1) On the establishment of the Tribunal, there are to be the following
Divisions of the Tribunal:
(a) the Administrative and Equal Opportunity Division,
(b) the Consumer and Commercial Division,
(c) the Occupational and Regulatory Division,
(d) the Guardianship Division,
(e) the Victims Support Division.
(2) The functions of the Tribunal in relation to enabling legislation that are
allocated to a Division of the Tribunal are to be exercised in that
Division.
Note. Section 4 (2) provides that a reference in this Act (however expressed) to
the exercise by the Tribunal of its functions in relation to other legislation
includes a reference both to its functions under the legislation and its functions
under this Act in relation to the legislation.
(3) The functions of the Tribunal in relation to enabling legislation that are
allocated to a Division of the Tribunal are the functions in relation to
such legislation that are allocated to the Division by the Division
Schedule for the Division.
(4) A Division of the Tribunal is composed of such members as are
assigned to it by or under this Act.
17 Division Schedule for a Division of Tribunal
(1) The Division Schedule for a Division of the Tribunal is the Schedule to
this Act that provides for the composition and functions of that
Division.
(2) Without limiting subsection (1), a Division Schedule for a Division of
the Tribunal may include provisions about the following matters:
(a) the qualifications and procedure for the appointment of a
Division Head of the Division,
(b) the qualifications and procedure for the assignment of other
Division members,
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Civil and Administrative Tribunal Bill 2013 Clause 18
Establishment of Tribunal Part 2
(c) the allocation to the Division of functions of the Tribunal in
relation to enabling legislation,
(d) the use of Division Lists in the Division and the qualifications
and procedure for the appointment of, and the functions of, List
Managers for the Division,
(e) special requirements for the constitution of the Tribunal when
exercising functions of the Tribunal allocated to the Division,
(f) special requirements in relation to the powers of, and the practice
and procedure to be followed by, the Tribunal in relation to
proceedings in the Division,
(g) special requirements regarding appeals from decisions made by
the Tribunal in the Division.
(3) The provisions of a Division Schedule for a Division of the Tribunal
prevail to the extent of any inconsistency between those provisions and
any other provisions of this Act.
18 Assignment of members to Divisions of Tribunal (cf ADT Act, s 21)
(1) The President is assigned to each Division of the Tribunal.
(2) A Division Head is assigned to the Division of the Tribunal in respect
of which he or she is appointed as the Division Head.
(3) Subject to this Act, the President:
(a) is to assign each member (other than the President or a Division
Head) to one or more Divisions of the Tribunal, and
(b) may assign a member who is a Division Head to one or more
Divisions of the Tribunal in respect of which the member is not
the Division Head,
and may vary any such assignment at any time.
(4) An assignment of a member to a Division of the Tribunal:
(a) is to be made in accordance with any applicable provisions of the
Division Schedule for the Division or of this Act or any enabling
legislation, and
(b) is subject to any limitations specified in the member's instrument
of appointment or assignment.
(5) An assignment of a member to a Division of the Tribunal may be limited
to participating in proceedings that are entered in one or more Division
Lists of the Division.
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Clause 19 Civil and Administrative Tribunal Bill 2013
Part 2 Establishment of Tribunal
19 Division Lists and List Managers for Divisions of Tribunal
(1) The President, or the Division Head of a Division of the Tribunal
(subject to any direction of the President), may establish one or more
Division Lists for a Division of the Tribunal in which proceedings
allocated to the Division are to be entered for the purpose of managing
those proceedings.
(2) The President, or the Division Head of a Division of the Tribunal
(subject to any direction of the President), may, by written instrument,
designate a Division member to be a List Manager for a Division List of
the Division.
Note. A Division Schedule for a Division of the Tribunal may, in some cases,
provide for the use of Division Lists in the Division and for the qualifications and
procedure for the designation of, and the functions of, List Managers for the
Division.
(3) A List Manager for a Division of the Tribunal has (subject to any
direction from the President or the Division Head of the Division) the
function of managing such Division Lists of the Division as may be
specified:
(a) in the instrument designating the member to be a List Manager,
or
(b) by the Division Schedule for the Division or by the Tribunal
rules.
Note. Clause 12 of Schedule 2 also enables the Division Head of a Division of
the Tribunal to delegate functions of the Division Head to a List Manager of the
Division.
(4) An instrument designating a member to be a List Manager for a
Division of the Tribunal may specify a title for the member to use while
exercising the functions of a List Manager.
(5) The President, or the Division Head of a Division of the Tribunal
(subject to any direction of the President), may at any time, by written
instrument, revoke a member's designation as a List Manager for a
Division of the Tribunal.
Division 3 Functions of members
20 Functions of President (cf ADT Act, s 25)
(1) The functions of the President are:
(a) to direct the business of the Tribunal (including determining the
places and times for sittings of the Tribunal), and
(b) to facilitate the adoption of good administrative practices for the
conduct of the business of the Tribunal, and
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Civil and Administrative Tribunal Bill 2013 Clause 21
Establishment of Tribunal Part 2
(c) to give directions about, and participate in the development of,
the practice and procedure to be followed by the Tribunal, and
(d) to manage members, including by:
(i) developing codes of conduct for members, and
(ii) ensuring that members are adequately and appropriately
trained to enable them to exercise their functions
effectively and efficiently, and
(iii) undertaking performance management for members
(whether by means of agreements with members, reviews
or otherwise), and
(iv) developing selection criteria for the appointment of
members and, if required by the Minister, overseeing the
selection process for members, and
(e) to advise the Minister about the appointment, re-appointment and
removal of members, and
(f) to exercise such other functions as may be conferred or imposed
on the President by or under this Act or any other legislation.
(2) The President may also enter into agreements with Ministers, public
officials and other persons or bodies with regulatory functions in
relation to any class of matters over which the Tribunal has jurisdiction
about the provision, allocation or use of funding in connection with the
exercise of the jurisdiction concerned.
