ACT Civil and Administrative Tribunal Act 2008 (ACT)
ACT Civil and Administrative Tribunal Act 2008
A2008-35
Republication No 40
Effective: 1 January 2024
Republication date: 1 January 2024
Last amendment made by A2023‑57
(republication for amendments by A2023-52)
About this republication
The republished law
This is a republication of the ACT Civil and Administrative Tribunal Act 2008 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 1 January 2024. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 1 January 2024.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).
ACT Civil and Administrative Tribunal Act 2008
Contents
Page
Part 1 Preliminary
1 Name of Act 2
3 Dictionary 2
4 Notes 2
5Offences against Act—application of Criminal Code etc 3
Part 2 Objects and important concepts
6 Objects of Act 4
7 Tribunal principles 4
7A Duties of parties, authorised representatives and others 5
8 Rules of evidence 5
Part 3 Applications to tribunal
9 Applications under authorising laws 6
10 Making an application 6
11 Applications subject to authorising laws 7
12 When no action taken to be decision 7
Part 4 Civil disputes
15 Definitions—pt 4 8
16 Meaning of civil dispute and civil dispute application—Act 9
17 Civil dispute applications 10
18 $25 000 limit on civil dispute applications 10
19 Working out amount of application for jurisdiction 10
20 Abandoning excess to come within jurisdiction 11
21 Jurisdiction by agreement—amounts over $25 000 11
22 Tribunal jurisdiction and powers of Magistrates Court 12
Part 4A Administrative review
Division 4A.1 Definitions—pt 4A
22A Definitions—pt 4A 13
Division 4A.2 Reasons statements
22B Requirement to give reasons statements 14
22C Reasons statement—declaration by tribunal 15
22D Reasons statement declared insufficient 15
22E Certain material not required to be disclosed 16
22F Certain reasons statements—application of divs 4A.3 and 4A.4 17
Division 4A.3 Tribunal hearings—non-disclosure
22G Meaning of prescribed reason—div 4A.3 17
22H Public interest rules excluded from div 4A.3 17
22I Non-disclosure certificates 18
22J Dealing with non-disclosable matters—tribunal 19
22K Non-disclosure certificate without prescribed reason 20
22L Certifying authority may intervene 21
22M Appearance etc of certifying authority 21
Division 4A.4 Non-disclosure—Supreme Court proceedings
22N Dealing with non-disclosable matters—Supreme Court 22
22O Non-disclosure certificate without prescribed reason—Supreme Court 23
Division 4A.5 Miscellaneous
22P Time for deciding land, planning and environment applications 23
22Q People whose interests are affected 24
22R Questions of law 24
22S People who make certain decisions 25
22T Legal and financial assistance for certain people 25
Part 5 Tribunal procedures
Division 5.1 Procedures generally
23 Tribunal decides own procedure 27
24 Rule-making power 27
25 Subject matter of rules 28
26 Tribunal may inform itself 30
27 Procedures in authorising laws 30
28 Time and place of proceedings 30
Division 5.2 Parties
29 Parties to applications 30
30 Representation 31
Division 5.3 Case management
31 Early resolution of applications 31
32 Dismissing or striking out applications 31
33 Preliminary conferences 33
34 Admissibility of evidence given at preliminary conference 33
35 Mediation for applications 34
Division 5.4 Hearings
36 Applications to be heard 35
37 Notice of hearing 35
38 Hearings usually in public 35
39 Hearings in private or partly in private 35
40 Secrecy for private hearings etc 37
41 Powers in relation to witnesses etc 38
41A Protection of lawyers etc and witnesses 40
42 Arrest if people fail to appear 40
43 Executing a warrant 41
45 Taking part other than in person 42
Division 5.5 Other matters
46 Lodging documents 43
47 Amending documents 43
47A Procedure in absence of party 43
48 Costs of proceedings 44
48A Costs of proceedings relating to review of decisions under Freedom of Information Act 2016 46
49 Costs for contravening an order 46
50 Disclosure of material interests by tribunal members 47
51 Reporting of disclosed tribunal member interests to Minister 49
Part 6 Powers and decisions of tribunal
Division 6.1 Powers and decisions generally
52 Decisions by majority or presiding member 50
53 Interim orders 50
