Civil and Administrative Tribunal Act 2013

This Act is the Civil and Administrative Tribunal Act 2013.

This Act commences on the date of assent to this Act.

The objects of this Act are—

to establish an independent Civil and Administrative Tribunal of New South Wales to provide a single point of access for most tribunal services in the State, and

to enable the Tribunal—

to make decisions as the primary decision-maker in relation to certain matters, and

to review decisions made by certain persons and bodies, and

to determine appeals against decisions made by certain persons and bodies, and

to exercise such other functions as are conferred or imposed on it, and

to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and

to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and

to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and

to ensure that the Tribunal is accountable and has processes that are open and transparent, and

to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members.

In this Act—

administrative review application, administrative review decision, administrative review jurisdiction, administratively reviewable decision and administrator—see section 30.

administrator, of the Guardian Ad Litem Panel, means the person responsible for the constitution of the Guardian Ad Litem Panel under the Children and Young Persons (Care and Protection) Act 1998.

ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including—

a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and

a decision concerning the awarding of costs in proceedings.

appeal jurisdiction of the Tribunal—see section 28(2)(c).

Appeal Panel means an Appeal Panel of the Tribunal.

appealable external decision—see section 31.

application to the Tribunal—see section 39.

authorised official—see section 75.

civil penalty means a monetary or pecuniary penalty that is imposed on a person (except as punishment for an offence) for a contravention of either a provision of legislation or an order or other decision of a person or body.

civil penalty provision of this Act—see section 77.

decision—see section 5.

decision-maker—see section 6.

Deputy President means a Deputy President of the Tribunal.

Division of the Tribunal means a Division of the Tribunal specified in section 16(1).

Division Head of a Division of the Tribunal means the member who is appointed by or under this Act as the Division Head of that Division.

Division List means a list established by or under this Act for the management of a class of proceedings allocated to a Division of the Tribunal.

Division member, in relation to a Division of the Tribunal, means a member who is assigned by or under this Act to that Division.

Division Schedule for a Division of the Tribunal—see section 17.

enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that—

provides for applications or appeals to be made to the Tribunal with respect to a specified matter or class of matters, or

otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.

enforcement jurisdiction—see section 33.

establishment day—see section 7.

external appeal and external appeal jurisdiction—see section 31.

external decision-maker means a decision-maker who is external to the Tribunal.

function includes a power, authority or duty, and exercise a function includes perform a duty.

general application, general decision and general jurisdiction—see section 29.

general member means a general member of the Tribunal.

Guardian Ad Litem Panel has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.

interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following—

the granting of a stay or adjournment,

the prohibition or restriction of the disclosure, broadcast or publication of matters,

the issue of a summons,

the extension of time for any matter (including for the lodgment of an application or appeal),

an evidential matter,

the disqualification of any member,

the joinder or misjoinder of a party to proceedings,

the summary dismissal of proceedings,

the granting of leave for a person to represent a party to proceedings,

any other interlocutory issue before the Tribunal.

internal appeal, internal appeal jurisdiction and internally appealable decision—see section 32.

legislation means an Act or a statutory rule.

List Manager for a Division of the Tribunal—see section 19.

member means a member of the Tribunal.

non-presidential member—see section 9(3).

NSW judicial officer means any of the following—

a Judge of the Local Court,

a Judge of the District Court,

a judicial member of the Industrial Relations Commission,

a Judge of the Land and Environment Court,

a Judge of the Supreme Court.

occasional member—see section 9(5).

President means the President of the Tribunal.

presidential member—see section 9(2).

principal member means a principal member of the Tribunal.

principal registrar means the person employed in the Public Service as the principal registrar of the Tribunal.

procedural rules means each of the following—

the Tribunal rules,

the regulations in their application to the practice and procedure of the Tribunal.

Note.

Section 25(5) provides that in the event of an inconsistency between a provision of the regulations and a provision of the Tribunal rules, the provision of the regulations prevails to the extent of the inconsistency.

registrar means the principal registrar or any other person employed in the Public Service as a registrar of the Tribunal.

resolution process—see section 37.