(3) Without limiting subsections (1) and (2), the President has the following
functions if appointed before the establishment day:
(a) to assist in the development of the Tribunal rules for the Tribunal
to use on its establishment,
(b) to issue practice notes for the Tribunal to use on its establishment,
(c) to assign functions to other members appointed before the
establishment day with respect to the establishment of the
Tribunal,
(d) to assign functions to any Registrar, Deputy Registrar or other
member of staff appointed before the establishment day,
(e) to exercise such other functions as are necessary or convenient to
facilitate the establishment of the Tribunal.
21 Functions of other members and Division Heads (cf CTTT Act, s 14)
(1) A member has such functions as may be conferred or imposed on the
member by or under this Act or any other legislation.
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Clause 22 Civil and Administrative Tribunal Bill 2013
Part 2 Establishment of Tribunal
(2) Each member must comply with any procedural directions given by the
President and the Division Head of the Division of the Tribunal to
which the member is assigned.
(3) The functions of a Division Head of a Division of the Tribunal are:
(a) to direct (subject to this Act, the regulations, the Tribunal rules
and any direction of the President) the business of the Tribunal in
that Division, and
(b) to exercise such other functions as may be conferred or imposed
on the Division Head by or under this Act or any other legislation.
(4) Without limiting subsections (1)-(3), a member (other than the
President) or Division Head for a Division of the Tribunal appointed
before the establishment day has and may exercise such functions with
respect to the establishment of the Tribunal as may be assigned to the
member under section 20 (3).
Division 4 Registrar, Deputy Registrars and staff
22 Appointment of Registrar, Deputy Registrars and other staff (cf ADT Act,
s 27; CTTT Act, s 19)
(1) A Registrar, Deputy Registrars and such other staff as may be necessary
for the purposes of this Act are to be employed under Chapter 1A of the
Public Sector Employment and Management Act 2002.
(2) The President may enter into arrangements with any government
agency or other body or person (whether in the public or private sector)
for the provision of assistance to the Tribunal in connection with the
exercise of its functions.
23 Functions of Registrars and Deputy Registrars (cf ADT Act, s 28; CTTT Act,
s 20)
(1) The Registrar has the following functions:
(a) to assist the President in managing the business and the affairs of
the Tribunal,
(b) such administrative and other functions as may be conferred or
imposed on the Registrar by or under this Act or any other
legislation or law.
(2) A Deputy Registrar may exercise the functions of the Registrar:
(a) as directed by the Registrar or the President, and
(b) during the absence of, or a vacancy in the office of, the Registrar.
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Civil and Administrative Tribunal Bill 2013 Clause 24
Establishment of Tribunal Part 2
(3) Anything done or omitted to be done by a Deputy Registrar in
exercising a function of the Registrar has effect as if it had been done or
omitted to be done by the Registrar.
(4) The regulations and Tribunal rules may make provision for or with
respect to the functions of the Registrar or a Deputy Registrar.
(5) Without limiting subsections (1)-(4), a Registrar or Deputy Registrar
appointed before the establishment day has and may exercise such
functions with respect to the establishment of the Tribunal as may be
assigned to the Registrar or Deputy Registrar under section 20 (3).
Division 5 Rule Committee, Tribunal rules and practice notes
24 Rule Committee of Tribunal (cf ADT Act, ss 92-95)
(1) There is to be a Rule Committee of the Tribunal.
(2) The functions of the Rule Committee are:
(a) to make the Tribunal rules, and
(b) to ensure that the Tribunal rules it makes are as flexible and
informal as possible.
(3) The Rule Committee is to be composed of the following:
(a) the President,
(b) each Division Head,
(c) such other members of the Tribunal as may be appointed by the
Minister on the nomination of the President,
(d) such other persons as may be appointed by the Minister.
(4) An appointed member of the Rule Committee is to hold office for the
period specified in the member's instrument of appointment and is
eligible (if otherwise qualified) for re-appointment.
(5) An appointed member of the Rule Committee ceases to hold office if:
(a) the member is removed from office by the Minister, or
(b) the member resigns the office by written instrument addressed to
the Minister, or
(c) the member completes a term of office and is not re-appointed.
(6) If the office of an appointed member becomes vacant, a person may,
subject to this Act, be appointed to fill the vacancy.
(7) The President is to be the Chairperson of the Rule Committee.
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Clause 25 Civil and Administrative Tribunal Bill 2013
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(8) The President is to appoint, by written instrument, one of the other
members of the Rule Committee who is a Deputy President as Deputy
Chairperson of the Rule Committee.
25 Meetings of Rule Committee (cf ADT Act, s 96)
(1) Subject to this Division, the Rule Committee is to regulate its own
procedure.
(2) The Chairperson of the Rule Committee or, in the absence of the
Chairperson, the Deputy Chairperson of the Committee is to preside at
a meeting of the Committee.
(3) In the absence from a meeting of the Rule Committee of both the
Chairperson and Deputy Chairperson, another member of the
Committee who is a Deputy President is to be chosen by the members
present to preside at the meeting.
(4) The quorum for a meeting of the Rule Committee is a majority of the
number of the members for the time being. Any duly convened meeting
of the Rule Committee at which a quorum is present is competent to
transact any business of the Rule Committee and has and may exercise
all the functions of the Rule Committee.
(5) A decision supported by a majority of the votes cast at a meeting of the
Rule Committee at which a quorum is present is the decision of the
Committee.
(6) The person presiding at a meeting of the Rule Committee has a
deliberative vote and, in the event of an equality of votes, also has a
casting vote.
(7) The President is to call the first meeting of the Rule Committee in such
manner as the President thinks fit and (subject to any decision of the
Committee under subsection (1)) may call such other meetings of the
Committee as the President thinks necessary.
(8) The Rule Committee may, if it thinks fit, transact any of its business by
the circulation of papers among all the members of the Committee for
the time being, and a resolution in writing approved in writing by a
majority of those members is taken to be a decision of the Committee.