54 Decisions without hearing 51
55 Powers of tribunal if parties reach agreement 52
55A Conciliated agreement orders 53
55B Consumer complaints—orders giving effect to conciliation agreements 53
56 Other actions by tribunal 54
57 Powers and decisions in authorising laws 55
58 No limitation on other functions of tribunal 55
59 Tribunal to record details of order and give copy to parties 55
60 Statement of reasons 56
61 Making and effect of orders 57
62 Reserving decisions 57
63 Correction of errors 58
Division 6.2 Powers and decisions in applications for occupational discipline
64 Definitions—div 6.2 58
65 Considerations before making orders on application for occupational discipline 58
66 Orders for occupational discipline 59
67 Kinds of directions for licensed and registered people 60
Division 6.3 Powers and decisions in applications for administrative review
67A Reviewable decision notice 61
67B Internal review notice 62
68 Review of decisions 63
69 Effect of orders for administrative review 63
Part 7 Enforcement and offences
69A Meaning of appropriate court—pt 7 64
70Application of Criminal Code, ch 7 64
71 Enforcement of orders 64
72 Faulty filed orders referred back to tribunal 65
73 Fixed faulty orders 66
74 Failure to comply with order 66
75 Nonpayment of amounts ordered to be paid 67
76 Suspension or cancellation on warning notice 68
Part 8 Referrals and appeals
Division 8.1 Tribunal referrals and appeals
77 Referral of questions of law within tribunal 69
78 Correction requests 70
79 Appeals within tribunal 71
80 Dismissing appeals 71
81 Constitution of appeal tribunal 72
82 Appeal tribunal—general powers 73
Division 8.1A Removal of combined fair work matter
82A Removal from tribunal to Magistrates Court—combined fair work matter 74
Division 8.2 Supreme Court referrals and appeals
83 Removal of applications from tribunal to Supreme Court 74
84 Referral of questions of law to Supreme Court 75
85 Tribunal may not deal with appeals more suited to Supreme Court 75
86 Appeals to Supreme Court 76
87 Sending documents and things to Supreme Court 77
Part 9 The ACT civil and administrative tribunal
Division 9.1 Establishment and constitution
88 Establishment of tribunal 78
89 Constitution of tribunal for applications 78
90 Considerations before allocating tribunal members to application 79
91 President to nominate presiding member 79
92 Tribunal member for an application not available 79
93 Constitution of tribunal to exercise other functions 80
Division 9.2 Tribunal members
94 Appointment of presidential members 80
95 Requirements of appointment—presidential members 82
96 Appointment of non-presidential members 82
97 Appointment of assessors 83
98 Term of appointment 83
99 Ending appointments 84
100 Conditions of appointment generally 84
102 Retirement 85
103 Presidential members not to do other work 85
104 Functions of presidential members generally 86
105 Functions of president 86
105A Advising Attorney-General about systemic problems 87
107 Functions of non-presidential members 87
108 Functions of assessors 87
109 Undertaking before exercising tribunal member functions 88
Division 9.3 Registrar
110 Appointment of registrar 88
111 Functions of registrar—non-presidential functions 89
112 Functions of registrar—other 89
113 Delegation of functions of registrar 90
114 Deputy registrars 90
Part 9A ACAT trust account
115A Definitions—pt 9A 91
115B ACAT trust account 91
115C Use of trust amounts 92
115D Territory entities to pay amounts to ACAT trust account 92
Part 10 Miscellaneous
116 Protection of members etc from liability 93
117 Approved forms 94
118 Regulation-making power 94
Schedule 1 Undertaking for exercise of tribunal member functions 95
Dictionary96
Endnotes
1 About the endnotes 101
2 Abbreviation key 101
3 Legislation history 102
4 Amendment history 109
5 Earlier republications 123
6 Expired transitional or validating provisions 126
ACT Civil and Administrative Tribunal Act 2008
An Act to establish the ACT Civil and Administrative Tribunal to resolve issues arising under certain legislation, and for other purposes
Part 1Preliminary
Name of Act
This Act is the ACT Civil and Administrative Tribunal Act 2008.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.