Rule Committee means the Rule Committee of the Tribunal.

senior member means a senior member of the Tribunal.

term member—see section 9(4).

the Tribunal or NCAT means the Civil and Administrative Tribunal of New South Wales established by this Act.

Tribunal rules means the rules of the Tribunal made by the Rule Committee.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference in this Act (however expressed) to the exercise by the Tribunal of its functions in relation to other legislation includes a reference both to its functions under the legislation and its functions under this Act in relation to the legislation.

A reference (however expressed) in this Act to a decision made under other legislation is taken to include a reference to any decision made in the exercise of functions identified by the legislation.

Any provisions of this Act that are expressed to be subject to the procedural rules have effect subject to any exceptions, limitations or other restrictions specified by the procedural rules.

Subject to section 17(3), procedural rules that make provision as referred to in subsection (4) are not inconsistent with this Act.

Note.

Section 17(3) provides that the provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provisions of this Act or the provisions of the procedural rules. See also item 23 of Schedule 7. Also, the procedural rules cannot be inconsistent with enabling legislation. See sections 25(1) and 90(2)(a).

A reference in this Act to the Administrative Decisions Review Act 1997 is a reference to the Administrative Decisions Tribunal Act 1997, as renamed and amended, on and from the establishment day.

Note.

See the amendments made by Schedule 2 (Repeal and amendment of certain legislation relating to Administrative Decisions Tribunal) to the Civil and Administrative Tribunal Amendment Act 2013.

Notes included in this Act do not form part of this Act.

In this Act, decision includes any of the following—

making, suspending, revoking or refusing to make an order or determination,

giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

imposing a condition or restriction,

making a declaration, demand or requirement,

retaining, or refusing to deliver up, an article,

doing or refusing to do any other act or thing.

For the purposes of this Act—

a decision is made under enabling legislation or this Act if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation or this Act, and

a decision that purports to be made under enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act even if the decision was beyond the power of the decision-maker to make, and

a refusal of a decision-maker to make a decision under enabling legislation or this Act because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation or this Act is taken to be a decision made under the enabling legislation or this Act to refuse to make the decision requested, and

a failure by a decision-maker to make a decision within the period specified by enabling legislation or this Act for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.

For the purposes of this Act, the decision-makerin relation to a decision is the person or body that makes (or is taken to have made) the decision for the purposes of enabling legislation or this Act.

The person or body specified by enabling legislation as a person or body whose decisions are reviewable or appealable is taken to be the only decision-maker in relation to the making of such a decision even if some other person or body also had a role in the making of the decision.

The Civil and Administrative Tribunal of New South Wales (which may also be called NCAT) is established by this Act on the establishment day.

The establishment day is—

1 January 2014, or

such later day as may be fixed as the establishment day by a proclamation made under this section.

The Governor may, by proclamation published on the NSW legislation website, fix a day that is later than 1 January 2014 as the establishment day for the purposes of this section.

The Governor may, by further proclamation published on the NSW legislation website, revoke a previous proclamation fixing a day as the establishment day and fix a different day that is later than 1 January 2014 as the establishment day.

A proclamation under this section has effect only if published before the establishment day applying for the time being.

A person may be appointed to any office or other position under this Act before the establishment day.

Without limiting subsection (1), the following appointments may be made before the establishment day—

appointment as the President or as any other kind of member,

appointment as a Division Head of a Division of the Tribunal that will be created on the establishment of the Tribunal,

appointment as a List Manager of a Division of the Tribunal that will be created on the establishment of the Tribunal,

appointment as a member of the Rule Committee,

appointment as a registrar (including as the principal registrar) or other member of staff of the Tribunal.

A member appointed before the establishment day may also be assigned by or under this Act to a Division of the Tribunal that will be created on the establishment of the Tribunal.

Without limiting subsections (1) and (2), the Rule Committee may be constituted before the establishment day and may before that day—

meet and transact business as if the Tribunal (and its Divisions) had been established, and

without limiting paragraph (a), make Tribunal rules that will come into force on or after the establishment day.

Any appointment or assignment made before the establishment day has effect on and from the day specified in the instrument of appointment or assignment as the date of appointment or assignment as if the Tribunal (including its Divisions) had been established.