26 Tribunal rules may provide for practice and procedure (cf ADT Act, ss 90
and 91)
(1) The Rule Committee may make rules of the Tribunal (referred to in this
Act as the Tribunal rules), not inconsistent with this Act, for or with
respect to any matter that by this or any other Act is required or
permitted to be prescribed by the Tribunal rules or that is necessary or
convenient to be prescribed in relation to the practice and procedure of
the Tribunal under this Act or any other legislation.
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Establishment of Tribunal Part 2
(2) Without affecting the generality of subsection (1), Tribunal rules may
be made for or with respect to any of the following:
(a) the commencement of proceedings in the Tribunal,
(b) the practice and procedure to be followed in, or for the purposes
of, proceedings before the Tribunal (including proceedings in
relation to appeals),
(c) the means for, and the practice and procedure to be followed in,
the enforcement and execution of decisions of the Tribunal,
(d) the practice and procedure to be followed in the mediation or
neutral evaluation of any matter,
(e) the functions of the Registrar or other officers under this Act,
including functions in relation to proceedings instituted before
the Tribunal,
(f) the determination of the seniority of members in connection with
the exercise of the functions of the Tribunal in proceedings.
(3) Without limiting the generality of section 42 of the Interpretation Act
1987, the Tribunal rules may also prescribe different rules for:
(a) each of the Divisions of the Tribunal, and
(b) different classes of matters.
Note. Section 42 of the Interpretation Act 1987 provides for the matters for
which statutory rules may generally make provision.
27 Practice notes (cf ADT Act, s 91A)
(1) The President may issue practice notes for the Tribunal, not inconsistent
with this Act or the Tribunal rules, in relation to any matter with respect
to which Tribunal rules may be made.
(2) A practice note must be published in the Gazette.
(3) Sections 40 and 41 of the Interpretation Act 1987 apply to a practice
note in the same way as they apply to a statutory rule.
Division 6 Jurisdiction and functions of Tribunal
28 General statement of jurisdiction and functions (cf ADT Act, s 36; CTTT Act,
s 21)
The Tribunal has such jurisdiction and functions as may be conferred or
imposed on it by or under this Act or any other legislation.
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Clause 29 Civil and Administrative Tribunal Bill 2013
Part 3 Miscellaneous
Part 3 Miscellaneous
29 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as
the legislative power of the Parliament of New South Wales permits, the
Crown in all its other capacities.
30 Seal of Tribunal (cf ADT Act, s 133; CTTT Act, s 75)
The Tribunal is to a have a seal and that seal is to be judicially noticed.
31 Authentication of documents (cf ADT Act, ss 134 and 135; CTTT Act, s 76)
(1) Every document requiring authentication by the Tribunal is sufficiently
authenticated without the seal of the Tribunal if it is:
(a) signed by any member or the Registrar, or
(b) authenticated in a manner prescribed by the regulations.
(2) Judicial notice is to be taken of the signature of the member concerned
or the Registrar when appearing on a document issued by the Tribunal.
32 Proof of certain matters not required (cf ADT Act, s 136; CTTT Act, s 77)
In any legal proceedings, no proof is required (unless evidence to the
contrary is given) of:
(a) the constitution of the Tribunal, or
(b) any decision of the Tribunal, or
(c) the appointment of, or the holding of office by, a member.
33 Notices, service and lodgment of documents (cf ADT Act, s 138; CTTT Act,
s 78)
(1) For the purposes of this Act, a notice or document may be given to a
person (and a document may be served on a person):
(a) in the case of a natural person--by:
(i) delivering it to the person personally, or
(ii) leaving it at, or by sending it by post to, the residential or
business address, or other address for service, of the person
that was last known to the person giving or serving the
document, or
(b) in the case of a body corporate--by leaving it at, or by sending it
by post to, the head office, a registered office or a principal office
of the body corporate, or
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Civil and Administrative Tribunal Bill 2013 Clause 34
Miscellaneous Part 3
(c) in the case of a Government Department--by leaving it at, or by
sending it by post to, any office of that Department addressed to
the head of the Government Department.
(2) A notice or other document may be served on the Tribunal by leaving it
at, or by sending it by post to (or a document that is required or
permitted to be lodged with the Tribunal may be lodged at):
(a) the office of the Registrar, or
(b) if the Registrar has more than one office, any one of those offices.
(3) Nothing in this section affects the operation of any provision of any law
or the rules of a court authorising a document to be served in a manner
not provided for by this section.
(4) The regulations may:
(a) provide for additional means of serving, giving or lodging any
notice or document, and
(b) provide that a notice or document of a class specified by the
regulations be served, given or lodged only in the prescribed
manner.
34 Proceedings for offences (cf ADT Act, s 143; CTTT Act, s 82)
(1) Proceedings for an offence against this Act or the regulations are to be
dealt with summarily before the Local Court.
(2) Proceedings for an offence against this Act or the regulations may be
brought within the period of 12 months of the date on which the offence
is alleged to have been committed.
35 Regulations (cf ADT Act, s 145; CTTT Act, s 86)
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
(2) Without limiting the generality of subsection (1), the regulations may
make provision for or with respect to any of the following matters:
(a) the fees payable in respect of proceedings in the Tribunal,
including fees for the following:
(i) applications or appeals made to the Tribunal,
(ii) the filing or lodgment of any document in the Tribunal,
(iii) the provision of transcripts of proceedings,
(iv) the issue of summonses or any other document out of the
Tribunal,
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Clause 36 Civil and Administrative Tribunal Bill 2013
Part 3 Miscellaneous
(b) the fees payable in relation to proceedings in the Tribunal
referred to mediation or neutral evaluation,
(c) the fees payable for administrative services provided by the
Registrar, a Deputy Registrar or any other officer of the Tribunal,
whether in connection with the administration of this Act or
otherwise,
(d) the waiver, postponement and refund of fees and exemptions
from fees,
(e) costs in proceedings before the Tribunal.
(3) The Minister may not, without the concurrence of the Minister for
Health, recommend the making of a regulation that prescribes fees of
the kind referred to in subsection (2) (a) for the exercise of the
Tribunal's functions in proceedings that are entered in the Health
Practitioner Division List of the Occupational and Regulatory Division
of the Tribunal.