For example, the signpost definition ‘contract application, for part 4 (Civil disputes)—see section 15.’ means that the term ‘contract application’ is defined in that section for part 4.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
Notes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).
Note 2Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.
Part 2Objects and important concepts
Objects of Act
The objects of this Act are—
(a)to provide for a wide range of matters arising under legislation to be resolved by the ACT Civil and Administrative Tribunal; and
(b)to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c)to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
(d)to ensure that decisions of the tribunal are fair; and
(e)to enhance the quality of decision making under legislation; and
(f)to encourage, and bring about, compliance in decision making under legislation; and
(g)to encourage tribunal members to act in a way that promotes the collegiate nature of the tribunal; and
NoteUnless otherwise provided by this Act, the tribunal for the exercise of functions, other than functions in relation to applications, is made up of the presidential members (see s 93).
(h)to identify and bring to the Attorney-General’s attention systemic problems in relation to the operation of authorising laws.
Tribunal principles
In exercising its functions under this Act, the tribunal must—
(a)seek to ensure the procedures of the tribunal—
(i)are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(ii)are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and
(b)observe natural justice and procedural fairness.
7ADuties of parties, authorised representatives and others
Each party to a proceeding, their authorised representative and anyone else accompanying the party or allowed to participate in the proceeding has a duty—
(a)to cooperate with the tribunal to give effect to the tribunal principles mentioned in section 7; and
(b)to comply with the Act and any directions.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation or rules (see Legislation Act, s 104).
Rules of evidence
To remove any doubt, the tribunal need not comply with the rules of evidence applying in the ACT.
NoteThe tribunal may inform itself in any way it considers appropriate in the circumstances (see s 26).
Part 3Applications to tribunal
Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
NoteA registrar may help a person make an application to the tribunal as the registrar considers appropriate—see s 112 (1) (b).
Making an application
(1)An application to the tribunal must—
(a)comply with the rules; and
(b)be in writing, whether with or without a registrar’s help; and
(c)state the reasons for making the application; and
(d)be lodged at the tribunal registry.
Note 1If a form is approved under s 117 for an application, the form must be used.
Note 2A fee may be determined under the Court Procedures Act 2004, s 13 for this provision.
(2)An application to the tribunal for review of a decision must be made by a person within 28 days after the day the decision to be reviewed is made.
NoteThe rules may prescribe a longer period for making the application (see s 25 (1) (e) and (2)).
(3)However—
(a)if notice of the decision is given to the person later than 5 days after the day the decision is made—the application may be made within 28 days after the day the notice is given; and
(b)if notice of the decision is required to be given to the person under this Act or an authorising law, but is not given—the application may be made within 28 days after the day the person becomes aware of the decision; and
(c)if the decision is taken to have been made under section 12 (When no action taken to be decision)—the application may be made within 28 days after the end of the period or reasonable period mentioned in the section.
Applications subject to authorising laws
The right under an authorising law to make an application to the tribunal is subject to any condition stated in the authorising law.
When no action taken to be decision
(1)This section applies if—
(a)an entity (the decision-maker) is required or allowed to do something under an authorising law; and
(b)the decision-maker has not done the thing within the period for doing the thing under the authorising law or, if no period is stated under the authorising law, a reasonable period for doing the thing; and
(c)the authorising law provides that a person may apply to the tribunal for review of a decision under the authorising law in relation to doing the thing.
(2)The decision-maker is taken to have decided, at the end of the period for doing the thing, not to do the thing.
