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This is a Bill, not an Act. For current law, see the Acts databases.


STATE ADMINISTRATIVE TRIBUNAL BILL 2003

                          Western Australia


      State Administrative Tribunal Bill 2003

                            CONTENTS


         Part 1 -- Preliminary
1.       Short title                                            2
2.       Commencement                                           2
3.       Terms used in this Act                                 2
4.       What it means to bring or conduct proceeding
         vexatiously                                            7
5.       Enabling Act prevails                                  7
6.       Crown bound                                            7
         Part 2 -- The State Administrative
              Tribunal
7.       Tribunal established                                   8
8.       The Tribunal's jurisdiction                            8
9.       Main objectives of the Tribunal                        8
10.      Tribunal to operate throughout the State               8
11.      President specifies who constitutes the Tribunal       8
12.      Contemporaneous exercise of Tribunal's jurisdiction   11
         Part 3 -- Jurisdiction of the Tribunal
         Division 1 -- Preliminary matters
13.      Source of jurisdiction                                12
14.      Kinds of jurisdiction                                 12
         Division 2 -- Original jurisdiction
15.      What comes within original jurisdiction               12
16.      Exercising original jurisdiction                      12




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State Administrative Tribunal Bill 2003



Contents



            Division 3 -- Review jurisdiction
            Subdivision 1 -- General provisions
   17.      What comes within review jurisdiction                   13
   18.      Exercising review jurisdiction                          13
   19.      Relationship of statutory right of review to judicial
            review                                                  13
            Subdivision 2 -- Information about reviewable
                   decision
   20.      Advice of decision and right to have it reviewed        15
   21.      Statement of reasons for decision                       16
   22.      Tribunal may order decision-maker to provide reasons    17
   23.      Exceptions to what has to be provided                   17
   24.      Provision of documents and material by
            decision-maker                                          17
            Subdivision 3 -- The review
   25.      Effect of proceeding on reviewable decision             18
   26.      Restriction on powers of decision-maker after review
            commenced                                               19
   27.      Nature of the hearing                                   19
   28.      Considering government policy                           20
   29.      Powers of Tribunal on review                            20
   30.      Decision-maker to assist Tribunal                       21
   31.      Tribunal may invite decision-maker to reconsider        22
            Part 4 -- Tribunal's procedures
            Division 1 -- Introduction
   32.      Practice and procedure, generally                       23
   33.      Practice notes                                          25
   34.      Directions                                              25
   35.      Obtaining information from third parties                26
   36.      Parties                                                 26
   37.      Intervening in proceeding                               27
   38.      Joining as a party                                      27
   39.      Representation                                          27
   40.      Tribunal may appoint representative or guardian         28
   41.      Interpreters                                            29
            Division 2 -- Preliminary procedures
   42.      Commencing proceeding                                   29
   43.      Fee for commencing proceeding                           29

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                                State Administrative Tribunal Bill 2003



                                                               Contents



44.   Rejecting an application or accepting an application
      conditionally                                              29
45.   Who has to be given a copy of an application               30
46.   Dismissing proceeding on withdrawal or for want of
      prosecution                                                31
47.   Unjustified proceedings                                    32
48.   Conduct of proceeding causing disadvantage                 32
49.   Restriction on new application                             33
50.   More appropriate forum                                     33
51.   Consolidation of proceedings                               34
52.   Compulsory conference                                      34
53.   Failure to attend compulsory conference                    35
54.   Mediation                                                  35
55.   Evidence of certain things inadmissible                    36
56.   Settlement                                                 37
      Division 3 -- Proceedings and hearings
57.   Presiding member                                           37
58.   Decision of Tribunal if 2 or more sitting members          38
59.   Deciding questions of law                                  38
60.   Electronic hearings and proceedings without hearings       40
61.   Public hearings                                            40
62.   Publication of information from or about a proceeding      41
63.   Notice of hearings                                         42
64.   Tribunal may call on expert or professional assistance     42
65.   Special referees                                           42
66.   Summoning witness                                          43
67.   Powers relating to witnesses                               43
68.   Privilege against self-incrimination                       44
69.   Other claims of privilege                                  45
70.   Oaths and affirmations                                     45
71.   Authorising person to take evidence                        45
72.   Dealing with things produced                               46
      Division 4 -- Decisions made by Tribunal
73.   Conditional and ancillary orders and directions            46
74.   Form of decision                                           46
75.   To whom copy of written decision has to be given           47
76.   Time limit for reserved decision                           47
77.   Reasons for final decision                                 47
78.   Written reasons may be requested                           47
79.   Written decision or reasons using transcript               48

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State Administrative Tribunal Bill 2003



Contents



   80.      Validity of decision                                    48
   81.      When decision has effect                                48
   82.      Correcting mistakes                                     48
   83.      Tribunal may review its decision if person was absent   49
   84.      Enforcement of monetary order                           50
   85.      Enforcement of decision other than monetary order       50
            Division 5 -- Costs
   86.      Costs of parties and others                             51
   87.      Costs of proceeding                                     51
   88.      Amount of costs                                         52
            Division 6 -- Other procedural provisions
   89.      Injunction                                              52
   90.      Declaration                                             53
   91.      Relief from procedural requirements                     54
   92.      Entry and inspection                                    54
   93.      Tribunal to give Supreme Court documents and things     55
            Division 7 -- Offences
   94.      Failing to comply with decision                         57
   95.      Failing to comply with summons                          57
   96.      Failing to give evidence as required                    58
   97.      Giving false or misleading information                  58
   98.      Misbehaviour and other conduct                          58
   99.      Contempt                                                59
            Division 8 -- Arrest warrants
   100.     Exercise of powers under this Division                  59
   101.     Arrest                                                  59
   102.     Conditional release from custody                        60
   103.     Review by Supreme Court                                 61
            Part 5 -- Appeals from Tribunal's
                 decisions
   104.     Appeal from Tribunal's decision                         62
   105.     Effect of decision against which appeal made            63




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                                State Administrative Tribunal Bill 2003



                                                              Contents



       Part 6 -- Tribunal's membership and
            other provisions
       Division 1 -- Members of the Tribunal
       Subdivision 1 -- Kinds of members
106.   Tribunal members                                          64
       Subdivision 2 -- President
107.   Appointment of President                                  64
108.   Tenure of President's office                              64
109.   Vacating office prematurely                               65
110.   President's status as Supreme Court Judge                 65
       Subdivision 3 -- Deputy President
111.   Appointment of Deputy President                           66
112.   Tenure of Deputy President's office                       66
113.   Vacating office prematurely                               66
114.   Deputy President's status as District Court Judge         67
       Subdivision 4 -- Other members
115.   Appointment of non-judicial members                       67
116.   Tenure of non-judicial office                             68
117.   Conditions of service as non-judicial member              69
118.   Outside employment prohibited                             69
119.   Code of conduct                                           70
120.   Suspension of non-judicial member                         70
121.   Why termination may be recommended                        71
122.   Investigation of non-judicial member                      71
123.   Action on investigator's report                           71
124.   Deciding whether to recommend termination                 72
125.   Vacating office prematurely                               72
       Division 2 -- Acting and supplementary members
       Subdivision 1 -- Acting President
126.   Appointment to act as President                           73
127.   Terminating acting prematurely                            74
128.   Acting President's status as Supreme Court Judge          74
129.   Deputy President may sometimes act as President           75
130.   Deputy President's allowance for acting as President      75
131.   Consequences of acting                                    75
       Subdivision 2 -- Acting Deputy President
132.   Appointment to act as Deputy President                    75


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State Administrative Tribunal Bill 2003



Contents



   133.     Terminating acting prematurely                          76
   134.     Acting Deputy President's status as District Court
            Judge                                                   77
   135.     Consequences of acting                                  77
            Subdivision 3 -- Supplementary judicial members
   136.     Supplementary President                                 77
   137.     Supplementary President's status as Supreme Court
            Judge                                                   78
   138.     Supplementary Deputy Presidents                         79
   139.     Supplementary Deputy President's status as District
            Court Judge                                             79
            Division 3 -- Other matters about Tribunal
                  members
   140.     Fixing the period of appointment                        80
   141.     Training                                                80
   142.     Disclosure of interests                                 80
   143.     Completion of matters                                   81
            Part 7 -- Administration
   144.     Responsibility for administration of Act                82
   145.     President to advise Minister                            82
   146.     Executive officer and other staff of Tribunal           82
   147.     Delegation by judicial member                           83
   148.     Annual reports of the Tribunal                          83
   149.     Laying before House of Parliament that is not sitting   84
            Part 8 -- Other matters
   150.     Official seal                                           85
   151.     Judicial notice                                         85
   152.     Validity of decisions                                   85
   153.     Register of proceedings                                 86
   154.     Publication of Tribunal's decisions                     86
   155.     Secrecy                                                 87
   156.     Protection from disclosure by others                    88
   157.     Whether disclosure contrary to public interest          88
   158.     How Tribunal is to deal with protected matter           90
   159.     Application of the Freedom of Information Act 1992      90
   160.     Immunity                                                90
   161.     Protection from liability                               91
   162.     Protection for compliance with this Act                 92

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                                                               Contents



163.   Proceedings for defamation not to lie                      92
164.   General principles governing transfer of jurisdiction      92
165.   Regulations                                                95
166.   Tribunal's rules                                           95
167.   Rules Committee                                            95
       Part 9 -- Minor amendments to other
            Acts
168.   Constitution Acts Amendment Act 1899 amended               97
169.   Interpretation Act 1984 amended                            97
170.   Legal Representation of Infants Act 1977 amended           98
171.   Parliamentary Commissioner Act 1971 amended                98
       Defined Terms




                                                                page vii
                           Western Australia


                     LEGISLATIVE ASSEMBLY

              (As amended during consideration in detail)


      State Administrative Tribunal Bill 2003


                               A Bill for


An Act to establish a tribunal with jurisdiction under this and other
Acts to review certain administrative decisions and deal with certain
other matters, and for related purposes.



The Parliament of Western Australia enacts as follows:




                                                               page 1
     State Administrative Tribunal Bill 2003
     Part 1          Preliminary

     s. 1



                              Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the State Administrative Tribunal
                Act 2003.

5    2.         Commencement
          (1)   This Act comes into operation on a day fixed by proclamation.
          (2)   Different days may be fixed under subsection (1) for different
                provisions.

     3.         Terms used in this Act
10        (1)   In this Act, unless the contrary intention appears --
                "appear" at a hearing means to appear in person or participate
                     in a way allowed under this Act;
                "applicant" means --
                     (a) in the context of the Tribunal's review jurisdiction,
15                         the person who --
                               (i) applies to the Tribunal for a review;
                              (ii) otherwise brings a matter before the Tribunal;
                                    or
                             (iii) requests, requires, or otherwise seeks that a
20                                  matter be referred to, or otherwise brought
                                    before, the Tribunal;
                     (b) in any other context, the person who --
                               (i) brings a matter before the Tribunal; or
                              (ii) requests, requires, or otherwise seeks that a
25                                  matter be referred to, or otherwise brought
                                    before, the Tribunal,
                     except that it does not include a person who is required by
                     an enabling Act or section 44(3) to refer a matter to the



     page 2
                                State Administrative Tribunal Bill 2003
                                           Preliminary           Part 1

                                                                   s. 3



         Tribunal, or otherwise bring a matter before the Tribunal,
         as sought by another person;
     "application" means --
          (a) in the context of the Tribunal's review jurisdiction --
5                 (i) an application by an applicant for a review; or
                 (ii) a referral or other means of bringing a matter
                         before the Tribunal by, or as sought by, an
                         applicant;
          (b) in any other context, a referral or other means of
10              bringing a matter before the Tribunal by, or as sought
                by, an applicant;
     "chief executive officer" means the chief executive officer
         under the Public Sector Management Act 1994 of the
         Department;
15   "decision" of the Tribunal includes an order, direction, or
         determination of the Tribunal;
     "decision-maker" means a person who makes a reviewable
         decision;
     "Department" means the department principally assisting the
20       Minister in the administration of this Act;
     "Deputy President" means a Deputy President of the Tribunal;
     "enabling Act" means another Act, or a portion of another Act,
         under which jurisdiction is conferred on the Tribunal and,
         if relevant, it includes subsidiary legislation under that
25       other Act;
     "executive officer" means the officer made available under
         section 146(1) to perform the functions under this Act of
         the executive officer of the Tribunal;
     "exempt document" has the meaning given to that term in the
30       Glossary at the end of the Freedom of Information
         Act 1992;
     "final decision" means a decision of the Tribunal that disposes
         of the matter raised in the application;

                                                                page 3
     State Administrative Tribunal Bill 2003
     Part 1          Preliminary

     s. 3



              "judicial member" means the President or a Deputy President;
              "legal experience" means --
                   (a) standing and practice in the State as a legal
                         practitioner;
5                 (b) standing and practice in another State or a Territory
                         as a barrister or solicitor of the Supreme Court of that
                         State or Territory;
                   (c) judicial service (including service as a judge of a
                         court, a magistrate or other judicial officer) in the
10                       State or elsewhere in a common law jurisdiction; or
                  (d) a combination of 2 or more kinds of legal experience
                         mentioned in paragraphs (a) to (c);
              "legal practitioner" mean a person admitted and entitled to
                  practise as a barrister and solicitor of the Supreme Court;
15            "legally qualified member" means --
                   (a) a judicial member; or
                  (b) a non-judicial member who is a qualified person and
                         has had not less than 5 years' legal experience;
              "member of staff " of the Tribunal refers to the executive
20                officer and other officers of the Department made available
                  under section 146(2);
              "monetary order" means an order of the Tribunal requiring the
                  payment of money, and includes --
                   (a) an order for the payment of a fine or other pecuniary
25                       penalty; and
                  (b) an order under Part 4 Division 5;
              "non-judicial member" means a member of the Tribunal who
                  is not the President or a Deputy President;
              "ordinary member" means a member of the Tribunal who is
30                not the President, a Deputy President, or a senior member;
              "original jurisdiction" of the Tribunal means its jurisdiction
                  other than its review jurisdiction;


     page 4
                               State Administrative Tribunal Bill 2003
                                          Preliminary           Part 1

                                                                  s. 3



     "party" has the meaning given to that term in section 36;
     "President" means the President of the Tribunal;
     "presiding member" means the sitting member of the Tribunal
         who --
5        (a) alone constitutes the Tribunal for dealing with the
               matter concerned; or
         (b) presides at a proceeding of the Tribunal for dealing
               with the matter concerned;
     "protected matter" means --
10       (a) any information or document to which a certificate
               under section 157(2) applies, except to the extent that
               an order of the Tribunal under section 157(4) that its
               disclosure would not be contrary to the public interest
               has effect; or
15       (b) an exempt document;
     "public sector employee" has the meaning given to the term
         "employee" in section 3(1) of the Public Sector
         Management Act 1994;
     "qualified person" means a person who --
20       (a) is on the roll of practitioners of the Supreme Court; or
         (b) is a practising barrister of the High Court of
               Australia;
     "review jurisdiction" of the Tribunal means its jurisdiction
         described in section 17(1);
25   "reviewable decision" has the meaning given to that term in
         section 17(3);
     "Rules Committee" has the meaning given to that term in
         section 167;
     "senior member" means a non-judicial member appointed as a
30       senior member of the Tribunal;




                                                               page 5
     State Administrative Tribunal Bill 2003
     Part 1          Preliminary

     s. 3



              "sitting member" of the Tribunal means a person who
                   constitutes, or is one of the persons constituting, the
                   Tribunal for dealing with the matter concerned;
              "Tribunal" means the State Administrative Tribunal
5                  established by this Act and constituted in accordance with
                   this Act or an enabling Act;
              "Tribunal member" means a person who is a member of the
                   Tribunal under Part 6;
              "vexatiously", in the context of bringing or conducting a
10                 proceeding, has the meaning given in section 4;
              "vocational regulatory body" means a body which, under an
                   enabling Act prescribed by regulations for the purposes of
                   this definition, exercises control over a person's capacity to
                   lawfully pursue a vocation, but does not include the
15                 Tribunal;
              "witness" means a person who appears before the Tribunal to
                   give evidence, whether the person has been summoned to
                   appear or appears without being summoned.
        (2)   Where section 44(3) or (4) gives jurisdiction to the Tribunal to
20            deal with a matter, references in this Act to the enabling Act are
              to be disregarded in relation to that matter.
        (3)   If under an enabling Act a person's failure or omission to do
              something is reviewable under this Act as a decision --
                (a) this Act applies as if that person had made that decision;
25                    and
                (b) any provision of the enabling Act as to when the
                      decision is taken to have been made has effect.
        (4)   A reference in this Act to the making of an application to the
              Tribunal includes a reference to a matter being referred to or
30            otherwise brought before the Tribunal.




     page 6
                                     State Administrative Tribunal Bill 2003
                                                Preliminary           Part 1

                                                                        s. 4



     4.   What it means to bring or conduct proceeding vexatiously
          A person brings or conducts a proceeding vexatiously if it
          would result in the proceeding being "vexatious proceedings" as
          defined in the Vexatious Proceedings Restriction Act 2002
5         section 3.

     5.   Enabling Act prevails
          If there is any inconsistency between this Act and an enabling
          Act, the enabling Act prevails.

     6.   Crown bound
10        This Act binds the Crown in right of the State and, subject to the
          limits of the legislative power of the State, the Crown in all its
          other capacities.