Despite clause 5 of Schedule 2, a member of an existing tribunal (within the meaning of Part 2 of Schedule 1) who is appointed as a member of the Tribunal before the establishment day is not entitled to be paid remuneration as a member of the Tribunal while he or she continues to receive remuneration as a member of the existing tribunal.

The Tribunal is to consist of the following members—

the President,

Deputy Presidents,

principal members,

senior members,

general members.

The President and the Deputy Presidents are referred to in this Act as presidential members.

The principal members, senior members and general members are referred to in this Act as non-presidential members.

A member appointed by or under this Act for a term is referred to in this Act as a term member.

A member appointed by or under this Act to be a member for the purposes of specified proceedings is referred to in this Act as an occasional member.

The President is to be appointed as a term member.

Schedule 2 sets out additional provisions with respect to members.

A person may be appointed as a term member if the person is qualified to be appointed as a member of the kind concerned.

Note.

Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications.

A presidential member appointed as a term member is to be appointed by the Governor by commission under the public seal of the State.

Note.

The President must be appointed as a term member. See section 9(6).

A non-presidential member appointed as a term member is to be appointed by the Minister by written instrument.

The instrument of appointment of a term member is to specify—

whether the member has been appointed as the President, a Deputy President, principal member, senior member or general member, and

the term for which the member has been appointed.

A term member may be appointed on a full-time basis or a part-time basis.

However, the President is taken to be appointed on a full-time basis.

The President may, by written instrument, appoint a person to be an occasional member in relation to particular proceedings before the Tribunal if—

the person is qualified to be appointed as a member of the kind concerned, and

the President is satisfied that the appointment of the person as a member is necessary to enable the Tribunal to be properly constituted to exercise its functions in the proceedings.

Note.

Section 13 makes general provision with respect to qualifications for appointment. A Division Schedule for a Division of the Tribunal may, in some cases, make special provision for the assignment of members to that Division based on particular skills, expertise or qualifications.

Without limiting clause 12 of Schedule 2, the President may delegate the function of appointing occasional members to sit as Division members for a Division of the Tribunal to the Division Head of the Division or a List Manager of a Division of the Tribunal.

The instrument of appointment of an occasional member is to specify—

whether the member has been appointed as a Deputy President, principal member, senior member or general member, and

the proceedings in relation to which the member has been appointed as an occasional member.

An occasional member who is appointed to be a member in relation to proceedings that are allocated to a Division of the Tribunal is taken to be assigned as a Division member of that Division.

A person who is appointed as an occasional member holds office as such until the proceedings in relation to which the member has been appointed as an occasional member have been finally determined, unless the person sooner vacates office.

The proceedings in relation to which an occasional member has been appointed as an occasional member are not finally determined for the purposes of subsection (5) until—

the proceedings are withdrawn by a party before the substantial merits of the proceedings are considered by the Tribunal, or

the proceedings are dismissed by the Tribunal (as constituted by or with the member) before the substantial merits of the proceedings are considered by the Tribunal (including, where required, the giving of reasons for the dismissal and the determination of costs), or

the Tribunal (as constituted by or with the member) has completed all the processes necessary to decide the substantial merits of the proceedings (including, where required, the giving of reasons for the decision and the determination of costs),

whichever occurs first.

The Governor may, by commission under the public seal of the State, appoint as an Acting Deputy President a person qualified for appointment as a Deputy President if satisfied that the appointment is necessary to enable the Tribunal to exercise its functions effectively during the period of the appointment.

The Minister may, by written instrument, appoint as an acting principal member, acting senior member or acting general member a person qualified for appointment as a principal member, senior member or general member (as the case requires) if satisfied that the appointment is necessary to enable the Tribunal to exercise its functions effectively during the period of the appointment.

The person’s appointment is for the period (not exceeding 12 months) specified in the instrument of appointment.

An Acting Deputy President, acting principal member, acting senior member or acting general member has the functions of, and is taken to be, a Deputy President, principal member, senior member or general member (as the case requires) subject to any conditions or limitations specified in the instrument of appointment.