(4) The regulations may create offences punishable by a penalty not
exceeding 10 penalty units.
36 Amendment of Judicial Officers Act 1986 No 100
(1) Section 3 Definitions
Insert at the end of paragraph (g) of the definition of judicial officer in
section 3 (1):
, or
(h) the President of the Civil and Administrative
Tribunal.
(2) Section 43 Appropriate authorities to suspend etc
Omit "or the President of the Administrative Decisions Tribunal".
Insert instead ", the President of the Administrative Decisions Tribunal
or the President of the Civil and Administrative Tribunal".
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Savings, transitional and other provisions Schedule 1
Schedule 1 Savings, transitional and other
provisions
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of any of the following Acts:
this Act or any other Act that amends this Act
any other Act to the extent that it confers or imposes (or amends an Act
or a statutory rule so as to confer or impose) jurisdiction or functions on
the Tribunal or to alter or remove any of the jurisdiction or functions of
the Tribunal
(2) If the regulations so provide, any such provision may:
(a) have effect despite any specified provisions of this Act (including
a provision of this Schedule), and
(b) take effect from the date of assent to the Act concerned or a later
date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication on the NSW legislation website,
the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
(4) A regulation made for the purposes of this clause may make separate
savings and transitional provisions or amend this Schedule to
consolidate the savings and transitional provisions.
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Civil and Administrative Tribunal Bill 2013
Schedule 1 Savings, transitional and other provisions
Part 2 Provisions consequent on enactment of this
Act
Division 1 Interpretation
2 Definitions
(1) In this Part:
current tribunal member of an existing tribunal means a person who,
immediately before the establishment day, held office as:
(a) the head of the tribunal or a division of the tribunal (however
described), or
(b) a deputy head of the tribunal (however described), or
(c) any other kind of member of the tribunal.
existing health practitioner tribunal means each of the following
Tribunals established under section 165 of the Health Practitioner
Regulation National Law (NSW):
(a) the Aboriginal and Torres Strait Islander Health Practice
Tribunal of New South Wales,
(b) the Chinese Medicine Tribunal of New South Wales,
(c) the Chiropractic Tribunal of New South Wales,
(d) the Dental Tribunal of New South Wales,
(e) the Medical Radiation Practice Tribunal of New South Wales,
(f) the Medical Tribunal of New South Wales,
(g) the Nursing and Midwifery Tribunal of New South Wales,
(h) the Occupational Therapy Tribunal of New South Wales,
(i) the Optometry Tribunal of New South Wales,
(j) the Osteopathy Tribunal of New South Wales,
(k) the Pharmacy Tribunal of New South Wales,
(l) the Physiotherapy Tribunal of New South Wales,
(m) the Podiatry Tribunal of New South Wales,
(n) the Psychology Tribunal of New South Wales.
existing tribunal means any of the following tribunals:
(a) the Aboriginal Land Councils Pecuniary Interest and
Disciplinary Tribunal established under the Aboriginal Land
Rights Act 1983,
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Savings, transitional and other provisions Schedule 1
(b) the Administrative Decisions Tribunal of New South Wales
established under the Administrative Decisions Tribunal Act
1997,
(c) the Charity Referees constituted as provided by section 5 of the
Dormant Funds Act 1942,
(d) the Consumer, Trader and Tenancy Tribunal of New South
Wales established under the Consumer, Trader and Tenancy
Tribunal Act 2001,
(e) the Guardianship Tribunal constituted under the Guardianship
Act 1987,
(f) each existing health practitioner tribunal,
(g) the Local Government Pecuniary Interest and Disciplinary
Tribunal established under the Local Government Act 1993,
(h) each local land board constituted under the Crown Lands Act
1989,
(i) the Victims Compensation Tribunal constituted under the
Victims Support and Rehabilitation Act 1996.
relevant amending Act, in relation to an existing tribunal that is to be
abolished, means another Act that provides for the repeal or amendment
(or both) of legislation relating to the tribunal consequent on the
abolition of the tribunal and the transfer of its functions to NCAT.
Note. A Bill for an Act to provide for the consequential repeal and amendment
of legislation that establishes or constitutes (or that confers functions on)
existing tribunals will be introduced in 2013.
(2) If a provision of this Part provides for a matter or other thing to occur
on a specified day, the matter or thing is taken to have occurred at the
beginning of the specified day.
(3) For the purposes of this Part (except clause 5), proceedings are not
finally determined if:
(a) any period for bringing an appeal as of right in respect of the
proceedings has not expired (ignoring any period that may be
available by way of extension of time to appeal), or
(b) any appeal in respect of the proceedings is pending (whether or
not it is an appeal brought as of right).
Division 2 Abolition of existing tribunals and transfer of
members
3 Abolition of existing tribunals
Each existing tribunal is abolished on the establishment day.
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Schedule 1 Savings, transitional and other provisions
4 Current tribunal members cease to hold office on establishment day
(1) Each current tribunal member of an existing tribunal ceases to hold
office as such on the establishment day.
(2) If a person ceases to hold an office by operation of this clause:
(a) the person is not entitled to any remuneration or compensation
because of the loss of that office, and
(b) the person is appointed to the new office or position in NCAT (if
any) specified in clause 5 for the kind of current tribunal member
concerned or, if clause 5 does not operate to make an
appointment, is eligible (if otherwise qualified) to be appointed
as a member of NCAT.
(3) This clause has effect despite anything to the contrary in any other
legislation concerning the circumstances or processes for the removal of
(or the vacation of office by) a current tribunal member of an existing
tribunal.
5 Transfer of current tribunal members to NCAT
(1) A person who is a current tribunal member of an existing tribunal of a
kind specified in Column 1 of the Table to this clause is taken, on and
from the establishment day, to have been appointed under this Act to the
kind of office or position in NCAT specified in Column 2 next to the
kind of current tribunal member specified in Column 1.