Part 4Civil disputes
Definitions—pt 4
In this part:
common boundaries determination means a determination under the Common Boundaries Act 1981, and includes a variation of a determination.
contract application means an application in relation to a contract, and includes an application for damages for breach of contract.
damages application means an application for damages for negligence or for any other tort except nuisance or trespass.
debt application means an application for the recovery of a debt.
debt declaration, in relation to an application, means an order declaring that—
(a)the applicant is or is not indebted to the respondent; or
(b)the applicant is or is not indebted to the respondent for a stated amount; or
(c)the applicant is or is not indebted to the respondent for an amount that is more than a stated amount.
goods application means an application in relation to the provision of goods or services, and includes an application for damages for the detention, or return, of goods.
nuisance application means an application for relief for nuisance.
trespass application means an application for relief for trespass to land.
Meaning of civil dispute and civil dispute application—Act
(1)In this Act:
civil dispute means a dispute in relation to which a civil dispute application may be made.
civil dispute application means an application that consists of 1 or more of the following applications:
(a)a contract application;
(b)a damages application;
(c)a debt application;
(d)a goods application;
(e)a nuisance application;
(f)a trespass application;
(g)an application for a debt declaration;
(h)an application for a common boundaries determination;
(i)an application for an order under the Australian Consumer Law (ACT);
(j)an application stated to be a civil dispute application in an authorising law.
(2)To remove any doubt, a civil dispute application does not include a fair work claim.
Note 1A fair work claim may be started in the Magistrates Court (see Magistrates Court Act 1930, pt 4.2A).
Note 2Orders may be sought for the contravention of a civil remedy provision in the Federal Court and Federal Circuit and Family Court of Australia (Division 2) (see Fair Work Act 2009 (Cwlth), s 539).
Civil dispute applications
A person may make a civil dispute application to the tribunal.
$25 000 limit on civil dispute applications
(1)A civil dispute application cannot be made to the tribunal for an amount greater than the tribunal’s jurisdictional limit, unless section 20 (Abandoning excess to come within jurisdiction) or section 21 (Jurisdiction by agreement—amounts over $25 000) allows the application to be made.
(2)The tribunal’s jurisdiction is limited to—
(a)civil dispute applications claiming amounts of not more than $25 000; or
(b)in relation to debt declarations—applications for declarations for debts of not more than $25 000.
NoteFor working out an amount to decide whether the tribunal has jurisdiction—see s 19.
(3)This section does not apply to—
(a)an application for a common boundaries determination; or
(b)an application prescribed by regulation.
Working out amount of application for jurisdiction
(1)In working out the amount claimed, or the amount sought to be declared as a debt, to decide whether the tribunal has jurisdiction in relation to a civil dispute application, the following amounts for the application are to be disregarded:
(a)a claim for interest;
(b)a claim for a lump sum instead of interest.
(2)In working out the amount claimed, to decide whether the tribunal has jurisdiction in relation to a goods application, the following amounts are to be considered:
(a)the value of the goods or services;
(b)any amount claimed for damages for the detention of the goods.
Abandoning excess to come within jurisdiction
(1)This section applies if a person would be entitled to make an application claiming an amount greater than $25 000 in a court of competent jurisdiction.
(2)The person may, by a civil dispute application to the tribunal, abandon the excess by limiting the claim to $25 000.
Jurisdiction by agreement—amounts over $25 000
(1)This section applies if—
(a)a civil dispute application could be made to the tribunal but for section 18 ($25 000 limit on civil dispute applications); and
(b)the parties agree to the application being decided by the tribunal; and
(c)the tribunal is satisfied that the parties understand that the amount of the claim in excess of $25 000 is not being abandoned.
(2)The civil dispute application may be made, and the tribunal has jurisdiction to hear the application, despite section 18.
Tribunal jurisdiction and powers of Magistrates Court
(1)The tribunal has, in relation to civil dispute applications, the same jurisdiction and powers as the Magistrates Court has under the Magistrates Court Act 1930, part 4.2 (Civil jurisdiction).