                                                                     page 7
     State Administrative Tribunal Bill 2003
     Part 2          The State Administrative Tribunal

     s. 7



                 Part 2 -- The State Administrative Tribunal
     7.           Tribunal established
                  A tribunal called the State Administrative Tribunal is
                  established.

5    8.           The Tribunal's jurisdiction
                  The Tribunal has the jurisdiction described in Part 3.

     9.           Main objectives of the Tribunal
                  The main objectives of the Tribunal in dealing with matters
                  within its jurisdiction are --
10                 (a) to achieve the resolution of questions, complaints or
                          disputes, and make or review decisions, fairly and
                          according to the substantial merits of the case;
                   (b) to act as speedily and with as little formality and
                          technicality as is practicable, and minimise the costs to
15                        parties; and
                   (c) to make appropriate use of the knowledge and
                          experience of Tribunal members.

     10.          Tribunal to operate throughout the State
                  The Tribunal is to facilitate access to its services throughout
20                Western Australia and may sit at any place in Western
                  Australia.

     11.          President specifies who constitutes the Tribunal
           (1)    When exercising its jurisdiction, the Tribunal is to be
                  constituted by a person who is a Tribunal member or persons
25                who are Tribunal members, as specified by the President.
           (2)    The Tribunal is not to be constituted by more than 3 members.
           (3)    Despite subsections (2) and (4)(b), the President can specify that
                  the Tribunal is to be constituted by 4 members or 5 members if

     page 8
                                       State Administrative Tribunal Bill 2003
                              The State Administrative Tribunal         Part 2

                                                                            s. 11



           the President is satisfied that it is appropriate to do so in
           particular circumstances.
     (4)   The President is to ensure that --
            (a) the Tribunal is constituted by, or includes at least one,
5                 person who is a legally qualified member; and
            (b) when dealing with a decision of a vocational regulatory
                  body or a matter brought before the Tribunal by a
                  vocational regulatory body, the Tribunal is constituted
                  by 3 persons, being --
10                   (i) one person who is a legally qualified member;
                    (ii) one person who has extensive or special
                          experience in the same vocation as the person
                          affected by the decision; and
                   (iii) one person not engaged in that vocation who is
15                        familiar with the interests of persons dealing
                          with persons engaged in that vocation or has
                          knowledge or experience enabling the person to
                          understand those interests.
     (5)   Subsection (4)(a) does not apply if the President is satisfied that
20         the proceeding will not involve any issue requiring the
           knowledge of a legally qualified member.
     (6)   Subsection (4)(a) does not apply to --
            (a) a procedural hearing other than a directions hearing;
            (b) a compulsory conference; or
25          (c) the appointment of a Tribunal member as a mediator.
     (7)   Subsection (4)(b) does not apply to --
            (a) a directions hearing or other procedural hearing;
            (b) a compulsory conference; or
            (c) the appointment of a Tribunal member as a mediator.




                                                                           page 9
     State Administrative Tribunal Bill 2003
     Part 2          The State Administrative Tribunal

     s. 11



        (8)    In specifying the persons by whom the Tribunal is to be
               constituted for dealing with a particular matter and the number
               of those persons, the President is to have regard to --
                 (a) the degrees of the public importance and the complexity
5                      of the matter;
                 (b) if the matter comes within the Tribunal's review
                       jurisdiction, the nature and status of the office of the
                       decision-maker who made the reviewable decision;
                 (c) the extent to which any sitting member of the Tribunal
10                     needs to have special knowledge or experience that is
                       relevant to the matter;
                 (d) the need to ensure that a person who has had previous
                       involvement with the matter, otherwise than as a
                       Tribunal member, is not a sitting member of the
15                     Tribunal;
                 (e) subsection (9) and section 142; and
                  (f) anything else that the President considers relevant.
        (9)    A person is not allowed to be a sitting member of the Tribunal,
               or perform any function as a Tribunal member, in relation to a
20             matter in the Tribunal's review jurisdiction if the person was --
                 (a) the decision-maker in relation to that matter; or
                 (b) a member of a body that was the decision-maker in
                       relation to that matter.
       (10)    The President may alter who is to constitute the Tribunal for the
25             purpose of dealing with a matter, or anything relating to a
               matter, and the Tribunal as constituted after the alteration can
               have regard to any record of the proceeding of the Tribunal in
               relation to the matter before the alteration or any evidence taken
               in the proceeding before the alteration.




     page 10
                                     State Administrative Tribunal Bill 2003
                            The State Administrative Tribunal         Part 2

                                                                       s. 12



    12.   Contemporaneous exercise of Tribunal's jurisdiction
          The Tribunal constituted in accordance with this Act or an
          enabling Act may sit and exercise the jurisdiction of the
          Tribunal even though the Tribunal differently constituted in
5         accordance with this Act or an enabling Act is at the same time
          sitting and exercising the jurisdiction of the Tribunal.




                                                                    page 11
     State Administrative Tribunal Bill 2003
     Part 3          Jurisdiction of the Tribunal
     Division 1      Preliminary matters
     s. 13



                   Part 3 -- Jurisdiction of the Tribunal
                         Division 1 -- Preliminary matters
     13.         Source of jurisdiction
           (1)   A provision of an enabling Act that enables an application to be
5                made to the Tribunal gives the Tribunal jurisdiction to deal with
                 the matter concerned.
           (2)   In addition to the jurisdiction that an enabling Act gives to deal
                 with a matter, the Tribunal has any jurisdiction that this Act
                 gives in relation to that matter.
10         (3)   The Tribunal also has the jurisdiction given by section 44(3)
                 and (4).

     14.         Kinds of jurisdiction
                 A matter in which the Tribunal has jurisdiction comes within
                 either its original jurisdiction or its review jurisdiction.

15                       Division 2 -- Original jurisdiction
     15.         What comes within original jurisdiction
           (1)   If the matter that an enabling Act gives the Tribunal jurisdiction
                 to deal with does not involve a review of a decision, the matter
                 comes within the Tribunal's original jurisdiction.
20         (2)   A matter referred to the Tribunal under section 44(4) comes
                 within the Tribunal's original jurisdiction.

     16.         Exercising original jurisdiction
           (1)   In exercising its original jurisdiction the Tribunal is to deal with
                 a matter in accordance with this Act and the enabling Act.
25         (2)   The enabling Act may modify the operation of this Act in
                 relation to a matter that comes within the Tribunal's original
                 jurisdiction.


     page 12
                                            State Administrative Tribunal Bill 2003
                                          Jurisdiction of the Tribunal       Part 3
                                                  Review jurisdiction   Division 3
                                                                               s. 17



                          Division 3 -- Review jurisdiction

                         Subdivision 1 -- General provisions

     17.         What comes within review jurisdiction
           (1)   If the matter that an enabling Act gives the Tribunal jurisdiction
5                to deal with is a matter that expressly or necessarily involves a
                 review of a decision, the matter comes within the Tribunal's
                 review jurisdiction.
           (2)   A matter referred to the Tribunal under section 44(3) comes
                 within the Tribunal's review jurisdiction.
10         (3)   Where subsection (1) or (2) applies the decision is a
                 "reviewable decision" for the purposes of this Act.

     18.         Exercising review jurisdiction
           (1)   In exercising its review jurisdiction the Tribunal is to deal with
                 a matter in accordance with this Act and the enabling Act.
15         (2)   The enabling Act may modify the operation of this Act in
                 relation to a matter that comes within the Tribunal's review
                 jurisdiction.

     19.         Relationship of statutory right of review to judicial review
           (1)   In this section --
20               "judicial review proceedings" means proceedings in which
                     any of the following is sought --
                     (a) a writ of certiorari, mandamus, or prohibition;
                     (b) another prerogative writ;
                     (c) a declaratory judgment.
25         (2)   The right given by an enabling Act or section 44(3) to have a
                 decision reviewed by the Tribunal does not exclude any right to
                 take judicial review proceedings in relation to the decision.



                                                                            page 13
     State Administrative Tribunal Bill 2003
     Part 3          Jurisdiction of the Tribunal
     Division 3      Review jurisdiction
     s. 19



        (3)    However --
                (a) a Tribunal proceeding for the review of a reviewable
                    decision cannot be commenced at the same time as
                    judicial review proceedings are commenced in relation
5                   to the decision;
                (b) if a Tribunal proceeding for the review of a reviewable
                    decision has commenced, judicial review proceedings
                    cannot subsequently be commenced in relation to the
                    decision; and
10              (c) if judicial review proceedings have commenced in
                    relation to a reviewable decision, a Tribunal proceeding
                    for the review of the decision cannot subsequently be
                    commenced.
        (4)    Subsection (3)(b) applies both during the tribunal proceeding
15             and after the proceeding has ended but --
                 (a) it does not apply if the proceeding is struck out under
                       section 50(1) because the Tribunal considers that
                       judicial review proceedings would be more appropriate;
                       and
20               (b) it does not affect judicial review proceedings in relation
                       to the decision of the Tribunal.
        (5)    Subsection (3)(c) applies both during the judicial review
               proceedings and after those proceedings have ended but it does
               not apply if they are dismissed or struck out --
25               (a) because of procedural defects and not on their
                      substantive merits; or
                 (b) because the court considers them to be inappropriate or
                      considers that a Tribunal proceeding would be more
                      appropriate.
30      (6)    This section is intended to operate even if the enactment which
               gives a right to have a decision reviewed by the Tribunal was
               enacted after the commencement of this section.



     page 14
                                             State Administrative Tribunal Bill 2003
                                           Jurisdiction of the Tribunal       Part 3
                                                   Review jurisdiction   Division 3
                                                                                s. 20



                 Subdivision 2 -- Information about reviewable decision

     20.          Advice of decision and right to have it reviewed
           (1)    If this subsection applies to a reviewable decision, the
                  decision-maker is to give any person who has a right under an
5                 enabling Act or section 44(3) to have the decision reviewed by
                  the Tribunal written notice of --
                    (a) the decision; and
                    (b) that right.
           (2)    Subsection (1) applies to any reviewable decision unless --
10                 (a) the decision does not adversely affect the interests of the
                         person who has that right and --
                            (i) it is a decision not to impose a liability, penalty,
                                 or any kind of limitation, on a person; or
                           (ii) it is made under an enabling Act that establishes
15                               several categories of entitlement to a monetary or
                                 other benefit, and it determines a person to be in
                                 the most favourable of those categories;
                         or
                   (b) the decision is prescribed by the regulations for the
20                       purposes of this paragraph.
           (3)    If the persons who have to be given notice under subsection (1)
                  are not readily identifiable, the decision-maker is to take steps
                  that are reasonable in the circumstances to give the notice.
           (4)    A contravention of this section does not affect the validity of the
25                decision.
           (5)    If subsection (1) applies in a case in which a person has failed to
                  make a decision within the time limit for making the decision,
                  the person may, if the enabling Act permits, make the decision
                  instead of giving notice under subsection (1).




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     21.         Statement of reasons for decision
           (1)   If this subsection applies to a reviewable decision, a person who
                 has a right under an enabling Act or section 44(3) to have the
                 decision reviewed by the Tribunal may request the
5                decision-maker to provide the person with a written statement of
                 the reasons for the decision.
           (2)   Subsection (1) applies to any reviewable decision unless --
                  (a) the decision-maker has already given the person a
                        written statement containing the details described in
10                      subsection (5) (whether as part of the decision or
                        separately); or
                  (b) the enabling Act contains other provisions under which
                        the person has, will, could, or could have, become
                        entitled to a written statement of the reasons for the
15                      decision containing the details described in
                        subsection (5).
           (3)   A request under subsection (1) has to be made in writing and
                 can be made --
                   (a) at any time within the period of 28 days after the day on
20                      which the decision was made; or
                   (b) if section 20(1) applies, at any time before the expiration
                        of the period of 28 days after the day on which notice is
                        given as required under section 20(1).
           (4)   Subject to section 23, a decision-maker receiving a request
25               under subsection (1) is to comply with the request as soon as
                 practicable, and in any case within the period of 28 days after
                 the request is made.
           (5)   Subject to section 23, the decision-maker's written statement
                 has to contain --
30                 (a) the reasons for the decision; and




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                  (b)   any findings on material questions of fact that led to the
                        decision, referring to the evidence or other material on
                        which those findings were based.

     22.         Tribunal may order decision-maker to provide reasons
5          (1)   If, under section 21(1), a person requests a decision-maker to
                 provide the person with a written statement of the reasons for a
                 reviewable decision and, contrary to section 21(4), the
                 decision-maker fails to provide the statement, the person may
                 apply to the Tribunal for an order that the decision-maker
10               provide the statement to the person.
           (2)   The person is to give notice of the application to the
                 decision-maker within the time specified by the rules.
           (3)   If the Tribunal is satisfied that the person is entitled to be
                 provided with the statement, the Tribunal may order that the
15               decision-maker provide the statement to the person within the
                 time specified in the order.

     23.         Exceptions to what has to be provided
           (1)   A statement required by section 21 cannot include any protected
                 matter.
20         (2)   If the omission of protected matter under subsection (1) would
                 make the statement false or misleading then, instead of
                 providing the statement, the decision-maker is to inform the
                 person who requested the statement that it is not being provided
                 because it would be false or misleading for that reason.

25   24.         Provision of documents and material by decision-maker
                 If a proceeding for the review of a decision is commenced, the
                 decision-maker is to provide the following to the Tribunal in
                 accordance with the rules --
                   (a) a statement of the reasons for the decision;




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                  (b)   other documents and other material in the
                        decision-maker's possession or under the
                        decision-maker's control and relevant to the Tribunal's
                        review of the decision.

5                             Subdivision 3 -- The review

     25.         Effect of proceeding on reviewable decision
           (1)   The commencement of a proceeding for the review of a decision
                 does not affect the operation of the decision or prevent the
                 taking of action to implement the decision unless --
10                 (a) the enabling Act states otherwise; or
                   (b) the Tribunal makes an order under subsection (2).
           (2)   The Tribunal, on the application of a party or on its own
                 initiative, may make an order staying the operation of a decision
                 that is the subject of a proceeding for review.
15         (3)   The Tribunal's power to make an order under subsection (2) is
                 exercisable by --
                   (a) a legally qualified member; or
                   (b) the presiding member if the Tribunal as constituted for a
                         hearing does not consist of or include a legally qualified
20                       member.
           (4)   The Tribunal may make an order under subsection (2) only if it
                 considers that it is desirable to do so after taking into account --
                   (a) the interests of any persons whose interests may be
                        affected by the order;
25                 (b) any submission made by or on behalf of the
                        decision-maker; and
                   (c) the public interest.
           (5)   Subsection (4)(a) does not require the Tribunal to give any
                 person whose interests may be affected by the order an
30               opportunity to be heard.


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           (6)   In making an order under subsection (2), the Tribunal --
                   (a) may require any undertaking as to costs or damages that
                        it considers appropriate; and
                   (b) may make provision for the lifting of the order if
5                       specified conditions are met.
           (7)   The Tribunal may assess any costs or damages referred to in
                 subsection (6)(a) and any amount so assessed is a debt
                 recoverable in a court of competent jurisdiction.

     26.         Restriction on powers of decision-maker after review
10               commenced
                 After the commencement of a proceeding for the review of a
                 decision the decision-maker cannot --
                   (a) vary the decision; or
                   (b) set aside the decision and substitute its new decision,
15               unless --
                  (c)   that is permitted by the enabling Act;
                  (d)   the parties to the proceeding consent; or
                  (e)   the decision-maker is invited under section 31 to
                        reconsider the decision.

20   27.         Nature of the hearing
           (1)   The review of a reviewable decision is to be by way of a hearing
                 de novo, and it is not confined to matters that were before the
                 decision-maker but may involve the consideration of new
                 material whether or not it existed at the time the decision was
25               made.
           (2)   The purpose of the review is to produce the correct and
                 preferable decision at the time of the decision upon the review.
           (3)   The reasons for decision provided by the decision-maker, or any
                 grounds for review set out in the application, do not limit the



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                 Tribunal in conducting a proceeding for the review of a
                 decision.

     28.         Considering government policy
           (1)   The Minister responsible for the administration of the enabling
5                Act may certify in writing that there was, at the time of the
                 reviewable decision, a statement of policy that had been
                 published in the Gazette under a written law and applied to
                 decisions of that kind.
           (2)   If a certificate is given under subsection (1) and the
10               decision-maker states in the material provided to the Tribunal
                 under section 24 that the decision-maker had regard to the
                 statement of policy in making the decision, the Tribunal in
                 conducting the proceeding must have regard to the statement of
                 policy as in effect at the time of the review.
15         (3)   Subsection (2) does not apply to the extent that the statement of
                 policy is outside power.

     29.         Powers of Tribunal on review
           (1)   The Tribunal has, when dealing with a matter in the exercise of
                 its review jurisdiction, functions and discretions corresponding
20               to those exercisable by the decision-maker in making the
                 reviewable decision.
           (2)   Subsection (1) does not limit the powers given by this Act or the
                 enabling Act to the Tribunal.
           (3)   The Tribunal may --
25                (a) affirm the decision that is being reviewed;
                  (b) vary the decision that is being reviewed; or
                  (c) set aside the decision that is being reviewed and --
                          (i) substitute its own decision; or
                         (ii) send the matter back to the decision-maker for
30                             reconsideration in accordance with any


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                                directions or recommendations that the Tribunal
                                considers appropriate,
                 and, in any case, may make any order the Tribunal considers
                 appropriate.
5          (4)   The fact that a decision is made on reconsideration as required
                 under subsection (3)(c)(ii), does not prevent the decision from
                 being open to review by the Tribunal.
           (5)   The decision-maker's decision as affirmed or varied by the
                 Tribunal or a decision that the Tribunal substitutes for the
10               decision-maker's decision --
                   (a) is to be regarded as, and given effect as, a decision of
                        the decision-maker; and
                   (b) unless the enabling Act states otherwise or the Tribunal
                        orders otherwise, is to be regarded as having effect, or
15                      having had effect, from the time when the decision
                        reviewed would have, or would have had, effect.
           (6)   Without limiting subsection (5)(a), the decision-maker has
                 power to do anything necessary to implement the Tribunal's
                 decision.
20         (7)   Despite subsection (5)(a), the decision as affirmed, varied, or
                 substituted is not again open to review by the Tribunal as a
                 decision of the decision-maker.
           (8)   Subsection (5)(a) does not affect an appeal under Part 5 against
                 the Tribunal's decision.