(2) A current tribunal member of an existing tribunal who is appointed as a
member of NCAT by operation of this clause is taken:
(a) if the current tribunal member's current office was for a term or
the member was entitled to hold his or her current office until a
specified age--to have been appointed as a term member, or
(b) if the current tribunal member's held his or her current office only
in relation to specified proceedings before the existing tribunal
and those proceedings have been transferred to NCAT by
clause 6--to have been appointed as an occasional member for
the proceedings until the proceedings are finally determined
(within the meaning of section 11).
(3) Despite clause 2 of Schedule 2, a current tribunal member of an existing
tribunal who is appointed as a term member of NCAT by operation of
this clause is taken to hold his or her new office in NCAT for:
(a) if the current tribunal member's current office was for a term--
the balance of that term, or
(b) if the current tribunal member was entitled to hold his or her
current office until a specified age--the period expiring on the
day the person attains that age.
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(4) A part-time current tribunal member who is appointed as a term
member of NCAT by operation of this clause is taken to have been
appointed as a part-time term member of NCAT.
(5) Clause 5 of Schedule 2 is taken to apply to a current tribunal member of
an existing tribunal who is appointed as a term member of NCAT by
operation of this clause as if the Minister had made a determination
under that clause (on the establishment day) for the member's
remuneration to be the same as the remuneration to which the current
tribunal member was entitled immediately before the establishment
day.
Note. Clause 5 of Schedule 2 provides that the remuneration of a term member
cannot be reduced during the member's term of office. However, the clause also
provides that a member who is a Judge of a New South Wales Court is not
entitled to remuneration under this Act while receiving remuneration as a Judge.
(6) If a person is appointed as a member of NCAT by operation of this
clause:
(a) in the case of appointment as a presidential member--the
Governor may issue an appropriate commission under the public
seal of the State to the person, and
(b) in the case of appointment as a non-presidential member--the
Minister may issue an appropriate instrument of appointment to
the person.
(7) A person's appointment as a member of NCAT is effective whether or
not a commission or instrument of appointment is issued under
subclause (6).
(8) This clause operates to appoint a person who holds office as a current
tribunal member of more than one existing tribunal to only one office or
position in NCAT. If there is a difference in seniority in the offices or
positions in NCAT concerned, the person is taken to have been
appointed to the most senior of the offices or positions in NCAT.
Note. Section 9 (1) lists the classes of members of NCAT in order of seniority.
(9) This clause does not:
(a) apply to a current tribunal member of an existing tribunal who is
appointed under this Act to be a member of NCAT before the
establishment day, or
(b) prevent a current tribunal member who becomes a member of
NCAT by operation of this clause from:
(i) being appointed, with the consent of the person, to a
different or additional office in NCAT under this Act, or
(ii) vacating office, subject to subclauses (2) and (3), in
accordance with the provisions of this Act.
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Civil and Administrative Tribunal Bill 2013
Schedule 1 Savings, transitional and other provisions
(10) A reference in the Table to this clause to a professional non-judicial
member of the Administrative Decisions Tribunal is a reference to a
non-judicial member of that Tribunal who:
(a) is an architect within the meaning of the Architects Act 2003, or
(b) is a registered surveyor within the meaning of the Surveying and
Spatial Information Act 2002, or
(c) is a registered health practitioner within the meaning of the
Health Practitioner Regulation National Law (NSW), or
(d) is a veterinary practitioner within the meaning of the Veterinary
Practice Act 2003, or
(e) has been appointed as a non-judicial member because he or she is
a member of another particular profession or occupation.
Table
Column 1 Column 2
Current tribunal member New NCAT office or position
Aboriginal Land Councils Pecuniary Interest and Disciplinary
Tribunal
Member Senior member
Administrative Decisions Tribunal
President Deputy President
Deputy President Principal member
Non-presidential judicial member Senior member
Professional non-judicial member Senior member
Non-judicial member (other than a General member
professional non-judicial member)
Charity Referees under the Dormant Funds Act 1942
Chairperson of the Charity Referees Principal member
Person appointed under section 5 General member
(1)-(3) of the Dormant Funds Act
1942
Consumer, Trader and Tenancy Tribunal
Chairperson Deputy President
Deputy Chairperson Principal member
(Determinations)
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Civil and Administrative Tribunal Bill 2013
Savings, transitional and other provisions Schedule 1
Column 1 Column 2
Current tribunal member New NCAT office or position
Deputy Chairperson (Registry and Deputy Registrar
Administration)
Senior member Senior member
Other member General member
Existing health practitioner tribunal
Chairperson Principal member
Deputy Chairperson Principal member
Other member who is a health Senior member
practitioner
Other member who is a lay person General member
Guardianship Tribunal
President Deputy President
Deputy President Principal member
Legal member (other than the Senior member
President or a Deputy President)
Professional member Senior member
Community member General member
Local Government Pecuniary Interest and Disciplinary Tribunal
Member Senior member
Local land boards under the Crown Lands Act 1989
Chairperson Principal member
Member (other than the Chairperson) General member
Victims Compensation Tribunal
Chairperson Deputy President
Member (other than the Chairperson) Senior member
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Civil and Administrative Tribunal Bill 2013
Schedule 1 Savings, transitional and other provisions
Division 3 Proceedings concerning abolished existing
tribunals
6 Pending proceedings before existing tribunal
(1) If proceedings were initiated or commenced but not heard by an existing
tribunal before the establishment day, the proceedings are taken on and
from that day to have been duly initiated or commenced in NCAT.
(2) If an existing tribunal had started to hear (but had not determined) a
matter before the establishment day, the person or persons hearing the
matter:
(a) are to continue on and from that day to hear the matter, and to
determine the matter, sitting as NCAT, and
(b) have and may exercise, while sitting as NCAT under this clause,
all the functions that the existing tribunal had immediately before
the establishment day, and
(c) are taken to have been duly appointed as members of NCAT for
the purposes of determining the matter even if the person or
persons have not been appointed as members of NCAT by or
under another provision of this Act.