(2)However, a rule may prescribe provisions of the Magistrates Court Act 1930, part 4.2 that do not apply in relation to the tribunal.
NoteThe Magistrates Court Act 1930, pt 4.2 deals with the civil jurisdiction of the Magistrates Court, including that the Magistrates Court—
(a)may hear and decide any personal action at law, including an action relating to the detention of goods, subject to a monetary limit (see s 257); and
(b)may grant any relief, redress or remedy and must give effect to any defence, counterclaim or set-off in the same way as the Supreme Court (see s 258); and
(c)does not have jurisdiction to hear and decide a proceeding questioning title to land (unless incidental in the proceeding) (see s 264).
Part 4AAdministrative review
Division 4A.1 Definitions—pt 4A
22ADefinitions—pt 4A
certifying authority, in relation to a non-disclosure certificate, means the entity that gives the certificate.
decision-maker, for a reviewable decision, means—
(a)the person who makes the decision; or
(b)if no-one is occupying the decision-maker’s position, or the position no longer exists—someone else declared by the tribunal to be the decision-maker for the decision.
NoteA reference to the occupant of a position (however expressed) includes a reference to anyone for the time being occupying the position (see Legislation Act, s 185).
non-disclosure certificate means a certificate under section 22I.
reasons statement—see section 22B.
reviewable decision means a decision that may be reviewed by the tribunal.
Division 4A.2 Reasons statements
22BRequirement to give reasons statements
(1)This section applies if—
(a)a decision-maker makes a reviewable decision; and
(b)within 28 days after the day the decision is made, a person (the applicant) who may apply for review of the decision asks the decision-maker in writing for a statement of reasons for the decision (a reasons statement).
NoteThe rules may prescribe a longer period for asking for a statement of reasons (see s 25 (1) (e) and (2)).
(2)The decision-maker must give the applicant a written reasons statement for the decision within 28 days after the day the applicant asks for the statement unless—
(a)the decision contains the matters that a reasons statement would contain; or
(b)a document that contains the matters that a reasons statement would contain has already been given to the applicant; or
(c)section 22E (Certain material not required to be disclosed) applies in relation to the decision.
NoteFor what must be included in a statement of reasons, see the Legislation Act, s 179.
22CReasons statement—declaration by tribunal
(1)A person (the declaration applicant) to whom a reasons statement has been given may apply to the tribunal for a declaration under this section.
(2)If the tribunal considers that the information included in the reasons statement is not sufficient, the tribunal may declare that the statement is not sufficient.
Examples—why reasons statement is insufficient
1 insufficient particulars of findings on material questions of fact
2 insufficient reference to evidence or other material on which findings based
3 insufficient particulars of reasons for decision
(3)The declaration must explain why the reasons statement is not sufficient.
(4)A copy of the declaration must be given to the declaration applicant and decision-maker.
22DReasons statement declared insufficient
(1)This section applies if the tribunal declares under section 22C that a reasons statement is insufficient.
(2)The decision-maker must, within 28 days after the day the tribunal makes the declaration, give the person who applied for the declaration an additional statement containing the information, evidence, material or anything else required to make the reasons statement sufficient.
(3)For this Act—
(a)the additional statement is taken to be part of the reasons statement; and
(b)the reasons statement is taken to have been given when the additional statement is given.
22ECertain material not required to be disclosed
(1)This section applies if the Minister certifies in writing that the disclosure of a stated matter proposed to be included in a decision‑maker’s reasons statement is not in the public interest—
(a)because it would involve the disclosure of deliberations or decisions of the Executive or an Executive committee; or
(b)for any other reason stated in the certificate that could form the basis for a claim by the Territory in a judicial proceeding that the matter should not be disclosed.
(2)The decision-maker—
(a)is not required to include the matter in the statement; and
(b)if the statement would be false or misleading if it did not include the matter—is not required to give the statement.