25   30.         Decision-maker to assist Tribunal
                 In a proceeding for the review of a reviewable decision, the best
                 endeavours of the decision-maker are to be used to assist the
                 Tribunal to make its decision on the review.




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     31.         Tribunal may invite decision-maker to reconsider
           (1)   At any stage of a proceeding for the review of a reviewable
                 decision, the Tribunal may invite the decision-maker to
                 reconsider the decision.
5          (2)   Upon being invited by the Tribunal to reconsider the reviewable
                 decision, the decision-maker may --
                   (a) affirm the decision;
                   (b) vary the decision; or
                   (c) set aside the decision and substitute its new decision.
10         (3)   If the decision-maker varies the decision or sets it aside and
                 substitutes a new decision, unless the proceeding for a review is
                 withdrawn it is taken to be for the review of the decision as
                 varied or the substituted decision.




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                       Part 4 -- Tribunal's procedures
                              Division 1 -- Introduction
     32.         Practice and procedure, generally
           (1)   The Tribunal is bound by the rules of natural justice except to
5                the extent that this Act or the enabling Act authorises, whether
                 expressly or by implication, a departure from those rules.
           (2)   The Evidence Act 1906 does not apply to the Tribunal's
                 proceedings and the Tribunal --
                   (a) is not bound by the rules of evidence or any practices or
10                      procedures applicable to courts of record, except to the
                        extent that it adopts those rules, practices or procedures
                        or the regulations or rules make them apply; and
                   (b) is to act according to equity, good conscience and the
                        substantial merits of the case without regard to
15                      technicalities and legal forms.
           (3)   Without limiting subsection (2), the Tribunal may admit into
                 evidence the contents of any document despite non-compliance
                 with any time limit or other requirement specified in the rules in
                 relation to that document or service of it.
20         (4)   The Tribunal may inform itself on any matter as it sees fit.
           (5)   To the extent that the practice and procedure of the Tribunal is
                 not prescribed by or under this Act or the enabling Act, it is to
                 be as the Tribunal determines.
           (6)   The Tribunal is to take measures that are reasonably
25               practicable --
                   (a) to ensure that the parties to the proceeding before it
                         understand the nature of the assertions made in the
                         proceeding and the legal implications of those
                         assertions;



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                (b)   to explain to the parties, if requested to do so, any aspect
                      of the procedure of the Tribunal, or any decision or
                      ruling made by the Tribunal, that relates to the
                      proceeding; and
5               (c)   to ensure that the parties have the opportunity in the
                      proceeding --
                         (i) to call or give evidence;
                        (ii) to examine, cross-examine or re-examine
                              witnesses; and
10                     (iii) to be heard or otherwise have their submissions
                              considered.
        (7)    The Tribunal --
                (a) is to ensure that all relevant material is disclosed to the
                      Tribunal so as to enable it to determine all of the
15                    relevant facts in issue in a proceeding;
                (b) may require evidence or argument to be presented in
                      writing and decide on the matters on which it will hear
                      oral evidence or argument;
                (c) may limit the time available for presenting the
20                    respective cases of parties before it at a hearing to an
                      extent that it considers would not impede the fair and
                      adequate presentation of the cases;
                (d) may require a document to be served outside the State;
                      and
25              (e) may adjourn a proceeding to any time and place
                      (including for the purpose of enabling the parties to
                      negotiate a settlement or for the purpose of
                      reconsideration of a decision by the decision-maker
                      under section 31).
30      (8)    The Tribunal's powers under subsection (7) are exercisable
               by --
                 (a) a legally qualified member; or



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                  (b)    the presiding member if the Tribunal as constituted for a
                         hearing does not consist of or include a legally qualified
                         member.

     33.         Practice notes
5          (1)   The Rules Committee may issue practice notes about the
                 practice and procedure of the Tribunal.
           (2)   The Rules Committee is to give the Minister a copy of each
                 practice note it issues as soon as practicable after issuing it.
           (3)   A practice note is not a rule and does not form part of the rules.

10   34.         Directions
           (1)   The Tribunal may give directions at any time in a proceeding
                 and do whatever is necessary for the speedy and fair conduct of
                 the proceeding.
           (2)   The Tribunal's power to give directions is exercisable by --
15                (a) a legally qualified member; or
                  (b) the presiding member if the Tribunal as constituted for a
                        hearing does not consist of or include a legally qualified
                        member.
           (3)   The Tribunal may give directions on its own initiative.
20         (4)   A directions hearing conducted or presided over by a legally
                 qualified member may be held for the purposes of this section
                 before the hearing of the proceeding.
           (5)   The Tribunal may give a direction requiring a party to produce a
                 document or other material, or provide information, to the
25               Tribunal or another party despite any rule of law relating to
                 privilege (other than legal professional privilege) or the public
                 interest in relation to the production of documents.
           (6)   Without limiting subsection (3), a direction referred to in
                 subsection (5) can be given on the application of a party.


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           (7)   However if any document is or contains protected matter, the
                 Tribunal cannot direct a party to produce it to another party.

     35.         Obtaining information from third parties
           (1)   On the application of a party to a proceeding, the Tribunal may
5                order that a person --
                   (a) who is not a party to the proceeding; and
                   (b) who has, or is likely to have, in the person's possession
                         or under the person's control a document or other
                         material that is relevant to the proceeding,
10               produce the document or material to the Tribunal or the party
                 within the time specified in the order.
           (2)   The Tribunal may order a person to produce a document or
                 other material despite any rule of law relating to privilege (other
                 than legal professional privilege) or the public interest in
15               relation to the production of documents.
           (3)   However if any document is or contains protected matter, the
                 Tribunal cannot order a person to produce it to a party.

     36.         Parties
           (1)   A person is a party to a proceeding before the Tribunal if the
20               person is --
                   (a) the applicant;
                   (b) a person joined under section 38 as a party to the
                         proceeding;
                   (c) a person intervening in the proceeding; or
25                 (d) specified by this Act or the enabling Act to be a party to
                         the proceeding.
           (2)   If the proceeding is in the Tribunal's review jurisdiction, the
                 decision-maker is also a party.




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           (3)   In a proceeding to which a decision-maker is a party, the official
                 description rather than the personal name of the decision-maker
                 is to be used so far as is practicable.

     37.         Intervening in proceeding
5          (1)   The Attorney General may, on behalf of the State, intervene in a
                 proceeding of the Tribunal at any time.
           (2)   The Commissioner for Fair Trading referred to in section 15 of
                 the Consumer Affairs Act 1971 may, on behalf of the State,
                 intervene at any time in a proceeding if the Minister responsible
10               for the administration of that Act is responsible for the
                 administration of the enabling Act.
           (3)   The Tribunal may give leave at any time for a person to
                 intervene in a proceeding on conditions, if any, that the Tribunal
                 thinks fit.

15   38.         Joining as a party
           (1)   The Tribunal may order that a person be joined as a party to a
                 proceeding if the Tribunal considers that --
                   (a) the person ought to be bound by, or have the benefit of,
                        a decision of the Tribunal in the proceeding;
20                 (b) the person's interests are affected by the proceeding; or
                   (c) for any other reason it is desirable that the person be
                        joined as a party.
           (2)   The Tribunal may make an order under subsection (1) on the
                 application of any person or on its own initiative.

25   39.         Representation
           (1)   At the hearing of a proceeding before the Tribunal, or a
                 directions hearing or other procedural hearing or a compulsory
                 conference or mediation, a party to the proceeding may appear
                 in person or may be represented by another person, but a party



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                 cannot be represented by a person other than a legal practitioner
                 unless --
                   (a) the party is a body corporate and the person is a director,
                        secretary, or other officer of the body corporate;
5                  (b) the party is a public sector body as defined in
                        section 3(1) of the Public Sector Management Act 1994
                        and the person is a public sector employee authorised by
                        the party to represent it;
                   (c) the party is a party in the course of or because of the
10                      performance, or purported performance, of his or her
                        duties as a public sector employee and the person is
                        another public sector employee authorised by the party
                        to represent him or her;
                   (d) the Tribunal agrees to that person representing the party,
15                      and any conditions imposed by the Tribunal are
                        satisfied; or
                   (e) the regulations or the rules authorise it.
           (2)   This section does not authorise a person who could not
                 otherwise lawfully demand or receive any fee or reward for
20               representing a party to demand or receive any fee or reward.
           (3)   A person who has been struck off the roll of practitioners of the
                 Supreme Court cannot represent a party.
           (4)   The regulations or the rules may prevent specified persons, or
                 persons of a specified class, from representing a party.

25   40.         Tribunal may appoint representative or guardian
           (1)   If a party is unrepresented, the Tribunal may appoint a person to
                 represent the party.
           (2)   If a child is a party or potential party to a proceeding or
                 proposed proceeding, the Tribunal may appoint a litigation
30               guardian in accordance with the rules to conduct the proceeding
                 on the child's behalf.


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     41.         Interpreters
                 Unless the Tribunal directs otherwise, a party or a party's
                 representative may be assisted in the course of a proceeding by
                 an interpreter or another person necessary or desirable to make
5                the proceeding intelligible to that party.

                       Division 2 -- Preliminary procedures
     42.         Commencing proceeding
           (1)   A person applying to the Tribunal for review, or otherwise
                 bringing a matter before the Tribunal by referral or other means,
10               has to do so in accordance with this Act except to the extent that
                 the enabling Act states otherwise.
           (2)   The executive officer is to ensure that a person wishing to
                 commence a proceeding before the Tribunal is given reasonable
                 assistance that the person seeks.
15         (3)   A proceeding before the Tribunal commences when the
                 application is accepted by the executive officer.

     43.         Fee for commencing proceeding
           (1)   The rules may require the payment of a fee for the
                 commencement of a proceeding and may provide for the stay of
20               the proceeding until the fee is paid or payment is waived or
                 postponed under the rules.
           (2)   The rules may authorise the waiver or reduction of the fee that
                 would otherwise be payable.

     44.         Rejecting an application or accepting an application
25               conditionally
           (1)   Unless otherwise stated in the rules, the executive officer may
                 reject an application on the ground that --
                   (a) it is made by a person not entitled to make it;



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                  (b)    it is made after the time limit before which the
                         application is required to be made; or
                   (c)   it does not otherwise comply with this Act or the
                         enabling Act.
5          (2)   If the executive officer accepts an application, the executive
                 officer may impose conditions of a kind specified by the rules
                 on the acceptance.
           (3)   If, under subsection (1) or (2), the executive officer rejects an
                 application or accepts an application on conditions --
10                  (a) the applicant may request the executive officer to refer
                         to the Tribunal for a review of the decision to reject the
                         application or accept the application on conditions or a
                         review of any condition imposed; and
                   (b) the executive officer is to refer the decision or condition
15                       to the Tribunal for a review if requested under
                         paragraph (a) to do so.
           (4)   If the executive officer believes that an application could be
                 rejected under subsection (1), the executive officer may, instead
                 of deciding whether or not to reject the application, refer the
20               question to the Tribunal.
           (5)   An appeal cannot be made under Part 5 from a decision of the
                 Tribunal on a matter referred to it under subsection (3) or (4).
           (6)   No fee is payable for requesting a matter to be referred under
                 subsection (3).

25   45.         Who has to be given a copy of an application
           (1)   When an application is accepted by the executive officer the
                 applicant is to give a copy of the application to --
                   (a) each other party;
                   (b) any other person entitled under this Act or the enabling
30                      Act to a copy of, or notice of, the application; and



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                   (c)   any person to whom the applicant is directed by the
                         Tribunal to give a copy of the application.
           (2)   Subsection (1) does not require the applicant to give a copy
                 of the application to a person mentioned in subsection (1)
5                (a "notifiable person") if --
                   (a) the executive officer has undertaken to give a copy of
                         the application to the notifiable person; or
                   (b) under subsection (3) the Tribunal dispenses with the
                         requirement to give a copy of the application to the
10                       notifiable person.
           (3)   The Tribunal may make an order dispensing with the
                 requirement to give a copy of an application to a notifiable
                 person specified in the order if satisfied --
                   (a) that the applicant has made all reasonable attempts to
15                      give a copy of the application to the notifiable person
                        but has been unsuccessful; or
                   (b) that the making and hearing of the application without
                        notice to the notifiable person would not cause injustice.
           (4)   The Tribunal's power under subsection (3) is exercisable only
20               by a legally qualified member.
           (5)   The Tribunal may make an order under subsection (3) on the
                 application of the applicant or on its own initiative.
           (6)   The rules may provide for the manner in which and time within
                 which subsection (1) is to be complied with.

25   46.         Dismissing proceeding on withdrawal or for want of
                 prosecution
           (1)   If the Tribunal gives leave, the applicant may withdraw or agree
                 to the withdrawal of a proceeding or a part of a proceeding.
           (2)   The Tribunal may make an order dismissing or striking out all,
30               or any part, of a proceeding before it if the applicant withdraws
                 or agrees to the withdrawal of the proceeding or that part of it.

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           (3)   At any time, the Tribunal may make an order dismissing or
                 striking out all, or any part, of a proceeding before it for want of
                 prosecution.
           (4)   The Tribunal's power to make an order under subsection (3) is
5                exercisable only by a legally qualified member.
           (5)   The Tribunal may make an order under this section on the
                 application of a party or on its own initiative.

     47.         Unjustified proceedings
           (1)   This section applies if the Tribunal believes that a
10               proceeding --
                   (a) is frivolous, vexatious, misconceived or lacking in
                         substance;
                  (b)    is being used for an improper purpose; or
                  (c)    is otherwise an abuse of process.
15         (2)   If this section applies, the Tribunal may order that the
                 proceeding be dismissed or struck out and make any appropriate
                 orders.
           (3)   The Tribunal's powers to act under subsection (2) are
                 exercisable only by a legally qualified member.
20         (4)   The Tribunal may act under subsection (2) on the application of
                 a party or on its own initiative.

     48.         Conduct of proceeding causing disadvantage
           (1)   This section applies if the Tribunal believes that a party to a
                 proceeding is conducting the proceeding in a way that
25               unnecessarily disadvantages another party to the proceeding by
                 conduct such as --
                   (a) failing to comply with an order or direction of the
                         Tribunal without reasonable excuse;
                   (b) failing to comply with this Act or the enabling Act;



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                  (c)    asking for an adjournment the need for which is
                         attributable to a failure described in paragraph (a) or (b);
                  (d)    attempting to deceive another party or the Tribunal;
                  (e)    vexatiously conducting the proceeding; or
5                  (f)   failing to attend any compulsory conference or
                         mediation in the proceeding, or attend a hearing of the
                         proceeding.
           (2)   If this section applies, the Tribunal may --
                   (a) if the party causing the disadvantage is the applicant,
10                        order that the proceeding be dismissed or struck out;
                   (b) if the party causing the disadvantage is not the
                          applicant --
                             (i) determine the proceeding in favour of the
                                  applicant and make any appropriate orders; or
15                          (ii) order that the party causing the disadvantage be
                                  struck out of the proceeding.
           (3)   The Tribunal's powers to act under subsection (2) are
                 exercisable only by a legally qualified member.
           (4)   The Tribunal may act under subsection (2) on the application of
20               the applicant or on its own initiative.

     49.         Restriction on new application
                 If a proceeding is dismissed or struck out under section 46, 47
                 or 48, another proceeding of the same kind in relation to the
                 same matter cannot be commenced before the Tribunal without
25               the leave of a judicial member.

     50.         More appropriate forum
           (1)   The Tribunal may, at any time, make an order striking out all, or
                 any part, of a proceeding if it considers that the matter, or any
                 aspect of it, would be more appropriately dealt with by another
30               tribunal, a court, or any other person.


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           (2)   The Tribunal's power to make an order under subsection (1) is
                 exercisable only by a judicial member.
           (3)   If the Tribunal makes an order under subsection (1), it may refer
                 the matter, or any aspect of it, to the relevant tribunal, court, or
5                person if it considers it appropriate to do so.
           (4)   The Tribunal may make an order under subsection (1) on the
                 application of a party or on its own initiative.

     51.         Consolidation of proceedings
           (1)   The Tribunal may direct that 2 or more proceedings that
10               concern the same or related facts and circumstances --
                   (a) be consolidated into the one proceeding; or
                   (b) remain as separate proceedings but be heard and
                        determined together.
           (2)   The Tribunal's power to give a direction under subsection (1) is
15               exercisable by a sitting member for either of the proceedings
                 who is a legally qualified member.
           (3)   If proceedings are consolidated, evidence given in the
                 consolidated proceeding is admissible in relation to matters
                 involved in either of the proceedings that were consolidated.