7 Pending court proceedings
(1) This clause applies to proceedings before a court on an appeal against,
or for the judicial review of, a decision of an existing tribunal that:
(a) were instituted or commenced before the establishment day, and
(b) have not been finally determined by the court before that day.
(2) Proceedings to which this clause applies are to be determined as if this
Act and the relevant amending Act in relation to the existing tribunal
had not been enacted.
(3) Accordingly, any rules, regulations or other law that would have been
applicable to the proceedings had this Act and the relevant amending
Act not been enacted continue to apply to the proceedings as if neither
Act had been enacted.
8 Orders of existing tribunals
(1) An existing order of an existing tribunal made under other legislation is
taken on and from the establishment day to be an order made by NCAT
under the corresponding provision of that legislation (as amended by a
relevant amending Act) or this Act (as the case may be).
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(2) Any application for an order made to an existing tribunal under another
Act and not determined immediately before the establishment day is to
continue to be dealt with as if made under this Act (but only if there is
a corresponding provision of this Act under which the order could be
made).
(3) This clause is subject to the other provisions of this Schedule.
(4) In this clause:
existing order of an existing tribunal is an order made by the tribunal
before the establishment day, and includes an order that would have
come into effect on or after the establishment day.
Division 4 Miscellaneous
9 Expiration of current period
If, for any purpose, time had commenced to run under a provision of
other legislation in relation to an existing tribunal (but had not expired)
before the establishment day, it expires for the corresponding purpose
under that legislation (as amended by a relevant amending Act) or this
Act, as the case may be, at the time at which it would have expired if the
tribunal had not been abolished.
10 References to abolished existing tribunals
(1) On and from the establishment day:
(a) a reference in any other Act or in any instrument made under
another Act to an existing tribunal is to be read as a reference to
NCAT (as appropriately constituted to deal with the matter
concerned), and
(b) a reference in any other Act or in any instrument made under
another Act to a particular member of an existing tribunal is to be
read as a reference to the corresponding member of NCAT (as set
out in the Table to clause 5).
(2) The regulations may make provision for or with respect to the updating
of references in other Acts and instruments made under other Acts to an
existing tribunal, or in provisions conferring or imposing functions on
an existing tribunal, with effect on and from the establishment day.
(3) Subclause (1) does not apply to the following:
(a) a reference in a relevant amending Act,
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Schedule 1 Savings, transitional and other provisions
(b) a reference in a provision of another Act or instrument made
under another Act (as amended, substituted or inserted by a
relevant amending Act),
(c) such references in another Act or an instrument made under
another Act as may be prescribed by the regulations.
11 General savings
(1) If anything done, initiated or commenced under other legislation in
relation to an existing tribunal before the establishment day and still
having effect or not completed immediately before that day could have
been done, initiated or commenced under that legislation (as amended
by a relevant amending Act) or this Act if the relevant amending Act or
this Act had been in force when the thing was done, initiated or
commenced:
(a) the thing done continues to have effect, or
(b) the thing initiated or commenced may be completed as if it had
been done, initiated or commenced under the other legislation (as
amended) or this Act.
(2) This clause is subject to any express provision of this Act on the matter.
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Civil and Administrative Tribunal Bill 2013
Provisions relating to members Schedule 2
Schedule 2 Provisions relating to members
1 Acting President
(1) If the President is absent from duty, the most senior Deputy President is
to be Acting President unless the Minister makes an appointment under
subclause (2).
(2) The Minister may appoint a Deputy President to be Acting President
during the absence of the President from duty.
(3) The Minister may make any appointment for a particular absence or for
any absence that occurs from time to time.
(4) An Acting President has the functions of the President and anything
done by an Acting President in the exercise of those functions has effect
as if it had been done by the President.
(5) In this clause, absence from duty includes a vacancy in the office of
President.
2 Terms of appointment for term members
Subject to this Act, a term member holds office for a period (not
exceeding 5 years) specified in the member's instrument of
appointment, but is eligible for re-appointment.
3 Oaths
The Governor may require an oath to be taken by a presidential
member.
4 Protection and immunities of member
A member has, in the exercise of functions performed as a member, the
same protection and immunities as a Judge of the Supreme Court.
5 Remuneration of members
(1) A member is entitled to be paid:
(a) such remuneration as is determined by the Minister, and
(b) such travelling and subsistence allowances as the Minister may
from time to time determine in respect of the member.
(2) Without limiting subclause (1), the Minister may make different
determinations for the purposes of this clause for different classes of
members or members exercising different classes of functions.
(3) However, the Minister may not make a determination in relation to a
term member that operates to reduce the remuneration of the member
during his or her term of office.
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Civil and Administrative Tribunal Bill 2013
Schedule 2 Provisions relating to members
(4) A member is not, if a Judge of a New South Wales Court and while
receiving remuneration as such a Judge, entitled to remuneration under
this Act.
(5) In this clause, Judge of a New South Wales Court includes a NSW
judicial officer.
6 Vacancy in office of President
(1) The President cannot be removed from office except by the Governor
on an address from both Houses of Parliament in the same session
seeking removal on the ground of proved misbehaviour or incapacity
and in accordance with the applicable provisions of Parts 7 and 8 of the
Judicial Officers Act 1986. However, simply because the President is
removed from office under this subclause does not affect the person's
tenure as a judicial officer.
(2) The President may be suspended or retired from office in accordance
with the applicable provisions of Parts 7 and 8 of the Judicial Officers
Act 1986.
(3) If the President is suspended from office and is remunerated as
President at the time of the suspension, he or she is entitled to be paid
remuneration as President during the period of suspension at the current
rate applicable to the office.
(4) The office of President becomes vacant if the President:
(a) dies, or
(b) is removed from office or retires in accordance with this clause,
or
(c) completes a term of office and is not re-appointed, or
(d) resigns the office by written instrument addressed to the
Governor, or
(e) ceases to hold office as a Judge of the Supreme Court.