(3)The decision-maker must, within 28 days after the day the Minister makes the certificate, tell the applicant in writing—
(a)if the matter is not included in the reasons statement—that the matter is not included, and the reason for not including the matter; or
(b)if the statement is not given—that the statement will not be given, and the reason for not giving the statement.
22FCertain reasons statements—application of divs 4A.3 and 4A.4
(1)This section applies if—
(a)the Minister has given a certificate in relation to a reasons statement mentioned in section 22E (3) (a) about a decision; and
(b)the decision is the subject of an application for review to the tribunal.
(2)Division 4A.3 and division 4A.4 apply in relation to the certificate as if it were a non-disclosure certificate.
Division 4A.3 Tribunal hearings—non-disclosure
22GMeaning of prescribed reason—div 4A.3
In this division:
prescribed reason, for the giving of a non-disclosure certificate, means a reason mentioned in section 22I in relation to the certifying authority, other than a reason stated in the certificate that could form the basis for a claim in a judicial proceeding that the information or matter should not be disclosed.
22HPublic interest rules excluded from div 4A.3
(1)This division excludes the operation of any rule of law that relates to the public interest and would otherwise apply in relation to the disclosure of information, or a matter stated in a document, in a proceeding before the tribunal.
(2)However, this division does not exclude the operation of the Human Rights Act 2004.
22INon-disclosure certificates
(1)The Minister may certify in writing that the disclosure of information about a stated matter, or a matter stated in a document, is not in the public interest—
(a)because it would involve the disclosure of deliberations or decisions of the Executive or an Executive committee; or
(b)for any other reason stated in the certificate that could form the basis for a claim by the Territory in a judicial proceeding that the information or matter should not be disclosed.
(2)The Commonwealth Attorney-General may certify in writing that the disclosure of information about a stated matter, or a matter stated in a document, is not in the public interest—
(a)because it would prejudice the security, defence or international relations of the Commonwealth; or
(b)because it would involve the disclosure of deliberations or decisions of the Commonwealth Cabinet or a Cabinet committee; or
(c)for any other reason stated in the certificate that could form the basis for a claim by the Commonwealth in a judicial proceeding that the information or matter should not be disclosed.
(3)The Attorney-General of a State or another Territory may certify in writing that the disclosure of information about a stated matter, or a matter stated in a document, is not in the public interest—
(a)because it would involve the disclosure of deliberations or decisions of the Cabinet or Executive, or a committee of the Cabinet or Executive, of the State or other Territory; or
(b)for any other reason stated in the certificate that could form the basis for a claim by the State or other Territory in a judicial proceeding that the information or matter should not be disclosed.
22JDealing with non-disclosable matters—tribunal
(1)This section applies if—
(a)a person (the relevant person) is required under this Act to—
(i)disclose information for a tribunal proceeding; or
(ii)produce a document to, or lodge a document with, the tribunal; and
(b)the information is, or the document states, a matter (the non‑disclosable matter) to which a non-disclosure certificate relates.
(2)The relevant person must disclose the information, or produce or lodge the document, as required.
(3)However, the tribunal must do everything reasonably necessary to ensure that—
(a)the non-disclosable matter is not disclosed to anyone other than a tribunal member hearing the proceeding; and
(b)for a document produced to or lodged with the tribunal—the document is returned to the relevant person.
(4)This section does not prevent the disclosure of the non-disclosable matter to a member of the staff of the tribunal in the course of the exercise of the member’s functions as a staff member.
(5)This section is subject to section 22K and section 87 (Sending documents and things to Supreme Court).
22KNon-disclosure certificate without prescribed reason
(1)This section applies if—
(a)a certifying authority gives a non-disclosure certificate in relation to information or a matter; and
(b)the non-disclosure certificate does not include a prescribed reason for the giving of the certificate.
(2)The certifying authority is a party to the proceeding in which the information or matter is to be considered.
(3)The tribunal must decide whether the information or matter should be disclosed to a party to the proceeding.