20   52.         Compulsory conference
           (1)   At an initial directions hearing or at any other time before the
                 hearing of a proceeding, the Tribunal may require parties to the
                 proceeding to attend a compulsory conference.
           (2)   The President is to allocate a member of the Tribunal to preside
25               at a compulsory conference.
           (3)   The purpose of a compulsory conference is to identify and
                 clarify the issues in the proceeding and promote the resolution
                 of the matters by a settlement between the parties.
           (4)   Unless the Tribunal member presiding at a compulsory
30               conference directs otherwise, it is to be held in private.

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           (5)   Except to the extent that the rules may specify the procedure for
                 a compulsory conference, the Tribunal member presiding at a
                 compulsory conference may determine the procedure for the
                 conference.
5          (6)   If a settlement appears to be reached at a compulsory
                 conference, the Tribunal member presiding may reduce the
                 terms of settlement to writing and make any orders necessary to
                 give effect to the settlement.
           (7)   The Tribunal member who presided at a compulsory conference
10               is not eligible to constitute, or be one of the members
                 constituting, the Tribunal for the purpose of otherwise dealing
                 with the proceeding.

     53.         Failure to attend compulsory conference
                 If a party does not attend a properly convened compulsory
15               conference --
                   (a) the conference may proceed at the appointed time in the
                          party's absence; and
                   (b) if a member of the Tribunal is presiding and all the
                          parties present agree, the Tribunal, constituted by that
20                        member, may --
                            (i) determine the proceeding adversely to the absent
                                  party and make any appropriate orders; or
                           (ii) direct that the absent party be struck out of the
                                  proceeding.

25   54.         Mediation
           (1)   If a directions hearing has been held under section 34 or a
                 compulsory conference has been held under section 52, the
                 Tribunal may, at any later stage of the proceeding, refer the
                 matter, or any aspect of it, for mediation by a person specified
30               as a mediator by the Tribunal.




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           (2)   The person specified as a mediator has to be a person who has
                 been approved by the President as a person who may act as a
                 mediator.
           (3)   The referral may be made with or without the consent of the
5                parties.
           (4)   The purpose of a mediation is to achieve the resolution of the
                 matters by a settlement between the parties.
           (5)   The rules may specify how notice of the mediation is to be
                 given, how the mediation is to be conducted, and the fees to be
10               paid by a party for the mediation.
           (6)   Unless the mediator directs otherwise, the mediation is to be
                 held in private.
           (7)   Except to the extent that the rules may specify the procedure for
                 a mediation, the mediator may determine the procedure for the
15               mediation.
           (8)   If the mediator is a Tribunal member and a settlement appears to
                 be reached at the mediation, the mediator may reduce the terms
                 of settlement to writing and make any orders necessary to give
                 effect to the settlement.
20         (9)   If a settlement is not reached at the mediation or the mediator is
                 not a Tribunal member, the mediator is to report on the outcome
                 of the mediation to the Tribunal as constituted when it made the
                 referral.
       (10)      If the mediator is a Tribunal member, the member cannot take
25               any further part in dealing with the proceeding after the
                 mediation unless all parties agree to him or her doing so.

     55.         Evidence of certain things inadmissible
                 Evidence of anything said or done in the course of a compulsory
                 conference or mediation is not admissible at any later stage of
30               the proceeding unless --
                   (a) all parties agree to the admission of the evidence;

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                  (b)      it is evidence of directions given or orders made at a
                           compulsory conference or mediation or the reasons for
                           those directions or orders; or
                   (c)     it is relevant to --
5                             (i) a proceeding for an offence in relation to the
                                    giving of false or misleading information;
                             (ii) a proceeding under section 99; or
                            (iii) a proceeding in relation to an order made under
                                    section 53(b)(i).

10   56.         Settlement
           (1)   If the parties agree in writing to settle a proceeding that is
                 before the Tribunal, the Tribunal may make any orders
                 necessary to give effect to the settlement.
           (2)   The Tribunal cannot make an order under subsection (1) unless
15               it is satisfied that it would have the power to make a decision in
                 the terms of the agreed settlement or in terms that are consistent
                 with the terms of the agreed settlement.
           (3)   The Tribunal may, with the consent of the parties, vary the
                 terms of an order under subsection (1) if to do so would reflect
20               the intention of the agreement.
           (4)   Subsections (2) and (3) also apply to an order under
                 section 52(6) or 54(8).

                         Division 3 -- Proceedings and hearings
     57.         Presiding member
25         (1)   If, for dealing with a particular matter, the Tribunal is
                 constituted by 2 or more members, the most senior of them is to
                 preside at a proceeding of the Tribunal.




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           (2)   The seniority of members of the Tribunal depends on which of
                 the offices held takes precedence and, if that does not determine
                 a member's seniority, the matter is to be resolved by the
                 President.
5          (3)   The order of precedence of offices is --
                  (a) President;
                  (b) Deputy President;
                  (c) senior member;
                  (d) ordinary member.

10   58.         Decision of Tribunal if 2 or more sitting members
                 If the Tribunal is constituted by 2 or more sitting members, a
                 question they are required to decide is resolved, unless
                 section Error! Reference source not found. applies, according
                 to the opinion of the majority of them but, if their opinions on
15               the question are equally divided, the question is to be resolved
                 according to the opinion of the presiding member.

     59.         Deciding questions of law
           (1)   In this section --
                 "question of law" means a question of law arising in a
20                    proceeding for decision by the Tribunal and includes a
                      question of mixed law and fact.
           (2)   Subject to subsection (10), a question of law is decided by the
                 Tribunal according to the opinion of the presiding member if
                 that member is a legally qualified member.
25         (3)   If the presiding member is not a legally qualified member but
                 there is at least one sitting member who is a legally qualified
                 member, a question of law is decided by the Tribunal according
                 to the opinion of that legally qualified member, or according to
                 the unanimous opinion of those legally qualified members if
30               there are 2 or more of them.



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                                     Proceedings and hearings      Division 3
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      (4)   The presiding member may choose to refer a question of law to
            the President whether or not the question has been decided
            under subsection (2) or (3).
      (5)   If subsection (3) applies to a question of law, the presiding
5           member is to refer the question to the President if --
              (a) the presiding member is requested to do so by a sitting
                    member who is a legally qualified member (whether or
                    not the question has been decided under subsection (3));
                    or
10            (b) for any reason the question has not been decided under
                    subsection (3).
      (6)   Subsection (2) no longer applies to a question of law if the
            question is referred to the President under subsection (4).
      (7)   Subsection (3) no longer applies to a question of law if the
15          question is referred to the President under subsection (4) or (5).
      (8)   If no sitting member is a legally qualified member, the presiding
            member is to refer a question of law to the President.
      (9)   Subsection (10) applies to the resolution of a question of law if
            the presiding member is the President or the question is referred
20          to the President under subsection (4), (5) or (8).
     (10)   If this subsection applies to a question of law --
              (a) the question is decided by the Tribunal according to the
                     opinion of the President or, if the President gives the
                     question to another legally qualified member of the
25                   Tribunal for resolution, according to the opinion of that
                     other member; or
              (b) the President may refer the question to the Supreme
                     Court for decision by the Supreme Court as long as it is
                     not a question of mixed law and fact.




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     60.         Electronic hearings and proceedings without hearings
           (1)   If the Tribunal thinks it appropriate, it may allow the parties and
                 their representatives and any witnesses (or one or more of them)
                 to participate in a hearing of a proceeding by means of
5                telephones, video links, or any other system or method of
                 communication.
           (2)   If the Tribunal thinks it appropriate, it may conduct all or part of
                 a proceeding entirely on the basis of documents without the
                 parties or their representatives or any witnesses attending or
10               participating in a hearing.
           (3)   If the Tribunal conducts a proceeding in accordance with this
                 section, the Tribunal is to take steps to ensure that the public has
                 access to, or is precluded from access to, matters disclosed in
                 the proceeding to the same extent as if the proceeding had been
15               heard before the Tribunal with the attendance in person of all
                 persons involved in the proceeding.
           (4)   Provisions of this Act applying to hearings (other than
                 section 61) apply with any necessary modifications in relation to
                 a proceeding conducted in accordance with subsection (2).

20   61.         Public hearings
           (1)   Unless another provision of this Act provides otherwise,
                 hearings of the Tribunal are to be held in public.
           (2)   On the application of a party or on its own initiative the
                 Tribunal may, in the circumstances described in subsection (4),
25               order that a hearing or any part of it be held in private.
           (3)   The Tribunal's power to make an order under subsection (2) is
                 exercisable by --
                   (a) a legally qualified member; or
                   (b) the presiding member if the Tribunal as constituted for a
30                       hearing does not consist of or include a legally qualified
                         member.


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           (4)   The Tribunal may make an order under subsection (2) if the
                 Tribunal considers it is necessary to do so --
                  (a) to avoid endangering the national or international
                        security of Western Australia or Australia;
5                 (b) to avoid damaging inter-governmental relations;
                  (c) to avoid prejudicing the administration of justice;
                  (d) to avoid endangering the physical or mental health or
                        safety of any person;
                  (e) to avoid offending public decency or morality;
10                 (f) to avoid the publication of confidential information or
                        information the publication of which would be contrary
                        to the public interest; or
                  (g) for any other reason in the interests of justice.

     62.         Publication of information from or about a proceeding
15         (1)   This section applies to --
                  (a) any evidence given before the Tribunal;
                  (b) the contents of any documents produced to the Tribunal;
                         and
                  (c) any information that might enable a person who has
20                       appeared before the Tribunal to be identified.
           (2)   Anything to which this section applies that is protected matter is
                 not to be published.
           (3)   On the application of a party or on its own initiative the
                 Tribunal may, in the circumstances described in section 61(4),
25               order that anything, or any particular thing, to which this section
                 applies is not to be published except in the manner and to the
                 persons, if any, specified by the Tribunal.
           (4)   The Tribunal's power to make an order under subsection (3) is
                 exercisable by --
30                 (a) a legally qualified member; or


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     s. 63



                  (b)   the presiding member if the Tribunal as constituted for a
                        hearing does not consist of or include a legally qualified
                        member.

     63.         Notice of hearings
5          (1)   The executive officer is to give notice, in accordance with the
                 rules, of the time and place for the hearing of a proceeding to --
                   (a) each party to the proceeding;
                   (b) each other person entitled to notice of the proceeding or
                         hearing under this Act or the enabling Act; and
10                 (c) any other person that the Tribunal directs be given
                         notice of the hearing.
           (2)   If a person, including a party, to whom notice has been given in
                 accordance with the rules fails to attend, the hearing may be
                 held in the absence of that person.

15   64.         Tribunal may call on expert or professional assistance
           (1)   The Tribunal may appoint a legal practitioner, or any other
                 person with relevant knowledge or experience, to assist the
                 Tribunal in relation to a proceeding or proceedings before the
                 Tribunal whether by providing advice or professional services
20               or by giving evidence.
           (2)   The Tribunal may order a party to pay or contribute to the
                 Tribunal's costs of obtaining the assistance of a person
                 appointed under subsection (1).

     65.         Special referees
25         (1)   The Tribunal may refer any question arising in a proceeding to a
                 special referee for the special referee --
                   (a) to decide the question; or
                   (b) to give his or her opinion with respect to it.
           (2)   The Tribunal may order a party to pay or contribute to the
30               Tribunal's costs of obtaining the services of a person appointed
                 under subsection (1).

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     66.         Summoning witness
           (1)   The Tribunal may, by summons signed on behalf of the
                 Tribunal by the executive officer, require --
                  (a) the attendance before the Tribunal of any person;
5                 (b) the production before the Tribunal of any document or
                        other material.
           (2)   A summons under subsection (1)(a) may be issued on the
                 Tribunal's initiative or at the request of a party.
           (3)   A summons under subsection (1)(b) may be issued on the
10               Tribunal's initiative.
           (4)   A summons under subsection (1)(b) may require a person to
                 produce a document or other material despite any rule of law
                 relating to privilege (other than legal professional privilege) or
                 the public interest in relation to the production of documents.
15         (5)   A person who attends in answer to a summons is entitled to be
                 paid the fees and allowances prescribed in the rules or, if no fees
                 and allowances are prescribed, the fees and allowances (if any)
                 determined by the Tribunal.
           (6)   The Tribunal may determine --
20                (a) by which party; or
                  (b) by which parties and in which proportions,
                 the fees and allowances are to be paid.

     67.         Powers relating to witnesses
           (1)   In any proceeding before the Tribunal, the Tribunal may --
25                 (a) on its own initiative, call any person to give evidence;
                   (b) examine any witness on oath or affirmation, or by use of
                         a statutory declaration;




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                   (c)   examine or cross-examine any witness to such extent as
                         the Tribunal thinks proper in order to elicit information
                         relevant to the exercise of the functions of the Tribunal
                         in the proceeding; and
5                 (d)    compel any witness including a witness whose conduct
                         is subject to an inquiry (whether or not the witness has
                         been summoned to appear) to answer questions which
                         the Tribunal considers to be relevant in the proceeding.
           (2)   Nothing in subsection (1) enables the Tribunal to compel a
10               witness to answer a question if the witness --
                  (a) is excused by section 69(1) from answering the
                        question; or
                  (b) has a reasonable excuse (other than on the ground
                        mentioned in section 68(1)) for refusing to answer the
15                      question.

     68.         Privilege against self-incrimination
           (1)   A person is not excused from complying with a requirement
                 under this Act to answer a question or produce a document or
                 other material in a proceeding on the ground that the answer or
20               the production of the document or other material might
                 incriminate the person or render the person liable to a penalty.
           (2)   However neither --
                  (a) an answer given by the person that was given to comply
                      with the requirement; nor
25                (b) the fact that a document or other material produced by
                      the person to comply with the requirement was
                      produced,
                 is admissible in evidence in any criminal proceedings against
                 the person other than proceedings for perjury or for an offence
30               against this Act arising out of the false or misleading nature of
                 an answer.



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     69.         Other claims of privilege
           (1)   Unless it would be contrary to section 68 or a direction under
                 section 34(5), a person is excused from answering a question or
                 producing a document or other material in a proceeding if the
5                person could not be compelled to answer the question or
                 produce the document or material in proceedings in the
                 Supreme Court.
           (2)   The Tribunal may require a person to produce a document or
                 other material to it for the purpose of determining whether or
10               not it is a document or material that the Tribunal has power to
                 compel the person to produce.

     70.         Oaths and affirmations
                 A member of the Tribunal may administer an oath or take an
                 affirmation for the purposes of this Act.

15   71.         Authorising person to take evidence
           (1)   The Tribunal may authorise, in writing, a person (whether or not
                 a member of the Tribunal) to take evidence on behalf of the
                 Tribunal for the purposes of any proceeding.
           (2)   The Tribunal's power under subsection (1) to authorise the
20               taking of evidence is exercisable only by a judicial member.
           (3)   The Tribunal may authorise evidence to be taken under this
                 section outside Western Australia.
           (4)   The Tribunal may give directions as to the taking of evidence
                 under this section.
25         (5)   If a person other than a member of the Tribunal is authorised to
                 take evidence the person has all the powers of a member of the
                 Tribunal in relation to the taking of evidence.
           (6)   Evidence taken under this section --
                  (a) is to be regarded as having been given to the Tribunal;
30                      and

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                  (b)    if taken outside Western Australia, is to be regarded as
                         having been given in Western Australia.

     72.         Dealing with things produced
                 The Tribunal may inspect any document or other material
5                produced before it, and retain it for as long as it reasonably
                 thinks fit, and make copies of any document or any of its
                 contents.

                    Division 4 -- Decisions made by Tribunal
     73.         Conditional and ancillary orders and directions
10         (1)   A power of the Tribunal to make an order or give a direction
                 (the "primary power") includes the power to make the order
                 subject to conditions and the power to make any ancillary order
                 or direction the Tribunal considers appropriate for achieving the
                 purpose for which it may exercise the primary power.
15         (2)   An ancillary order may provide for a decision of the Tribunal in
                 relation to a reviewable decision to be implemented by a person
                 who is not the original decision-maker whether or not that
                 person is a party to the proceeding.

     74.         Form of decision
20               A decision of the Tribunal has to be given in writing and
                 authenticated in accordance with the rules if --
                   (a) the decision is a final decision;
                   (b) the Tribunal reserved the decision;
                   (c) the rules state that the decision has to be given in
25                       writing; or
                   (d) a party requests that the decision be given in writing.




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     75.         To whom copy of written decision has to be given
           (1)   The Tribunal is to give a copy of any written decision it gives in
                 a proceeding to --
                   (a) each party; and
5                  (b) each other person who is, under this Act or the enabling
                        Act, entitled to notice of the proceeding or the relevant
                        hearing, or of the decision.
           (2)   The Tribunal's obligation under subsection (1) to give a person
                 a copy of a written decision is satisfied if the Tribunal orders a
10               party to give the person a copy of the written decision.

     76.         Time limit for reserved decision
                 If the Tribunal reserves its decision in any proceeding, whether
                 or not it is a final decision, it is to give its decision and the
                 reasons for the decision within the period of 90 days after the
15               day on which it reserved its decision or within an extension of
                 that period given by the President.

     77.         Reasons for final decision
           (1)   The Tribunal is to give its reasons for a final decision.
           (2)   Reasons that the Tribunal gives for a final decision have to
20               include the Tribunal's findings on material questions of fact,
                 referring to the evidence or other material on which those
                 findings are based.

     78.         Written reasons may be requested
           (1)   If the Tribunal makes a decision, whether or not a final decision,
25               without having reserved its decision and does not give its
                 reasons for the decision in writing, a party may, within the
                 period of 28 days after the day on which the decision is given,
                 request that the Tribunal give its reasons in writing.