7 Vacancy in office of member (other than President)
(1) The office of a member (other than the President) becomes vacant if the
member:
(a) dies, or
(b) in the case of a term member--completes a term of office and is
not re-appointed, or
(c) in the case of an occasional member--when the proceedings in
relation to which the member has been appointed as an
occasional member have been finally determined for the
purposes of section 11, or
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Civil and Administrative Tribunal Bill 2013
Provisions relating to members Schedule 2
(d) resigns the office by written instrument addressed to the Minister,
or
(e) is nominated for election as a member of the Legislative Council
or of the Legislative Assembly or as a member of a House of
Parliament or a legislature of another State or Territory or of the
Commonwealth, or
(f) becomes bankrupt, applies to take the benefit of any law for the
relief of bankrupt or insolvent debtors, compounds with his or her
creditors or makes an assignment of his or her remuneration for
their benefit, or
(g) becomes a mentally incapacitated person, or
(h) is convicted in New South Wales of an offence that is punishable
by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if
committed in New South Wales, would be an offence so
punishable, or
(i) is removed from office under subclause (2).
(2) The Governor may remove a member (other than the President) from
office for incapacity, incompetence or misbehaviour.
8 Members and former members may complete unfinished matters
(1) This clause applies to a member (an affected member) dealing with any
matters relating to proceedings before the Tribunal that have been heard
or partly heard (or were otherwise the subject of deliberations) by the
member if, during the proceedings, the member:
(a) ceases to have a qualification specified by a Division Schedule
for a Division of the Tribunal or enabling legislation for
participation in the proceedings other than because of any of the
following reasons:
(i) misconduct or unsatisfactory conduct of the member,
(ii) the mental incapacity of the member,
(iii) the member becoming bankrupt or insolvent, or
(b) ceases to be a member because of the expiration of the period of
the member's appointment,
or both.
(2) An affected member may, despite becoming an affected member,
complete or otherwise continue to deal with any matters in the
proceedings concerned.
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Civil and Administrative Tribunal Bill 2013
Schedule 2 Provisions relating to members
(3) While completing or otherwise dealing with matters referred to in
subclause (2), the affected member is taken to have and may exercise all
the rights and functions of a member that the affected member had
immediately before becoming an affected member.
9 Leave for term members
(1) The entitlement of a term member to annual and other leave is to be as
stated in the instrument of appointment as a member.
(2) A member may be granted leave:
(a) in the case of the President--by the Minister, and
(b) in any other case--by the President.
(3) This clause is subject to clause 5.
10 Superannuation and leave--preservation of rights for term members
(1) In this clause:
eligible member means a term member who, immediately before
becoming such a member, was a public servant or an officer or
employee of a public authority declared by an Act or proclamation to be
an authority to which this clause applies.
superannuation scheme means a scheme, fund or arrangement under
which any superannuation or retirement benefits are provided and
which is established by or under an Act.
(2) An eligible member:
(a) may continue to contribute to any superannuation scheme to
which he or she was a contributor immediately before becoming
an eligible member, and
(b) is entitled to receive any payment, pension or gratuity accrued or
accruing under the scheme,
as if he or she had continued to be such a contributor during service as
a member.
(3) Service by the eligible member as a member is taken to be service as an
officer in his or her previous employment for the purposes of any law
under which the member continues to contribute to the scheme or by
which an entitlement under the scheme is conferred.
(4) The eligible member is to be regarded as an officer or employee, and the
State is to be regarded as the employer, for the purposes of the scheme.
(5) This clause ceases to apply to the eligible member if he or she becomes
a contributor to another superannuation scheme, but the eligible
member is not prevented from receiving a resignation benefit from the
first superannuation scheme.
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Provisions relating to members Schedule 2
(6) An eligible member retains any rights to annual leave, extended or long
service leave and sick leave accrued or accruing in his or her previous
employment.
(7) An eligible member is not entitled to claim, under both this Act and any
other Act, dual benefits of the same kind for the same period of service.
11 Provisions where Judge is holding office as member
(1) The appointment of a person who is the holder of a judicial office as a
member, or service as a member by a person who is the holder of a
judicial office, does not affect:
(a) the person's tenure of that judicial office, or
(b) the person's rank, title, status, remuneration or other rights or
privileges as the holder of that judicial office.
(2) The person's service as a member is, for all purposes, taken to be service
as the holder of that judicial office.
(3) In this clause:
judicial office means an office of a Judge of a court of New South
Wales (including a NSW judicial officer).
12 Delegations by the President and Division Heads
(1) The President may:
(a) delegate to a Division Head of a Division of the Tribunal or other
member any of the functions of the President (other than this
power of delegation), or
(b) delegate to the Registrar, a Deputy Registrar or any other member
of staff of the Tribunal any of the functions of the President (other
than this power of delegation) prescribed by the regulations or the
Tribunal rules.
Note. Section 49 of the Interpretation Act 1987 contains general provisions
relating to the delegation of functions.
(2) The Division Head of a Division of the Tribunal may:
(a) delegate to a List Manager of the Division any of the functions of
the Division Head (other than this power of delegation), or
(b) delegate to the Registrar, a Deputy Registrar or any other member
of staff of the Tribunal any of the functions of the Division Head
(other than this power of delegation) prescribed by the
regulations or the Tribunal rules.
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Schedule 2 Provisions relating to members
13 Disclosure of pecuniary and other interests
The regulations may make provision for or with respect to:
(a) the disclosure by members of interests (whether pecuniary or
otherwise) that could conflict with the proper performance of the
functions of a member in proceedings, and
(b) the participation of members in proceedings in which there may
be a conflict of interest (including the effect of participation on
the validity of decisions made in the proceedings).
14 Effect of other Acts
(1) The Public Sector Employment and Management Act 2002 does not
apply to the appointment of a member, and the holder of the office is
not, as holder, subject to that Act.
(2) If, by or under any Act, provision is made:
(a) requiring a person who is the holder of a specified office to
devote the whole of his or her time to the duties of that office, or
(b) prohibiting the person from engaging in employment outside the
duties of that office,
the provision does not operate to disqualify the person from holding that
office and also the office of a part-time member or from accepting and
retaining any remuneration payable to the person under this Act as a
part-time member.