(4)Before making the decision, the tribunal must consider the following:
(a)that the parties to a proceeding should be made aware of all relevant matters;
(b)any reason why the disclosure of the information or matter is not in the public interest that is stated in the non-disclosure certificate.
(5)If the tribunal decides that the information or matter should be disclosed, the tribunal must—
(a)give each party to the proceeding written notice of the decision; and
(b)make the information available or allow the part of the document stating the matter to be inspected.
22LCertifying authority may intervene
(1)This section applies if a person (the asked person) is asked a question while giving evidence at a tribunal hearing.
(2)A certifying authority may tell the tribunal that, in the authority’s opinion, answering the question would not be in the public interest for a stated reason mentioned in section 22I (Non-disclosure certificates).
(3)The certifying authority is a party to the proceeding.
(4)The asked person is excused from answering the question unless—
(a)if the reason stated is, or the reasons stated include, a prescribed reason—the Supreme Court, on a reference under section 84, decides that it would not be against the public interest to answer the question; or
(b)in any other case—the tribunal decides that it would not be against the public interest to answer the question.
(5)If the tribunal decides that it would not be against the public interest to answer the question, the tribunal must give each party written notice of the decision.
22MAppearance etc of certifying authority
A certifying authority may—
(a)appear before the tribunal personally, or may be represented before the tribunal by a lawyer or someone else, to tell the tribunal the authority’s opinion under section 22L; or
(b)tell the tribunal the authority’s opinion by giving the tribunal a signed certificate setting out the opinion.
Division 4A.4 Non-disclosure—Supreme Court proceedings
22NDealing with non-disclosable matters—Supreme Court
(1)This section applies if—
(a)a person is required under this Act to—
(i)disclose information for a tribunal proceeding; or
(ii)produce a document to, or lodge a document with, the tribunal; and
(b)the information is, or the document states, a matter (the non‑disclosable matter) to which a non-disclosure certificate relates; and
(c)a Supreme Court proceeding begins in relation to the tribunal proceeding.
NoteThis section also applies to a certificate in relation to a reasons statement mentioned in s 22E (3) (a) (see s 22F).
(2)The Supreme Court must do everything reasonably necessary to ensure that the non-disclosable matter is not disclosed to anyone other than a member of the court as constituted for the proceeding.
NoteAt the end of the Supreme Court proceeding, the court must return a document or thing that was sent to the court by the tribunal to the tribunal (see s 87).
(3)This section does not prevent the disclosure of the non-disclosable matter to a member of the staff of the court in the course of the exercise of the member’s functions as a staff member.
(4)In this section:
Supreme Court proceeding—see section 87.
22ONon-disclosure certificate without prescribed reason—Supreme Court
(1)This section applies if—
(a)a certifying authority gives a non-disclosure certificate in relation to information or a matter; and
(b)the non-disclosure certificate does not include a prescribed reason for the giving of the certificate; and
(c)a question for decision by the Supreme Court is whether the information or matter should be disclosed to a party to the tribunal proceeding; and
(d)the court decides that the information or matter should be disclosed.
(2)The court must make the information available or allow the part of the document stating the matter to be inspected.
NoteThis section also applies to a certificate in relation to a reasons statement mentioned in s 22E (3) (a) (see s 22F).
Division 4A.5 Miscellaneous
22PTime for deciding land, planning and environment applications
(1)This section applies in relation to an application for review by the tribunal of a decision under any of the following Acts:
· Heritage Act 2004
· Planning Act 2023
· Urban Forest Act 2023.
(2)The tribunal must decide the application within 120 days after the day the application is made.
(3)However, the president may, in writing, extend the period for deciding the application if satisfied that the extension is in the interests of justice.
(4)A failure to comply with this section in relation to an application does not affect the validity of a decision on the application.
22QPeople whose interests are affected
(1)In an authorising law, a reference to a person whose interests are affected by a decision (however described) includes a reference to an unincorporated body, the Territory, the Commonwealth, a territory authority or Commonwealth authority.