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           (2)   The Tribunal is to give written reasons that a party requests
                 under subsection (1) within the period of 90 days after the day
                 on which it receives the request or within an extension of that
                 period given by the President.

5    79.         Written decision or reasons using transcript
                 A written transcript of the part of the proceeding in which a
                 decision is given orally or reasons are given orally is sufficient
                 for a provision of this Act that requires the decision or reasons
                 to be in writing.

10   80.         Validity of decision
                 A failure of the Tribunal to comply with a requirement of this
                 Division does not affect the validity of a decision.

     81.         When decision has effect
           (1)   A decision of the Tribunal comes into effect immediately after it
15               is given, or at such later time as is specified in it, except as
                 otherwise provided in section 29(5).
           (2)   Subsection (1) does not prevent a stay of the effect of the
                 decision from being given under section 105.

     82.         Correcting mistakes
20         (1)   The Tribunal may correct a decision it gives or a statement of
                 the reasons it has given for its decision to the extent necessary
                 to rectify --
                   (a) a clerical mistake;
                   (b) an error arising from an accidental slip or omission;
25                 (c) a material miscalculation of figures or a material
                          mistake in the description of any person, thing, or matter
                          referred to in the decision; or
                   (d) a defect of form.




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           (2)   The correction may be made --
                  (a) on a party's application made in accordance with the
                        rules; or
                  (b) on the Tribunal's own initiative.

5    83.         Tribunal may review its decision if person was absent
           (1)   In this section --
                 "relevant hearing", in relation to a decision of the Tribunal,
                      means a hearing at which the decision was made or which
                      preceded the making of the decision.
10         (2)   A person in respect of whom the Tribunal makes a decision may
                 apply to the Tribunal for a review of the decision if the person
                 did not appear and was not represented at a relevant hearing.
           (3)   The application has to be made within the time limits specified
                 by, and otherwise in accordance with, the rules.
15         (4)   The rules may limit the number of applications that can be made
                 under this section in respect of the same matter without the
                 leave of the Tribunal being obtained.
           (5)   If on hearing the application the Tribunal is satisfied that the
                 applicant had a reasonable excuse for not attending or being
20               represented at the relevant hearing, the Tribunal is to review the
                 decision and may revoke or vary it if the Tribunal considers it
                 appropriate to do so.
           (6)   For the hearing of the application the Tribunal is to be
                 constituted under section 11 by the members by whom it was
25               constituted when it made the decision, if that is practicable.
           (7)   A review under this section --
                  (a) is part of the original proceeding and not a new
                        proceeding; and
                  (b) is not a review of a decision for the purposes of
30                      section 17.


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     84.         Enforcement of monetary order
           (1)   A person to whom payment is to be made under a monetary
                 order may enforce the order by filing in a court of competent
                 jurisdiction --
5                  (a) a copy of the order that the executive officer has
                         certified to be a true copy; and
                   (b) the person's affidavit as to the amount not paid under
                         the order and, if the order is to take effect upon any
                         default, as to the making of that default.
10         (2)   No charge is to be made for filing a copy of an order or an
                 affidavit under this section.
           (3)   On filing, the order is taken to be an order of the court, and may
                 be enforced accordingly, and section 142(1) of the Supreme
                 Court Act 1935 applies to the amount not paid under the order
15               as if it were payable under a judgment of the court.

     85.         Enforcement of decision other than monetary order
           (1)   If, or to the extent that, a decision of the Tribunal is not a
                 monetary order, it may be enforced under this section.
           (2)   A person seeking to enforce a decision under this section may
20               file in the Supreme Court --
                    (a) a copy of the decision that a judicial member or the
                          executive officer has certified to be a true copy;
                    (b) the person's affidavit as to the non-compliance with the
                          decision; and
25                  (c) a certificate from a judicial member stating that the
                          decision is appropriate for filing in the Supreme Court.
           (3)   No charge is to be made for filing a copy of a decision, an
                 affidavit, or a certificate under this section.
           (4)   On filing, the decision is taken to be a decision of the Supreme
30               Court, and may be enforced accordingly.


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                                             State Administrative Tribunal Bill 2003
                                               Tribunal's procedures          Part 4
                                                               Costs     Division 5
                                                                                s. 86



                                  Division 5 -- Costs
     86.         Costs of parties and others
           (1)   Unless otherwise specified in this Act, the enabling Act, or an
                 order of the Tribunal under this section, parties bear their own
5                costs in a proceeding of the Tribunal.
           (2)   Unless otherwise specified in the enabling Act, the Tribunal
                 may make an order for the payment by a party of all or any of
                 the costs of another party or of a person required to produce a
                 document or other material on the application of the party under
10               section 35.
           (3)   The power of the Tribunal to make an order for the payment by
                 a party of the costs of another party includes the power to make
                 an order for the payment of an amount to compensate the other
                 party for any expenses, loss, inconvenience, or embarrassment
15               resulting from the proceeding or the matter because of which
                 the proceeding was brought.
           (4)   The rules may deal with the effect of certain offers to settle, and
                 responses, if any, to the offer, on the making of an order for the
                 payment by a party of the costs of another party.
20         (5)   The Tribunal may order that the representative of a party, rather
                 than the party, in the representative's own capacity compensate
                 that or any other party for costs incurred because the
                 representative acted in, or delayed, the proceeding in a way that
                 resulted in unnecessary costs.

25   87.         Costs of proceeding
           (1)   In this section --
                 "costs of a proceeding" means costs of, or incidental to, a
                     proceeding of the Tribunal, other than costs of a party.
           (2)   The Tribunal may order that all or any of the costs of a
30               proceeding be paid by a party.



                                                                            page 51
     State Administrative Tribunal Bill 2003
     Part 4          Tribunal's procedures
     Division 6      Other procedural provisions
     s. 88



           (3)   If the matter that is the subject of the proceeding comes within
                 the Tribunal's review jurisdiction, the Tribunal cannot make an
                 order under this section against a party unless --
                   (a) the party brought or conducted the proceeding
5                        frivolously or vexatiously; or
                   (b) circumstances have arisen in which the Tribunal could
                         make an order under section 46, 47 or 48.

     88.         Amount of costs
                 If the Tribunal makes an order under this Division for the
10               payment of costs and does not fix the amount of costs, that
                 amount is to be assessed or settled in accordance with the rules.

                    Division 6 -- Other procedural provisions
     89.         Injunction
           (1)   The Tribunal may by order grant an injunction in any
15               proceeding if it is just and convenient to do so.
           (2)   The Tribunal's power to make an order under subsection (1) is
                 exercisable by --
                   (a) in the case of an interim injunction, a legally qualified
                         member; and
20                 (b) in any other case, a judicial member.
           (3)   The Tribunal may make the order on the application of a party
                 or on its own initiative.
           (4)   An interim injunction may be granted whether or not a person
                 whose interests may be affected --
25                (a) is a party; or
                  (b) has been given an opportunity to be heard.
           (5)   An interim injunction may be granted --
                  (a) in any case -- for a specified period; and



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                                            State Administrative Tribunal Bill 2003
                                               Tribunal's procedures         Part 4
                                         Other procedural provisions    Division 6
                                                                               s. 90



                  (b)    if granted on the application of a party -- for the period
                         up to the final determination of that application.
           (6)   In granting an interim injunction, the Tribunal --
                   (a) may require an undertaking as to costs or damages as it
5                        considers appropriate; and
                   (b) may provide for the lifting of the injunction if specified
                         conditions are met.
           (7)   The Tribunal may assess any costs or damages referred to in
                 subsection (6)(a) and any amount so assessed is a debt
10               recoverable in a court of competent jurisdiction.
           (8)   The rules may place conditions on the Tribunal's power to grant
                 an interim injunction.
           (9)   The Tribunal's power under this section is in addition to, and
                 does not limit, any power of the Tribunal under the enabling Act
15               to make an order in the nature of an injunction.

     90.         Declaration
           (1)   The Tribunal may make a declaration concerning any matter in
                 a proceeding instead of any orders it could make, or in addition
                 to any orders it makes, in the proceeding.
20         (2)   The Tribunal's power to make a declaration under
                 subsection (1) is exercisable only by a judicial member.
           (3)   The Tribunal's power under this section is in addition to, and
                 does not limit, any power of the Tribunal under the enabling Act
                 to make a declaration.
25         (4)   The Tribunal may at any time make any order necessary or
                 desirable to give effect to a declaration made under subsection (1).




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     State Administrative Tribunal Bill 2003
     Part 4          Tribunal's procedures
     Division 6      Other procedural provisions
     s. 91



     91.         Relief from procedural requirements
           (1)   The rules may provide for the Tribunal to --
                   (a)   extend or abridge a time limit for doing anything in
                         connection with a proceeding even though the limit is
5                        imposed under this Act or the enabling Act; or
                   (b)   waive compliance with any other procedural
                         requirement in connection with a proceeding.
           (2)   The extension or waiver may be authorised even though the
                 time for complying has passed.
10         (3)   This section does not apply to the extent, if any, that it is
                 expressly excluded by the enabling Act.
           (4)   The Tribunal cannot extend or abridge time or waive
                 compliance if to do so would cause any prejudice or detriment
                 to a party or potential party that cannot be remedied by an
15               appropriate order for costs or damages.
     92.         Entry and inspection
           (1)   If the presiding member considers it desirable for the purposes
                 of a proceeding, the Tribunal may --
                   (a) enter and inspect any place, building, vehicle, vessel or
20                        other thing either in the presence of, or without, the parties;
                   (b) authorise a member of staff of the Tribunal or other
                          person to enter and inspect any place, building, vehicle,
                          vessel or other thing for the purpose of preparing a
                          report to the Tribunal; or
25                 (c) order an occupier of any place, building, vehicle, vessel
                          or other thing relevant to the proceeding to give a person
                          who is to give evidence in the proceeding reasonable
                          access to the place, building, vehicle, vessel or other
                          thing.




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                                           State Administrative Tribunal Bill 2003
                                              Tribunal's procedures         Part 4
                                        Other procedural provisions    Division 6
                                                                              s. 93



           (2)   If land or a building is occupied by a person who is not a party,
                 a power of entry under subsection (1)(a) or (b) cannot be
                 exercised unless --
                   (a) the occupier has consented to the entry;
5                  (b) notice of the entry has been given to the occupier at least
                         2 days before the day on which the entry is made; or
                   (c) a judicial member considers that the need for the entry is
                         urgent or exceptional.
           (3)   A power of entry and inspection under subsection (1)(a) is
10               exercisable only by all of the sitting members together, unless
                 the presiding member directs otherwise.
           (4)   A power of entry under subsection (1)(a) or (b) may be
                 exercised at any reasonable time.
           (5)   A person commits an offence if the person --
15                 (a) obstructs or hinders the exercise by a person of a power
                        given by this section; or
                  (b) refuses access to any place, building, vehicle, vessel or
                        other thing to a person seeking access in order to
                        exercise a power of entry and inspection under this
20                      section.
                 Penalty: $5 000.

     93.         Tribunal to give Supreme Court documents and things
           (1)   This section applies if --
                  (a)   a party appeals under section 104 from a decision of the
25                      Tribunal; or
                  (b)   a question is referred under section 59(10)(b) to the
                        Supreme Court for decision.




                                                                           page 55
     State Administrative Tribunal Bill 2003
     Part 4          Tribunal's procedures
     Division 6      Other procedural provisions
     s. 93



        (2)    In this section --
               "party" means a party in the proceeding of the Tribunal in
                    respect of which the appeal was instituted or the reference
                    was made.
5       (3)    The executive officer is to give the Supreme Court --
                (a)   all documents and other material that were before the
                      Tribunal in connection with the proceeding to which the
                      appeal or reference relates; and
                (b)   any other documents and other material in the Tribunal's
10                    possession that the Tribunal is required by rules of the
                      Supreme Court to send to the Court.
        (4)    The Supreme Court is to return the documents and material to
               the Tribunal at the conclusion of the proceeding before the
               Supreme Court in relation to the appeal or reference.
15      (5)    If any of the documents is protected matter or contains protected
               matter, the Supreme Court is to ensure that the protected matter
               is not disclosed in any way other than to --
                (a)   a member of the Court as constituted for the purposes of
                      the proceeding; or
20              (b)   a person to whom disclosure is allowed under
                      subsection (6).
        (6)    The Supreme Court may permit a party, or a representative of a
               party, to inspect a document to which a certificate under
               section 157(2) applies, other than an exempt document, to the
25             extent necessary to disclose anything it contains if --
                 (a) the certificate does not specify as a reason for
                       non-disclosure a reason mentioned in
                       section 157(3)(a), (b) or (d); and
                 (b) a question for decision by the Supreme Court is whether
30                     that thing should be disclosed to some or all of the
                       parties.


     page 56
                                             State Administrative Tribunal Bill 2003
                                               Tribunal's procedures          Part 4
                                                            Offences     Division 7
                                                                                s. 94



           (7)   This section does not prevent a disclosure to an officer of the
                 Supreme Court for the purpose of the performance of duties as
                 an officer of the Court.

                                Division 7 -- Offences
5    94.         Failing to comply with decision
           (1)   A person who fails to comply with a decision of the Tribunal
                 commits an offence.
                 Penalty: $10 000.
           (2)   Subsection (1) does not apply if, or to the extent that, the
10               decision is a monetary order.
           (3)   If the Tribunal made the decision without giving a person an
                 opportunity to be heard, subsection (1) only applies to that
                 person on the person being given personally or in accordance
                 with subsection (4) --
15                 (a) a copy of the decision that a judicial member or the
                         executive officer has certified to be a true copy; and
                   (b) a copy of this section.
           (4)   If the Tribunal is satisfied that it is not possible or appropriate
                 for a person to be personally given the documents referred to in
20               subsection (3), the Tribunal may specify another method for
                 service of the documents on the person under that subsection.

     95.         Failing to comply with summons
                 A person who, without reasonable excuse, fails to comply with
                 a summons under section 66(1) commits an offence.
25               Penalty: $5 000.




                                                                                page 57
     State Administrative Tribunal Bill 2003
     Part 4          Tribunal's procedures
     Division 7      Offences
     s. 96



     96.       Failing to give evidence as required
               A person appearing before the Tribunal commits an offence if,
               without reasonable excuse, the person --
                 (a) refuses to swear an oath or make an affirmation or
5                     statutory declaration when required by the Tribunal to
                      do so; or
                (b) refuses to answer a question that the person is required
                      by the Tribunal to answer.
               Penalty: $5 000.

10   97.       Giving false or misleading information
               A person who gives to the Tribunal information knowing it to
               be false or misleading in a material particular commits an
               offence.
               Penalty: $10 000.

15   98.       Misbehaviour and other conduct
               A person who --
                (a) insults, obstructs or hinders a Tribunal member while
                      that member is performing functions as a member;
                (b) insults, obstructs or hinders a person attending a hearing
20                    before the Tribunal;
                (c) misbehaves at a hearing before the Tribunal;
                (d) interrupts a hearing before the Tribunal; or
                (e) obstructs or hinders a person from complying with an
                      order of the Tribunal or a summons to attend the
25                    Tribunal,
               commits an offence.
               Penalty: $10 000.




     page 58
                                             State Administrative Tribunal Bill 2003
                                               Tribunal's procedures          Part 4
                                                     Arrest warrants     Division 8
                                                                                s. 99



     99.         Contempt
           (1)   If the President is satisfied that an act or omission of a person
                 would constitute a contempt of the Court if a proceeding of the
                 Tribunal were a proceeding in the Supreme Court, the President
5                may report that act or omission to the Supreme Court and the
                 Court has jurisdiction to deal with the matter as if it were a
                 contempt of the Court.
           (2)   If --
                   (a)    subsection (1) applies to an act or omission by a person
10                        and that act or omission is also an offence under this
                          Act; and
                  (b)     the person has been dealt with under subsection (1) for
                          the act or omission,
                 the person is not liable to be punished for the offence under this
15               Act.

                            Division 8 -- Arrest warrants
     100.        Exercise of powers under this Division
                 The Tribunal's powers under this Division are exercisable only
                 by a judicial member.

20   101.        Arrest
           (1)   If a person fails to attend as required by a summons under
                 section 66(1), the Tribunal may, on proof by a statement
                 verified by statutory declaration that the summons was served,
                 issue a warrant for the apprehension of that person.
25         (2)   A warrant issued under this section authorises any person to
                 whom it is addressed --
                  (a) to apprehend the person named in the warrant at any
                        time and bring the person before the Tribunal; and




                                                                            page 59
     State Administrative Tribunal Bill 2003
     Part 4          Tribunal's procedures
     Division 8      Arrest warrants
     s. 102



                (b)   for that purpose, to detain the person named in the
                      warrant in custody until released by order of the
                      Tribunal or, on review, by order of the Supreme Court.
        (3)    The person executing the warrant may --
5               (a)   break and enter any place, building, vehicle, vessel or
                      other thing for the purpose of executing the warrant; and
                (b)   use reasonable force and assistance to apprehend the
                      person named in the warrant.
        (4)    The apprehension of a person under this section does not
10             prevent the person from being dealt with under section 99 for
               contempt.