15 Application of Schedule to acting members
(1) Subject to subclause (2), all of the provisions of this Schedule apply to
acting members.
(2) Clause 2 does not apply to an appointment by or under section 15.
(3) In this clause, acting member means a person appointed by or under this
Act to act as a member.
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Civil and Administrative Tribunal Bill 2013
Administrative and Equal Opportunity Division Schedule 3
Schedule 3 Administrative and Equal Opportunity
Division
Part 1 Interpretation
1 Definitions
In this Schedule:
Division Head means the Division Head of the Division.
the Division means the Administrative and Equal Opportunity Division
of the Tribunal.
Part 2 Composition of Division
2 Division members
The Division is to be composed of the following members:
(a) the Division Head,
(b) such other members as may be assigned to the Division by or
under this Act.
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Civil and Administrative Tribunal Bill 2013
Schedule 4 Consumer and Commercial Division
Schedule 4 Consumer and Commercial Division
Part 1 Interpretation
1 Definitions
In this Schedule:
Division Head means the Division Head of the Division.
the Division means the Consumer and Commercial Division of the
Tribunal.
Part 2 Composition of Division
2 Division members
The Division is to be composed of the following members:
(a) the Division Head,
(b) such other members as may be assigned to the Division by or
under this Act.
3 Appointment of Division Head
The Minister may not recommend the appointment of a person as the
Division Head unless the Minister has consulted with the Minister for
Fair Trading about the appointment.
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Civil and Administrative Tribunal Bill 2013
Occupational and Regulatory Division Schedule 5
Schedule 5 Occupational and Regulatory Division
Part 1 Interpretation
1 Definitions
In this Schedule:
Division function means a function of the Tribunal allocated to the
Division by this Schedule.
Division Head means the Division Head of the Division.
the Division means the Occupational and Regulatory Division of the
Tribunal.
Part 2 Composition of Division
2 Division members
The Division is to be composed of the following members:
(a) the Division Head,
(b) such other members as may be assigned to the Division by or
under this Act.
3 Appointment of Division Head
The Minister may not recommend the appointment of a person as the
Division Head unless the Minister has consulted with the Minister for
Health about the appointment.
Part 3 Functions of Division
4 Functions allocated to Division
(1) The functions of the Tribunal in relation to the following legislation (or
specified provisions of legislation) are allocated to the Division:
Health Practitioner Regulation National Law (NSW)
(2) Subclause (1) extends to functions conferred or imposed on the Tribunal
by statutory rules made under legislation (or a provision of legislation)
listed in the subclause.
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Civil and Administrative Tribunal Bill 2013
Schedule 5 Occupational and Regulatory Division
Part 4 Health Practitioner Division List
5 Definitions
In this Part:
health practitioner has the same meaning as in the National Law, and
includes a student within the meaning of that Law.
Health Practitioner Division List--see clause 6.
National Law means the Health Practitioner Regulation National Law
(NSW).
6 Establishment of Health Practitioner Division List
(1) A Health Practitioner Division List is established on the establishment
day as a Division List of the Division.
(2) All proceedings involving the exercise of a Division function in relation
to the National Law are to be entered and managed in the Health
Practitioner Division List.
7 List Manager of Health Practitioner Division List
(1) A Division member is to be designated as the List Manager for the
Health Practitioner Division List, but only on the recommendation of
the Minister for Health.
(2) The functions of the List Manager for the Health Practitioner Division
List are:
(a) to manage the proceedings that are entered in the List, and
(b) to constitute the Tribunal for proceedings entered in the List
(subject to any direction of the President or Division Head of the
Division) as if the function of constituting the Tribunal for such
proceedings had been delegated to the List Manager under
clause 12 (2) (a) of Schedule 2, and
(c) to exercise such other functions as are conferred or imposed on
the List Manager by or under this Act.
(3) The List Manager for the Health Practitioner Division List may delegate
to another Division member any of the List Manager's functions (other
than this power of delegation), including functions relating to the
management of proceedings involving any particular class of health
practitioner.
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Occupational and Regulatory Division Schedule 5
8 Appointment and assignment of Division members where required
under National Law
The President must:
(a) appoint a person as an occasional member for particular
proceedings entered in the Health Practitioner Division List if
that person has been selected for participation in the proceedings
in accordance with any applicable procedures specified by or
under the National Law, and
(b) assign a term member to the Division to participate in a particular
class of proceedings entered in the Health Practitioner Division
List if the person has been selected for participation in that class
of proceedings in accordance with any applicable procedures
specified by or under the National Law.
9 Constitution of Tribunal for proceedings entered in Health Practitioner
Division List
(1) The Tribunal, when exercising a Division function in proceedings that
are entered in the Health Practitioner Division List, is to be constituted
in accordance with any applicable requirements specified by or under
the National Law for the constitution of the Tribunal in proceedings of
the kind concerned.
(2) Nothing in subclause (1) limits the exercise by the List Manager for the
Health Practitioner Division List (or a delegate of the List Manager) of
any of the functions of the List Manager.
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Civil and Administrative Tribunal Bill 2013
Schedule 6 Guardianship Division
Schedule 6 Guardianship Division
Part 1 Interpretation
1 Definitions
In this Schedule:
Division Head means the Division Head of the Division.
the Division means the Guardianship Division of the Tribunal.
Part 2 Composition of Division
2 Division members
The Division is to be composed of the following members:
(a) the Division Head,
(b) such other members as may be assigned to the Division by or
under this Act.
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Civil and Administrative Tribunal Bill 2013
Victims Support Division Schedule 7
Schedule 7 Victims Support Division
Part 1 Interpretation
1 Definitions
In this Schedule:
Division Head means the Division Head of the Division.
the Division means the Victims Support Division of the Tribunal.
Part 2 Composition of Division
2 Division members
The Division is to be composed of the following members:
(a) the Division Head,
(b) such other members as may be assigned to the Division by or
under this Act.
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