     102.      Conditional release from custody
        (1)    The release of a person by order of the Tribunal under
               section 101(2)(b) may be made subject to one or more of the
15             following conditions --
                 (a) a condition that the person appear and report before the
                       Tribunal in accordance with the terms of the order
                       unless excused from attendance or until released from
                       further attendance by the Tribunal;
20               (b) conditions for the purpose of ensuring the further
                       attendance of the person before the Tribunal (for
                       example, the provision of sureties by the person, the
                       surrender of any passport held by the person, a
                       requirement as to where the person is to live and regular
25                     reporting by the person to the Tribunal);
                 (c) any other condition that the Tribunal thinks appropriate.
        (2)    The Tribunal may by order amend, revoke or add to those
               conditions.
        (3)    A person who without reasonable excuse fails to comply with a
30             condition to which the release of the person under
               section 101(2)(b) is subject is guilty of an offence.
               Penalty: $5 000.

     page 60
                                        State Administrative Tribunal Bill 2003
                                          Tribunal's procedures          Part 4
                                                Arrest warrants     Division 8
                                                                         s. 103



     103.    Review by Supreme Court
       (1)   A person who has not been released by the Tribunal under
             section 101(2)(b) or whose release under that provision is
             subject to one or more conditions may apply to the Supreme
5            Court for a review of the decision not to release the person or of
             the terms of one or more of those conditions.
       (2)   The Supreme Court may do either or both of the following --
              (a) affirm or set aside a decision by the Tribunal not to
                   release the person or any condition imposed by the
10                 Tribunal on the release of the person;
              (b) make any order that the Tribunal may make in relation
                   to the detention or release of the person.
       (3)   The Supreme Court may also exercise its powers under
             subsection (2) where the Tribunal has not made a decision
15           within a reasonable time on the release of the person.
       (4)   An order under subsection (2) is taken to be an order of the
             Tribunal.




                                                                       page 61
     State Administrative Tribunal Bill 2003
     Part 5          Appeals from Tribunal's decisions

     s. 104



              Part 5 -- Appeals from Tribunal's decisions
     104.      Appeal from Tribunal's decision
        (1)    A party to a proceeding may appeal from a decision of the
               Tribunal in the proceeding, but only if the court to which the
5              appeal lies gives leave to appeal.
        (2)    The appeal can only be brought on a question of law unless it is
               otherwise expressly stated.
        (3)    The appeal lies to --
                (a) the Full Court, if the decision was made by --
10                      (i) a judicial member; or
                       (ii) the Tribunal constituted by members who
                              include a judicial member;
                (b) the Supreme Court, in any other case.
        (4)    In subsection (3)(a) --
15             "Full Court" has the meaning given to that term in the Supreme
                    Court Act 1935 section 4.
        (5)    An application for leave to appeal has to be made in accordance
               with the rules of the Supreme Court and within the period of
               28 days after --
20               (a) the day on which the Tribunal's decision is given; or
                (b) if the Tribunal gives its decision without giving written
                       reasons for its decision and the party then requests it to
                       give written reasons under section 77, the day on which
                       the written reasons are given to the party.
25      (6)    If leave is granted, the appeal has to be instituted in accordance
               with the rules of the Supreme Court and within the period of
               21 days after the day on which leave is granted.
        (7)    The court to which the appeal lies may extend a time limit fixed
               by this section, and the extension may be given even though the
30             time limit has passed.

     page 62
                                         State Administrative Tribunal Bill 2003
                               Appeals from Tribunal's decisions          Part 5

                                                                           s. 105



       (8)   A party instituting an appeal is to notify the executive officer
             but the Tribunal is not a party to the appeal and nor is any
             Tribunal member.
       (9)   The court dealing with the appeal may --
5             (a)    affirm, vary, or set aside the decision of the Tribunal;
              (b)    make any decision that the Tribunal could have made in
                     the proceeding; or
               (c)   send the matter back to the Tribunal for reconsideration,
                     either with or without the hearing of further evidence, in
10                   accordance with any directions or recommendations that
                     the court considers appropriate,
             and, in any case, may make any order the court considers
             appropriate.
      (10)   If the court sends the matter back to the Tribunal under
15           subsection (9)(c), it is to give directions as to whether or not the
             Tribunal reconsidering the matter is to be constituted by the
             member or members who made the original decision.
      (11)   If the Tribunal's decision is made in a proceeding prescribed by
             the regulations, a party cannot apply for leave to appeal under
20           this section unless the party agrees to indemnify each other
             party to the proceeding against that other party's reasonable
             legal costs of the appeal.

     105.    Effect of decision against which appeal made
       (1)   The Supreme Court may, by order, stay the operation of a
25           decision of the Tribunal pending the determination of an
             application for leave to appeal from the decision and of any
             appeal.
       (2)   Subject to any order made by the Supreme Court, an appeal
             does not affect the operation of the decision appealed against or
30           prevent the taking of action to implement the decision.




                                                                         page 63
     State Administrative Tribunal Bill 2003
     Part 6          Tribunal's membership and other provisions
     Division 1      Members of the Tribunal
     s. 106



     Part 6 -- Tribunal's membership and other provisions
                    Division 1 -- Members of the Tribunal

                        Subdivision 1 -- Kinds of members

     106.      Tribunal members
5              The Tribunal is to have --
                (a) judicial members, being --
                        (i) the President; and
                       (ii) at least one Deputy President;
                      and
10              (b) other members, each of whom is either a senior member
                      or an ordinary member.

                            Subdivision 2 -- President

     107.      Appointment of President
        (1)    A person is appointed as the President of the Tribunal by the
15             Governor on the recommendation of the Minister.
        (2)    The appointment is to be by means of a commission under the
               Public Seal of the State.
        (3)    A person cannot be the President unless the person is a Judge of
               the Supreme Court.
20      (4)    Before recommending a person for appointment as the
               President, the Minister is to consult the Chief Justice of Western
               Australia.

     108.      Tenure of President's office
        (1)    The term for which a person is appointed as the President is to
25             be fixed in the commission and is to be not longer than 5 years.




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                                      Members of the Tribunal      Division 1
                                                                        s. 109



       (2)   A person's eligibility for reappointment or the term for which a
             person may be reappointed is not affected by an earlier
             appointment.

     109.    Vacating office prematurely
5      (1)   A person may resign from office as the President by giving the
             Governor a signed letter of resignation.
       (2)   A resignation is not effective until the Governor has accepted it.
       (3)   If a resignation is accepted it takes effect when it is accepted or
             at any later date stated in the letter.
10     (4)   A person who has resigned from office as the President is not
             precluded from again being appointed to the office.
       (5)   The person who holds office as the President does so during
             good behaviour but the Governor may, on the address of both
             Houses of Parliament, terminate the person's term of office.
15     (6)   If the person who holds office as the President becomes
             ineligible, because of section 107(3), to hold the office, the
             person's term of office terminates.

     110.    President's status as Supreme Court Judge
       (1)   The appointment of a person as the President does not affect the
20           person's tenure of office as, or status as, a Judge of the Supreme
             Court nor the payment of the person's salary or allowances as a
             Judge nor any other rights or privileges of the person as a Judge.
       (2)   A person's service in the office of President is to be taken for all
             purposes to be service in the person's office of Judge of the
25           Supreme Court.
       (3)   Nothing in this Act prevents a person who holds office as the
             President from doing anything in the person's capacity as a
             Judge of the Supreme Court.




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     Part 6          Tribunal's membership and other provisions
     Division 1      Members of the Tribunal
     s. 111



        (4)    A person's resignation from office as the President or the
               termination of a person's term of office as the President does
               not affect the person's office as a Judge of the Supreme Court.

                        Subdivision 3 -- Deputy President

5    111.      Appointment of Deputy President
        (1)    A person is appointed as a Deputy President of the Tribunal by
               the Governor on the recommendation of the Minister.
        (2)    The appointment is to be by means of a commission under the
               Public Seal of the State.
10      (3)    A person cannot be a Deputy President unless the person is a
               Judge of the District Court.
        (4)    Before recommending a person for appointment as a Deputy
               President, the Minister is to consult the Chief Justice of Western
               Australia and the Chief Judge of the District Court.

15   112.      Tenure of Deputy President's office
        (1)    The term for which a person is appointed as a Deputy President
               is to be fixed in the commission and is to be not longer than
               5 years.
        (2)    A person's eligibility for reappointment or the term for which a
20             person may be reappointed is not affected by an earlier
               appointment.

     113.      Vacating office prematurely
        (1)    A person may resign from office as a Deputy President by
               giving the Governor a signed letter of resignation.
25      (2)    A resignation is not effective until the Governor has accepted it.
        (3)    If a resignation is accepted it takes effect when it is accepted or
               at any later date stated in the letter.



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                                      Members of the Tribunal      Division 1
                                                                        s. 114



       (4)   A person who has resigned from office as a Deputy President is
             not precluded from again being appointed to the office.
       (5)   A person who holds office as a Deputy President does so during
             good behaviour but the Governor may, on the address of both
5            Houses of Parliament, terminate the person's term of office.
       (6)   If a person who holds office as a Deputy President becomes
             ineligible, because of section 111(3), to hold the office, the
             person's term of office terminates.

     114.    Deputy President's status as District Court Judge
10     (1)   The appointment of a person as a Deputy President does not
             affect the person's tenure of office as, or status as, a Judge of
             the District Court nor the payment of the person's salary or
             allowances as a Judge nor any other rights or privileges of the
             person as a Judge.
15     (2)   A person's service in an office of Deputy President is to be
             taken for all purposes to be service in the person's office of
             Judge of the District Court.
       (3)   Nothing in this Act prevents a person who holds office as a
             Deputy President from doing anything in the person's capacity
20           as a Judge of the District Court.
       (4)   A person's resignation from office as a Deputy President or the
             termination of a person's term of office as a Deputy President
             does not affect the person's office as a Judge of the District
             Court.

25                     Subdivision 4 -- Other members

     115.    Appointment of non-judicial members
       (1)   A person is appointed as a member of the Tribunal, other than
             the President or a Deputy President, by the Governor on the
             recommendation of the Minister.
30     (2)   The appointment is to be in writing.

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     State Administrative Tribunal Bill 2003
     Part 6          Tribunal's membership and other provisions
     Division 1      Members of the Tribunal
     s. 116



        (3)    A person cannot be a non-judicial member unless the person --
                (a) is a qualified person and has had not less than 5 years'
                      legal experience; or
                (b) has, in the opinion of the Minister, extensive or special
5                     knowledge of, or experience with, any class of matter
                      involved in the exercise of the Tribunal's jurisdiction.
        (4)    A person's appointment may be as a senior member of the
               Tribunal if the person --
                (a) is a qualified person and has had not less than 8 years'
10                    legal experience; or
                (b) has, in the opinion of the Minister, extensive knowledge
                      of, or experience with, any class of matter involved in
                      the exercise of the Tribunal's jurisdiction.
        (5)    An office of magistrate may be held in conjunction with an
15             office of non-judicial member and sections 117 and 118 do not
               apply in that case.
        (6)    Before recommending a person for appointment as a
               non-judicial member, the Minister is to consult the President
               and, in the case of a magistrate, the Chief Stipendiary
20             Magistrate, and may also consult any appropriate Minister,
               person or body.

     116.      Tenure of non-judicial office
        (1)    The office of a non-judicial member is to be held on a full-time
               basis, part-time basis or sessional basis.
25      (2)    The term for which a person is appointed as a non-judicial
               member is to be fixed in the instrument of appointment and is to
               be not longer than 5 years.
        (3)    A person's eligibility for reappointment or the term for which a
               person may be reappointed is not affected by an earlier
30             appointment.



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                                      Members of the Tribunal      Division 1
                                                                        s. 117



     117.    Conditions of service as non-judicial member
       (1)   A non-judicial member is entitled to the emoluments and
             benefits determined by the Governor unless the Salaries and
             Allowances Act 1975 applies to the member's office.
5      (2)   The cost of emoluments and benefits under subsection (1) is to
             be charged to the Consolidated Fund and this subsection
             appropriates the Consolidated Fund accordingly.
       (3)   The emoluments and benefits to which a non-judicial member is
             entitled cannot, during the member's term of office, be changed
10           to be less favourable without the member's consent.
       (4)   The Governor may determine the leave of absence to which a
             non-judicial member is entitled and any other terms and
             conditions of service as a non-judicial member.

     118.    Outside employment prohibited
15     (1)   A non-judicial member who is appointed on a full-time basis is
             not allowed to engage in the practice of any profession or in any
             paid employment (whether or not within Western Australia)
             outside the duties of office as a member of the Tribunal except
             with the consent of the President and in accordance with any
20           conditions attached to that consent.
       (2)   A non-judicial member who is appointed on a part-time basis is
             allowed to engage in the practice of any profession or in any
             paid employment (whether or not within Western Australia)
             outside the duties of office as a member of the Tribunal only
25           if --
                (a) the member has first advised the President in writing;
                     and
                (b) the President has not advised the member that, in the
                     President's opinion, to do so would or may conflict with
30                   the proper performance of the member's duties of office.




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        (3)    Despite anything in this section a non-judicial member is not
               allowed to engage in any paid employment as a public sector
               employee.
        (4)    A non-judicial member who is appointed on a part-time basis is
5              not allowed to represent another person in a matter that is before
               the Tribunal.

     119.      Code of conduct
        (1)    The President is to make and maintain a written code of conduct
               applying to each person performing functions as a non-judicial
10             member.
        (2)    To the extent that the President considers appropriate, the
               President is to consult with Tribunal members, members of staff
               of the Tribunal, the Commissioner for Public Sector Standards
               under the Public Sector Management Act 1994 and other
15             persons about what the code of conduct should contain.
        (3)    Each person performing functions as a non-judicial member is
               to comply with the code of conduct.

     120.      Suspension of non-judicial member
        (1)    The President, with the approval of the Minister, may suspend a
20             person who is a non-judicial member from office if the
               President believes --
                 (a) that there may be a reason under section 121 to
                      terminate the person's term of office; or
                 (b) that the person is the subject of a matter before the
25                    Tribunal otherwise than as a Tribunal member.
        (2)    A person who is suspended from office under this section
               (called the "person suspended" in sections 122 to 124) remains
               entitled to the emoluments of the office while suspended.




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     121.    Why termination may be recommended
             The reasons for which the term of office of a person may be
             terminated are that the person --
               (a) has been convicted of an indictable offence or an
5                   offence that, if committed in Western Australia, would
                    be an indictable offence;
               (b) has become incapable of performing, or has neglected to
                    perform, the duties of office; or
               (c) is unfit to hold office because of misconduct.

10   122.    Investigation of non-judicial member
       (1)   As soon as practicable after the President suspends a person
             from office under section 120(1)(a), the President is to appoint a
             person nominated by the President to undertake an investigation
             into the conduct or circumstances that led to the suspension.
15     (2)   The person appointed under subsection (1) (called the
             "investigator" in subsection (3) and sections 123 and 124) is
             to --
               (a) investigate the conduct of the person suspended;
               (b) report to the Minister on the investigation; and
20             (c) give a copy of the report to the person suspended and
                    the President.
       (3)   The investigator's report may include a recommendation that
             the term of office of the person suspended be terminated.

     123.    Action on investigator's report
25     (1)   After considering the report and consulting the President, the
             Minister may recommend that the Governor terminate the term
             of office of the person suspended.




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        (2)    If the Minister decides not to recommend that the term of office
               of the person suspended be terminated --
                 (a) the Minister is to inform the President as soon as
                       practicable after receiving the investigator's report; and
5                (b) the President is to terminate the suspension.

     124.      Deciding whether to recommend termination
        (1)    Neither the investigator nor the Minister can recommend that
               the term of office of the person suspended be terminated unless
               satisfied that there is a reason under section 121 to terminate it.
10      (2)    The Minister cannot recommend that the term of office of the
               person suspended be terminated unless the person has been
               given a reasonable opportunity to make written and oral
               submissions to the investigator and the President.
        (3)    The Minister may, in deciding whether or not to recommend
15             that the term of office of the person suspended be terminated,
               rely on the investigator's report.

     125.      Vacating office prematurely
        (1)    A non-judicial member may resign from office by giving the
               Minister a signed letter of resignation addressed to the
20             Governor.
        (2)    A resignation is not effective until the Governor has accepted it.
        (3)    If a resignation is accepted it takes effect when it is accepted or
               at any later date stated in the letter.

        (4)    A person who has resigned from office as a non-judicial
25             member is not precluded from again being appointed as a
               non-judicial member.




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       (5)   The period for which a person who is a non-judicial member
             was appointed may at any time be terminated by the Governor
             on the grounds of --
               (a) the person having been convicted of an indictable
5                    offence or an offence that, if committed in Western
                     Australia, would be an indictable offence;
              (b) the person being an insolvent under administration
                     according to the meaning of that term in the
                     Corporations Act 2001 of the Commonwealth; or
10             (c) the Minister having recommended under section 123(1)
                     that the Governor terminate the person's term of office.

             Division 2 -- Acting and supplementary members

                       Subdivision 1 -- Acting President

     126.    Appointment to act as President
15     (1)   If there is, or is expected to be, a vacancy in the office of
             President or the President is, or is expected to be, absent or, for
             any other reason, unable to perform the duties of office, a
             person may be appointed in accordance with this section to act
             in the office of President.
20     (2)   The appointment is to be for a term not exceeding 6 months
             specified in the instrument of appointment and it may be
             made --
               (a) by the Governor; or
               (b) if the appointment is for a term not exceeding 3 months
25                   and the Minister has not previously appointed the person
                     under this section, by the Minister.
       (3)   A person cannot be appointed to act in the office of President
             unless the person is a Judge of the Supreme Court.
       (4)   Before appointing a person, or recommending that the Governor
30           appoint a person, to act in the office of President, the Minister is
             to consult the Chief Justice of Western Australia.

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        (5)    A person's eligibility for reappointment or the term for which a
               person may be reappointed is not affected by an earlier
               appointment.

     127.      Terminating acting prematurely
5       (1)    A person appointed to act in the office of President may resign
               from acting in the office by giving the Minister a signed letter of
               resignation.
        (2)    A resignation is not effective until the Minister has accepted it.
        (3)    If a resignation is accepted it takes effect when it is accepted or
10             at any later date stated in the letter.
        (4)    A person who has resigned from acting in the office of President
               is not precluded from again being appointed to act in the office.
        (5)    The period for which a person was appointed to act in the office
               of President may at any time be terminated by the Governor.
15      (6)    If a person appointed to act in the office of President ceases to
               be a Judge of the Supreme Court, the person's term of office
               terminates.

     128.      Acting President's status as Supreme Court Judge
        (1)    The appointment of a person to act in the office of President
20             does not affect the person's tenure of office as, or status as, a
               Judge of the Supreme Court nor the payment of the person's
               salary or allowances as a Judge nor any other rights or
               privileges of the person as a Judge.
        (2)    A person's service acting in the office of President is to be taken
25             for all purposes to be service in the person's office of Judge of
               the Supreme Court.
        (3)    Nothing in this Act prevents a person who acts in the office of
               President from doing anything in the person's capacity as a
               Judge of the Supreme Court.



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       (4)   A person's resignation from acting in the office of President or
             the termination of a person's term of acting in the office of
             President does not of itself affect the person's office as a Judge
             of the Supreme Court.

5    129.    Deputy President may sometimes act as President
       (1)   If there is a vacancy in the office of President or the President is
             absent or, for any other reason, unable to perform the duties of
             office, the person holding office as Deputy President, or the
             senior of them if there is more than one, may act in the office of
10           President unless a person has been appointed under section 126
             to act.
       (2)   If there is more than one person holding office as Deputy
             President the Minister may resolve any question as to which of
             them is the senior.

15   130.    Deputy President's allowance for acting as President
             A person holding office as Deputy President who acts in the
             office of President is entitled to be paid an allowance
             representing the difference between the emoluments and
             benefits for the office of President and the emoluments and
20           benefits to which the person is entitled for holding office as
             Deputy President.

     131.    Consequences of acting
             A person acting in the office of President as authorised by an
             appointment under section 126 or by section 129 is to be
25           regarded as the President for the purposes of this Act and
             enabling Acts.

                  Subdivision 2 -- Acting Deputy President

     132.    Appointment to act as Deputy President
       (1)   If there is, or is expected to be, a vacancy in an office of Deputy
30           President or a Deputy President is, or is expected to be, absent


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     s. 133



               or, for any other reason, unable to perform the duties of office, a
               person may be appointed in accordance with this section to act
               in the office of Deputy President.
        (2)    The appointment is to be for a term not exceeding 6 months
5              specified in the instrument of appointment and it may be
               made --
                 (a) by the Governor; or
                 (b) if the appointment is for a term not exceeding 3 months
                       and the Minister has not previously appointed the person
10                     under this section, by the Minister.
        (3)    A person cannot be appointed to act in an office of Deputy
               President unless the person is a Judge of the District Court.
        (4)    Before appointing a person, or recommending that the Governor
               appoint a person, to act in an office of Deputy President, the
15             Minister is to consult the Chief Justice of Western Australia and
               the Chief Judge of the District Court.
        (5)    A person's eligibility for reappointment or the term for which a
               person may be reappointed is not affected by an earlier
               appointment.

20   133.      Terminating acting prematurely
        (1)    A person appointed to act in an office of Deputy President may
               resign from acting in the office by giving the Minister a signed
               letter of resignation.
        (2)    A resignation is not effective until the Minister has accepted it.
25      (3)    If a resignation is accepted it takes effect when it is accepted or
               at any later date stated in the letter.
        (4)    A person who has resigned from acting in an office of Deputy
               President is not precluded from again being appointed to act in
               the office.




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                            Acting and supplementary members        Division 2
                                                                         s. 134



       (5)   The period for which a person was appointed to act in an office
             of Deputy President may at any time be terminated by the
             Governor.
       (6)   If a person appointed to act in an office of Deputy President
5            ceases to be a Judge of the District Court, the person's term of
             office terminates.

     134.    Acting Deputy President's status as District Court Judge
       (1)   The appointment of a person to act in an office of Deputy
             President does not affect the person's tenure of office as, or
10           status as, a Judge of the District Court nor the payment of the
             person's salary or allowances as a Judge nor any other rights or
             privileges of the person as a Judge.
       (2)   A person's service acting in an office of Deputy President is to
             be taken for all purposes to be service in the person's office of
15           Judge of the District Court.
       (3)   Nothing in this Act prevents a person who acts in an office of
             Deputy President from doing anything in the person's capacity
             as a Judge of the District Court.
       (4)   A person's resignation from acting in an office of Deputy
20           President or the termination of a person's term of acting in an
             office of Deputy President does not of itself affect the person's
             office as a Judge of the District Court.

     135.    Consequences of acting
             A person acting in an office of Deputy President as authorised
25           by an appointment under section 132 is to be regarded as a
             Deputy President for the purposes of this Act and enabling Acts.

             Subdivision 3 -- Supplementary judicial members

     136.    Supplementary President
       (1)   Even though there is no vacancy in the office of President and
30           the holder of that office is performing duties of the office, the

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               Minister, on the request of the President, may temporarily
               appoint a person as a supplementary President to act as the
               President in relation to a particular matter or matters or for a
               specified period.
5       (2)    A person cannot be appointed as a supplementary President
               unless the person is a Judge, acting Judge, auxiliary Judge or
               retired Judge of the Supreme Court and, except in the case of a
               retired Judge, can only be appointed with the consent of the
               Chief Justice of Western Australia.
10      (3)    The appointment is to be in writing.
        (4)    The person appointed may act as the President in relation to a
               matter, or for the period, for which the person is appointed, and
               when acting under the appointment the person is to be regarded
               as the President for the purposes of this Act and enabling Acts.
15      (5)    Subsection (4) does not authorise the person appointed to
               perform functions of the kind set out in
               section 11, 52(2), 54(2), 115(6) or 119, Division 1
               Subdivision 4, section 142(2), Part 7 or section 150, 164(8)
               or 167(2).
20      (6)    Section 127(1) to (5) apply with any necessary modifications to
               an appointment under this section.

     137.      Supplementary President's status as Supreme Court Judge
        (1)    The appointment of a Judge of the Supreme Court as a
               supplementary President to act as the President does not affect
25             the person's tenure of office as, or status as, a Judge of the
               Supreme Court nor the payment of the person's salary or
               allowances as a Judge nor any other rights or privileges of the
               person as a Judge.
        (2)    Service of a Judge of the Supreme Court as a supplementary
30             President acting as the President is to be taken for all purposes
               to be service in the person's office of Judge of the Supreme
               Court.


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       (3)   Nothing in this Act prevents a Judge of the Supreme Court who
             acts as the President under this Subdivision from doing anything
             in the person's capacity as a Judge of the Supreme Court.

     138.    Supplementary Deputy Presidents
5      (1)   Even though there is no vacancy in an office of Deputy
             President and each holder of an office of Deputy President is
             performing duties of the office, the Minister, on the request of
             the President, may temporarily appoint a person as a
             supplementary Deputy President to act as a Deputy President in
10           relation to a particular matter or matters or for a specified
             period.
       (2)   A person cannot be appointed as a supplementary Deputy
             President unless the person is a Judge, acting Judge, auxiliary
             Judge or retired Judge of the District Court and, except in the
15           case of a retired Judge, can only be appointed with the consent
             of the Chief Judge of the District Court.
       (3)   The appointment is to be in writing.
       (4)   The person appointed may act as a Deputy President in relation
             to a matter, or for the period, for which the person is appointed,
20           and when acting under the appointment the person is to be
             regarded as a Deputy President for the purposes of this Act and
             enabling Acts.
       (5)   Section 133(1) to (5) apply with any necessary modifications to
             an appointment under this section.

25   139.    Supplementary Deputy President's status as District Court
             Judge
       (1)   The appointment of a Judge of the District Court as a
             supplementary Deputy President to act as a Deputy President
             does not affect the person's tenure of office as, or status as, a
30           Judge nor the payment of the person's salary or allowances as a
             Judge nor any other rights or privileges of the person as a Judge.



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        (2)    Service of a Judge of the District Court as a supplementary
               Deputy President acting as a Deputy President is to be taken for
               all purposes to be service in the person's office of Judge of the
               District Court.
5       (3)    Nothing in this Act prevents a Judge of the District Court who
               acts as a Deputy President under this Subdivision from doing
               anything in the person's capacity as a Judge of the District
               Court.

            Division 3 -- Other matters about Tribunal members
10   140.      Fixing the period of appointment
               In fixing the periods for which judicial members and
               non-judicial members are appointed regard shall be had to the
               security of tenure of Tribunal members and the development
               and retention of a membership that has experience and expertise
15             in the exercise of the Tribunal's jurisdiction.

     141.      Training
        (1)    The judicial members are responsible for directing the
               education, training, and professional development of the
               Tribunal members.
20      (2)    The Rules Committee is to assist the judicial members in
               carrying out the functions given by subsection (1) so far as they
               are functions that relate to the rules, the practice notes and
               practice and procedure generally.
        (3)    The Minister is to ensure that appropriate provision is made for
25             the education, training, and professional development of the
               Tribunal members.

     142.      Disclosure of interests
        (1)    This section applies to a person who constitutes, or is to
               constitute, the Tribunal for the purposes of a particular matter,
30             whether with or without others, and who has or acquires an


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             interest, pecuniary or otherwise, that could conflict with the
             proper performance of the person's functions as a member in
             relation to that matter.
       (2)   The person is to disclose the nature of the person's interest to
5            the President or, if the person is the President, to the Chief
             Justice of Western Australia.
       (3)   The person is not allowed to be a sitting member of the
             Tribunal, or perform any function as a Tribunal member, in
             relation to the matter unless each of the parties involved agrees.

10   143.    Completion of matters
       (1)   A former Tribunal member may, despite the expiration of the
             member's term of appointment, complete or otherwise continue
             to deal with any matters relating to proceedings before the
             Tribunal that have been heard or partly heard by the member
15           before the expiration of that term.
       (2)   While completing or otherwise dealing with matters under
             subsection (1), a former Tribunal member is taken to have all
             the powers and immunities as a Tribunal member that the
             former member had immediately before the expiration of his or
20           her term of appointment.




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     s. 144



                          Part 7 -- Administration
     144.      Responsibility for administration of Act
        (1)    The President is responsible to the Minister for the
               administration of this Act.
5       (2)    Without limiting subsection (1), the President is responsible for
               organising the business of the Tribunal, including where and
               when it will conduct hearings.

     145.      President to advise Minister
               It is a function of the President to advise the Minister of any
10             action that the President considers would lead to --
                  (a) the more convenient, economic, and efficient disposal of
                         the business of the Tribunal;
                 (b) the avoidance of delay in the conduct of proceedings; or
                  (c) this Act or an enabling Act being rendered more
15                       effective.

     146.      Executive officer and other staff of Tribunal
        (1)    The chief executive officer is to make an officer of the
               Department available to perform, under the control of the
               President, the functions under this Act of the executive officer
20             of the Tribunal and assist in the administration of this Act and
               the exercise of the Tribunal's jurisdiction.
        (2)    In addition, the chief executive officer is to make other officers
               of the Department available to assist, under the control of the
               executive officer, in the administration of this Act and the
25             exercise of the Tribunal's jurisdiction.
        (3)    Otherwise, the services and facilities of the Department may be
               used for the purposes of this Act on such terms as are agreed to
               by the President and the chief executive officer.




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                                                                          s. 147



     147.    Delegation by judicial member
       (1)   A judicial member may delegate to another person a power or
             duty given by this Act that is of an administrative nature.
       (2)   The President cannot delegate a power or duty under section 11
5            to a person other than a Deputy President.
       (3)   The person making the delegation is to make it in writing and
             sign it.
       (4)   A person to whom a power or duty is delegated in accordance
             with this section cannot delegate that power or duty.
10     (5)   A person exercising or performing a power or duty that has been
             delegated to the person in accordance with this section is taken
             to do so in accordance with the terms of the delegation unless
             the contrary is shown.
       (6)   Nothing in this section limits an ability to perform a function
15           through an officer or agent.

     148.    Annual reports of the Tribunal
       (1)   The President is required, on or before 30 September in each
             year, to submit to the Minister an annual report on the activities
             of the Tribunal during the year ending on the preceding 30 June.
20     (2)   The annual report is to include details of --
               (a)   the number, nature, and outcome, of matters that have
                     come before the Tribunal;
              (b)    the number and nature of matters that are outstanding;
              (c)    any trends or special problems that may have emerged;
25            (d)    the level of compliance by decision-makers with
                     requirements to --
                        (i) notify persons of reviewable decisions and their
                             rights to seek review; and
                       (ii) provide written reasons for reviewable decisions
30                           when requested to do so;

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                 (e)   forecasts of the workload of the Tribunal in the year
                       after the year to which the report relates; and
                 (f)   any proposals for improving the operation of the
                       Tribunal.
5       (3)    The Minister is to cause a copy of each report submitted under
               subsection (1) to be laid before each House of Parliament within
               28 days after submission of the report.
        (4)    The President, if requested to do so by the Minister, is to report
               to the Minister about the jurisdiction and functions of the
10             Tribunal or any matter connected with the exercise of that
               jurisdiction or the carrying out of those functions.
        (5)    The President may, from time to time, report to the Minister
               about anything referred to in subsection (4) whether or not the
               President has been requested to do so.

15   149.      Laying before House of Parliament that is not sitting
        (1)    If --
                 (a)   at the commencement of the period within which
                       section 148(3) requires a copy of a report to be laid
                       before a House of Parliament, the House is not sitting;
20                     and
                (b)    the Minister is of the opinion that the House will not sit
                       during that period,
               the Minister is to transmit a copy of the report to the Clerk of
               the House.
25      (2)    A copy of a report transmitted to the Clerk of a House is to be
               regarded as having been laid before that House.
        (3)    The laying of a copy of a report that, under subsection (2), is to
               be regarded as having occurred is to be recorded in the Minutes,
               or Votes and Proceedings, of the House on the first sitting day
30             of the House after the Clerk received the copy.



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                                                 Other matters            Part 8

                                                                           s. 150



                         Part 8 -- Other matters
     150.    Official seal
             The Tribunal is to have a seal or as many seals as the President
             considers appropriate.

5    151.    Judicial notice
       (1)   All courts and persons acting judicially are required to take
             judicial notice of --
               (a) the signature of a person who is, or was, a member of
                     the Tribunal or the executive officer;
10             (b) the fact that a person referred to in paragraph (a) is or
                     was a member or the executive officer, as the case
                     requires; and
               (c) an official seal of the Tribunal affixed to a document.
       (2)   If an official seal of the Tribunal is affixed to a document, a
15           court or person acting judicially is to presume that it was
             properly affixed unless the contrary is proved.

     152.    Validity of decisions
             A decision of the Tribunal is not invalid only because --
              (a) there was a defect or irregularity in, or in connection
20                  with, a person's appointment to an office or to act in an
                    office;
              (b) a person holding office as Deputy President acted in the
                    office of President when the person was not the senior
                    person holding office as Deputy President;
25            (c) a person acted in the office of President or an office of
                    Deputy President when the occasion for the person to
                    act in the office had not arisen or had ceased;
              (d) a person represents another person in a matter that is
                    before the Tribunal contrary to section 118; or



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                 (e)   a person acted or performed a function contrary to
                       section 11(9) or 142(3).

     153.      Register of proceedings
        (1)    The executive officer is to keep a register of proceedings
5              containing the details specified in the regulations.
        (2)    The executive officer is to ensure that the register is available
               for inspection at any time that the Tribunal's office is open to
               the public for business.
        (3)    A person may --
10              (a) inspect the register; and
                (b) obtain a copy of any part of the register.
        (4)    The regulations --
                 (a)   may require a person who exercises or wishes to
                       exercise a right under subsection (3) to pay a fee
15                     specified in the regulations; and
                (b)    may require that the fee be paid before the right can be
                       exercised,
               except that there is to be no fee for a party to a proceeding
               inspecting that part of the register that relates to the proceeding.
20      (5)    A right under subsection (3) does not apply to the extent, if any,
               that it is inconsistent with --
                 (a) any condition specified in the rules;
                 (b) any order of the Tribunal under section 61; or
                 (c) the duty that this Act or an enabling Act places on the
25                       Tribunal to ensure that certain things are not disclosed
                         or are not made available.

     154.      Publication of Tribunal's decisions
        (1)    The Tribunal may publish its decisions, or any of them.



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                                                Other matters            Part 8

                                                                          s. 155



       (2)   A decision may be published under subsection (1) with or
             without the reasons for it.
       (3)   However section 62 applies to the publication of reasons.

     155.    Secrecy
5      (1)   This section applies to any person who is or has been --
              (a) a member of the Tribunal;
              (b) the executive officer or any other member of staff of the
                     Tribunal; or
              (c) a person acting under the authority of the Tribunal.
10     (2)   Except as permitted by this section, a person to whom this
             section applies commits an offence if the person directly or
             indirectly makes a record of, or discloses to any person, any
             information about the affairs of a person acquired in the
             performance of functions under or in connection with this Act
15           or an enabling Act.
             Penalty: $5 000.
       (3)   A person to whom this section applies may record or disclose
             information referred to in subsection (2) --
               (a) with the written consent of the person to whom the
20                  information relates; or
               (b) in connection with the performance of functions under
                    this Act or an enabling Act.
       (4)   A person to whom this section applies may disclose any
             information referred to in subsection (2) to a member of the
25           Police Force for the purposes of reporting a suspected offence
             or assisting in the investigation of a suspected offence.
       (5)   A person to whom this section applies may disclose any
             information referred to in subsection (2) for statistical purposes
             to a person approved by the Minister provided that the
30           information does not identify any person to whom it relates.



                                                                        page 87
     State Administrative Tribunal Bill 2003
     Part 8          Other matters

     s. 156



        (6)    Nothing in this section applies to the recording or disclosure
               of --
                 (a) anything said or done at a hearing of the Tribunal (other
                      than at a hearing that the Tribunal has directed to be
5                     held in private); or
                 (b) a decision of the Tribunal or the reasons for it.

     156.      Protection from disclosure by others
        (1)    A person to whom information referred to in section 155(2) is
               disclosed, and any employee of that person, is subject to the
10             same obligations and liabilities with respect to the recording or
               disclosure of the information as they would be if they were a
               person to whom section 155 applied who had acquired the
               information in the performance of functions under this Act or an
               enabling Act.
15      (2)    Subsection (1) does not apply to a member of the Police Force
               to whom information is disclosed under section 155(4).

     157.      Whether disclosure contrary to public interest
        (1)    In this section --
               "certificate" means a certificate under subsection (2);
20             "document" includes a part of a document.
        (2)    The Attorney General may certify in writing that the disclosure
               of information about a specified matter, or the disclosure of any
               matter contained in a document, would be contrary to the public
               interest for a reason described in subsection (3) that is specified
25             in the certificate.
        (3)    The certificate may specify that the disclosure would be
               contrary to the public interest --
                 (a) because the disclosure would reveal deliberations or
                      decisions of --
30                       (i) Cabinet;
                        (ii) a committee of Cabinet;

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                                               Other matters            Part 8

                                                                        s. 157



                    (iii) a subcommittee of a committee of Cabinet; or
                    (iv) Executive Council;
            (b)    because the disclosure would reveal something that
                   parliamentary privilege protects from disclosure;
5            (c)   because the disclosure would endanger the national or
                   international security of Western Australia or Australia;
            (d)    because the disclosure would damage
                   inter-governmental relations; or
             (e)   for any other reason that could form the basis for a claim
10                 by the State in a proceeding in the Supreme Court that
                   the information or matter should not be disclosed.
     (4)   The Tribunal constituted by the President sitting alone may
           order that the disclosure of any particular information or
           document to which a certificate applies would not be contrary to
15         the public interest and, subject to subsection (7), the order has
           effect despite the certificate.
     (5)   Any information or document to which a certificate applies is
           required, if requested, to be disclosed to the Tribunal constituted
           by the President sitting alone for the purpose of deciding
20         whether to make an order under subsection (4).
     (6)   For the purposes of section 104 the question of whether or not
           the disclosure of any particular information or document would
           be contrary to the public interest is a question of law.
     (7)   If the Attorney General appeals under section 104 from a
25         decision of the Tribunal to make an order under subsection (4),
           the Attorney General may notify the Tribunal in writing that the
           certificate is confirmed and in that case the certificate continues
           to have effect and the order ceases to have effect --
             (a) pending the determination of the application for leave to
30                  appeal; and
             (b) if leave is granted, pending the determination of the
                    appeal.


                                                                      page 89
     State Administrative Tribunal Bill 2003
     Part 8          Other matters

     s. 158



     158.      How Tribunal is to deal with protected matter
        (1)    The Tribunal is to ensure that protected matter provided to the
               Tribunal is returned to the person by whom it was provided
               when no longer required by the Tribunal.
5       (2)    The Tribunal is to ensure that protected matter provided to the
               Tribunal is not disclosed in any way other than to --
                (a) a sitting member of the Tribunal; or
                (b) a person to whom disclosure is allowed under
                      subsection (3).
10      (3)    The Tribunal, with the consent of the President, may allow a
               party, or a representative of a party, to have access to
               information, or inspect a document, to which a certificate under
               section 157(2) applies on any conditions the Tribunal thinks fit
               except that a person cannot be given access to, or allowed to
15             inspect, an exempt document or information in it.

     159.      Application of the Freedom of Information Act 1992
               This Act does not affect the application of the Freedom of
               Information Act 1992 to the disclosure of an exempt document
               to a person or body other than the Tribunal but that Act does not
20             prevent the disclosure of a document to the Tribunal as required
               or authorised by this Act.

     160.      Immunity
        (1)    To the extent that this section is inconsistent with anything
               expressly stated in another provision of this Act, this section
25             does not apply.
        (2)    A member of the Tribunal has, in the performance of his or her
               functions as member, the same protection and immunity as a
               Judge of the Supreme Court has in the performance of his or her
               duties as a Judge.




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                                                 Other matters            Part 8

                                                                          s. 161



       (3)   A person representing a party in a proceeding has the same
             protection and immunity as a legal practitioner has in
             representing a party in proceedings in the Supreme Court.
       (4)   A party to a proceeding has the same protection and immunity
5            as a party to proceedings in the Supreme Court.
       (5)   A person appearing as a witness before the Tribunal has the
             same protection and immunity as a witness has in proceedings
             in the Supreme Court.
       (6)   A person taking evidence on behalf of the Tribunal under
10           section 71 has, in the performance of his or her functions under
             that section, the same protection and immunity as a member of
             the Tribunal.
       (7)   A person has, in the performance of his or her functions as a
             mediator under section 54 or a special referee under section 65,
15           the same protection and immunity as a member of the Tribunal.
       (8)   A legal practitioner appointed under section 64 to assist the
             Tribunal has, in providing professional services under the
             appointment, the same protection and immunity as a legal
             practitioner has in acting in proceedings in the Supreme Court.
20     (9)   Otherwise a person appointed under section 64 to assist the
             Tribunal has, in the performance of his or her functions under
             the appointment, the same protection and immunity as a witness
             has in proceedings in the Supreme Court.

     161.    Protection from liability
25     (1)   An action in tort does not lie against a person for anything that
             the person has done, in good faith, in the performance or
             purported performance of a function under this Act as a
             Tribunal member or a member of staff of the Tribunal.
       (2)   The Crown is also relieved of any liability that it might
30           otherwise have had for a person having done anything as
             described in subsection (1).


                                                                         page 91
     State Administrative Tribunal Bill 2003
     Part 8          Other matters

     s. 162



        (3)    The protection given by this section applies even though the
               thing done as described in subsection (1) may have been
               capable of being done whether or not this Act had been enacted.
        (4)    In this section, a reference to the doing of anything includes a
5              reference to an omission to do anything.

     162.      Protection for compliance with this Act
        (1)    No civil or criminal liability attaches to a person for
               compliance, or purported compliance, in good faith, with a
               requirement of this Act.
10      (2)    In particular, if a person produced a document or other material
               as required under this Act, no civil liability attaches to the
               person for producing the document or material, whether the
               liability would arise under a contract or otherwise.

     163.      Proceedings for defamation not to lie
15             No action or proceeding, civil or criminal, lies against the State,
               against a Minister or against a person employed or engaged by
               the State, in respect of the printing or publishing of a transcript
               of a proceeding before the Tribunal or a decision, or reasons for
               a decision, of the Tribunal.

20   164.      General principles governing transfer of jurisdiction
        (1)    This section describes the general principles governing how to
               deal with issues arising when a written law confers on the
               Tribunal jurisdiction to deal with a matter that --
                 (a) is of a kind that is substantially similar to a kind of
25                     matter that could, before that jurisdiction was conferred,
                       be dealt with by another tribunal, court, body, or person
                       (the "former adjudicator"); and
                 (b) after that jurisdiction is conferred on the Tribunal, no
                       longer comes within the jurisdiction of the former
30                     adjudicator except under this section.



     page 92
                                      State Administrative Tribunal Bill 2003
                                              Other matters            Part 8

                                                                        s. 164



     (2)   On the day on which jurisdiction is conferred on the Tribunal
           (the "transfer day") --
             (a) any matter of that kind the hearing of which has been
                   sought but not commenced before the former
5                  adjudicator is transferred to the Tribunal;
             (b) any matter of that kind that has been partly or fully
                   heard before, but not determined by, the former
                   adjudicator is to continue to be dealt with and
                   determined by the former adjudicator unless it is
10                 transferred to the Tribunal under subsection (3);
             (c) any matter of that kind that has been determined by the
                   former adjudicator but --
                      (i) would have been appealable had the law in force
                           immediately before the transfer day continued to
15                         apply; or
                     (ii) was the subject of an appeal that was not
                           determined before the transfer day,
                   is to continue to be dealt with as if the law in force
                   immediately before the transfer day had continued in
20                 force; and
             (d) anything ordered, decided, or otherwise done by a
                   former adjudicator in respect of a matter of that kind
                   before the transfer day becomes of the same effect as if,
                   and enforceable as if, it were ordered, decided, or done
25                 by the Tribunal under the provisions authorising the
                   Tribunal to order, decide, or do corresponding things
                   after the transfer day.
     (3)   In the circumstances described in subsection (2)(b) --
             (a) the former adjudicator may, if it would be practicable
30                 for the matter to continue before the Tribunal, transfer
                   the matter to the Tribunal; and




                                                                      page 93
     State Administrative Tribunal Bill 2003
     Part 8          Other matters

     s. 164



                (b)   the former adjudicator is required to transfer the matter
                      to the Tribunal if --
                         (i) the matter cannot be, or is unlikely to be,
                              determined within the period of 6 months after
5                             the transfer day; or
                        (ii) the President directs that the matter be
                              transferred.
        (4)    The law in force before the transfer day continues to apply to
               the extent that is necessary to enable a former adjudicator to
10             continue to deal with and determine a matter under this section
               and to enable an appeal to be made and dealt with according to
               subsection (2)(c) and implemented.
        (5)    Anything ordered, decided, or otherwise done by a former
               adjudicator under this section is to be given effect and enforced,
15             and is subject to appeal, as if it were ordered, decided, or done
               by the Tribunal under the provisions authorising the Tribunal to
               order, decide, or do corresponding things after the transfer day.
        (6)    The appeal lies to the Supreme Court unless the former
               adjudicator is or includes a judge of the Supreme Court or the
20             District Court.
        (7)    A former adjudicator is to cause the executive officer to be
               sent--
                 (a) a record of anything referred to in subsection (5) that the
                     former adjudicator orders, decides, or otherwise does;
25                   and
                 (b) all records relating to a matter that --
                        (i) the former adjudicator finishes dealing with
                             under this section; or
                       (ii) is transferred under this section to the Tribunal.
30      (8)    A former adjudicator who has not completed dealing with any
               matter under this section within the period of 6 months after the
               transfer day is required, within 7 days after that period expires,


     page 94
                                        State Administrative Tribunal Bill 2003
                                                Other matters            Part 8

                                                                           s. 165



             to give to the President a written report about the matter,
             including details of why it has neither been completed nor
             referred to the Tribunal.
       (9)   The regulations may make any provision that is necessary or
5            convenient to apply any of the general principles described in
             this section in a case of a particular kind.

     165.    Regulations
             The Governor may make regulations prescribing all matters that
             are required or permitted by this Act to be prescribed, or are
10           necessary or convenient to be prescribed for giving effect to the
             purposes of this Act.

     166.    Tribunal's rules
       (1)   The Rules Committee may make rules of the Tribunal
             prescribing all matters that are required or permitted by this Act
15           to be prescribed by the rules, or are necessary or convenient to
             be prescribed by the rules for giving effect to the purposes of
             this Act.
       (2)   Without limiting subsection (1), rules may be made about --
              (a) the organisation and management of the business of the
20                 Tribunal;
              (b) the practice and procedure governing the business of the
                   Tribunal; and
              (c) records of the Tribunal.

     167.    Rules Committee
25     (1)   A committee (the "Rules Committee") is established consisting
             of each judicial member and the non-judicial members for the
             time being specified under subsection (2) by the President.
       (2)   The President is to specify from time to time which non-judicial
             members are members of the Rules Committee.



                                                                        page 95
State Administrative Tribunal Bill 2003
Part 8          Other matters

s. 167



   (3)    The membership of the Rules Committee is to include senior
          members and ordinary members and is to be structured so as to
          draw on experience in both the original jurisdiction and the
          review jurisdiction of the Tribunal.




page 96
                                          State Administrative Tribunal Bill 2003
                                  Minor amendments to other Acts           Part 9

                                                                           s. 168



             Part 9 -- Minor amendments to other Acts
     168.    Constitution Acts Amendment Act 1899 amended
       (1)   The amendment in this section is to the Constitution Acts
             Amendment Act 1899*.
5            [* Reprinted as at 8 June 2001.
                For subsequent amendments see Western Australian
                Legislation Information Tables for 2002, Table 1, p. 75-76
                and Acts Nos. 24 of 2002 and 8 of 2003.]
       (2)   Schedule V Part 1 Division 1 is amended by inserting before the
10           item relating to the Western Australian Gas Disputes Arbitrator
             the following item --
             "   Member of the State Administrative Tribunal.   ".

     169.    Interpretation Act 1984 amended
       (1)   The amendments in this section are to the Interpretation
15           Act 1984*.
             [* Reprinted as at 1 January 1999.
                For subsequent amendments see Western Australian
                Legislation Information Tables for 2002, Table 1, p. 186.]
       (2)   Section 5 is amended by inserting in the appropriate
20           alphabetical position the following definition --
             "
                   "State Administrative Tribunal" means the State
                       Administrative Tribunal established under the
                       State Administrative Tribunal Act 2003;
25                                                                             ".
       (3)   Section 51(2) is amended by inserting after "against" --
             "   , or apply for or otherwise seek a review of,       ".




                                                                          page 97
     State Administrative Tribunal Bill 2003
     Part 9          Minor amendments to other Acts

     s. 170



     170.      Legal Representation of Infants Act 1977 amended
        (1)    The amendment in this section is to the Legal Representation of
               Infants Act 1977*.
               [* Reprinted as at 16 May 2003.]
5       (2)    After section 3(1)(b) the following paragraph is inserted --
               "
                     (ba)   the State Administrative Tribunal;
                                                                              ".

     171.      Parliamentary Commissioner Act 1971 amended
10      (1)    The amendment in this section is to the Parliamentary
               Commissioner Act 1971*.
               [* Reprinted as at 16 March 2001.
                  For subsequent amendments see Western Australian
                  Legislation Information Tables for 2002, Table 1, p. 279 and
15                Act No 60 of 1999 and 43 of 2000.]
        (2)    Schedule 1 is amended by inserting after the item relating to the
               Solicitor-General the following item --
               "
                    The State Administrative Tribunal established under the
20                  State Administrative Tribunal Act 2003.
                                                                              ".




     page 98
                                                   State Administrative Tribunal Bill 2003



                                                                                            Defined Terms




                                     Defined Terms
      [This is a list of terms defined and the provisions where they are defined.
                             The list is not part of the law.]
Defined Term                                                                                          Provision(s)
appear ......................................................................................................... 3(1)
applicant ..................................................................................................... 3(1)
application .................................................................................................. 3(1)
certificate .................................................................................................157(1)
chief executive officer ................................................................................. 3(1)
costs of a proceeding ..................................................................................87(1)
decision....................................................................................................... 3(1)
decision-maker............................................................................................ 3(1)
Department ................................................................................................. 3(1)
Deputy President ......................................................................................... 3(1)
document .................................................................................................157(1)
enabling Act................................................................................................ 3(1)
executive officer.......................................................................................... 3(1)
exempt document ........................................................................................ 3(1)
final decision............................................................................................... 3(1)
former adjudicator ....................................................................................164(1)
Full Court.................................................................................................104(4)
investigator ..............................................................................................122(2)
judicial member .......................................................................................... 3(1)
judicial review proceedings ........................................................................19(1)
legal experience........................................................................................... 3(1)
legal practitioner ......................................................................................... 3(1)
legally qualified member ............................................................................. 3(1)
member of staff ........................................................................................... 3(1)
monetary order ............................................................................................ 3(1)
non-judicial member.................................................................................... 3(1)
notifiable person.........................................................................................45(2)
ordinary member ......................................................................................... 3(1)
original jurisdiction ..................................................................................... 3(1)
party.................................................................................................. 3(1), 93(2)
person suspended .....................................................................................120(2)
President ..................................................................................................... 3(1)
presiding member........................................................................................ 3(1)
primary power............................................................................................73(1)
protected matter .......................................................................................... 3(1)
public sector employee ................................................................................ 3(1)
qualified person........................................................................................... 3(1)
question of law...........................................................................................59(1)


                                                                                                        page 99
State Administrative Tribunal Bill 2003



Defined Terms



      relevant hearing..........................................................................................83(1)
      review jurisdiction....................................................................................... 3(1)
      reviewable decision ........................................................................... 3(1), 17(3)
      Rules Committee............................................................................. 3(1), 167(1)
      senior member............................................................................................. 3(1)
      sitting member ............................................................................................ 3(1)
      transfer day ..............................................................................................164(2)
      Tribunal ...................................................................................................... 3(1)
      Tribunal member......................................................................................... 3(1)
      vexatiously.................................................................................................. 3(1)
      vocational regulatory body........................................................................... 3(1)
      witness........................................................................................................ 3(1)




 


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