(2)A body has interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the body.
(3)Subsection (2) does not apply in relation to a decision given before the body was formed or before the objects or purposes of the body included the matter.
(4)The tribunal may decide whether or not a person’s interests are affected by a decision, and the tribunal’s decision is conclusive.
(5)In this section:
Commonwealth authority means a body established under a Commonwealth law.
22RQuestions of law
For this Act, each of the following is a question of law:
(a)the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding;
(b)the question whether the answering by a person of a question would be contrary to the public interest.
22SPeople who make certain decisions
(1)In this Act or an authorising law, a reference to a person (the decision‑maker) who makes an internally reviewable decision or reviewable decision includes, if the decision-maker is an unincorporated body, the Territory or a territory authority, a reference to the body, Territory or authority.
(2)In this section:
internally reviewable decision means a reviewable decision that, under an authorising law, may be internally reviewed or reconsidered before review by the tribunal.
reviewable decision means a decision that, under an authorising law, is reviewable by the tribunal.
22TLegal and financial assistance for certain people
(1)This section applies to a person who, in relation to a matter arising under this part—
(a)makes, or proposes to make, an application to the tribunal; or
(b)is a party to an application before the tribunal made by another person; or
(c)proposes to begin a proceeding for review of a decision, or is a party to a proceeding, before a court.
(2)The person may apply to the Minister for assistance in relation to the application or proceeding.
(3)The Minister may authorise the provision by the Territory of legal or financial assistance determined by the Minister in relation to the application or proceeding if satisfied that—
(a)it would involve hardship to the person to refuse the application; and
(b)in all the circumstances, it is reasonable that the application be granted.
(4)The Minister may impose conditions on the authorisation to provide assistance.
Part 5Tribunal procedures
Division 5.1 Procedures generally
Tribunal decides own procedure
(1)The tribunal may decide its own procedure at any stage in dealing with an application if no procedure is prescribed for the application under this Act or an authorising law.
Note 1The procedures of the tribunal must be as simple, quick, inexpensive and informal as is consistent with achieving justice (see s 7 (a)).
Note 2A reference to an Act includes a reference to any statutory instrument made or in force under the Act (see Legislation Act, s 104).
(2)The tribunal may, by order, dispense with the application of a provision of the rules to a particular proceeding on any conditions it considers appropriate.
(3)The tribunal may make an order under subsection (2) on application by a party, another person or on its own initiative.
Rule-making power
(1)The tribunal may make rules in relation to the practice and procedure of the tribunal and the tribunal registry.
Note The power to make rules for the tribunal includes power to make rules in relation to any matter necessary or convenient to be prescribed for carrying out or giving effect to the jurisdiction of the tribunal under any law of the Territory or Commonwealth that authorises or requires anything to be done in or in relation to the tribunal (see Legislation Act, s 45).
(2)In making a rule, the tribunal must consider—
(a)the requirement to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
(b)the requirement for procedures of the tribunal to be as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(c)rules dealing with similar matters under the Court Procedures Rules 2006; and
(d)if the rule is a kind mentioned in section 25 (1) (e)—the desirability of being able to rely on the words in the Act.
(3)This section does not limit the power of the tribunal or a tribunal member to control proceedings.
(4)A rule is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
(5)The tribunal must provide the rule‑making committee, under the Court Procedures Act 2004, with a copy of a rule made by the tribunal.
Subject matter of rules
(1)The rules the tribunal may make under section 24 include, but are not limited to, rules to do the following:
(a)to allow the tribunal to make orders in a short form;
(b)to prescribe how the tribunal may deal with applications and other proceedings, including when a tribunal may stop a person representing another person before the tribunal;
(c)to facilitate the early resolution of matters arising in applications;
Example
The tribunal may make rules about referring an application to an agency that the tribunal considers is more appropriate to handle the application.
(d)to prescribe the functions, and limits on the functions, of a registrar;
(e)to prescribe a time for doing a thing by a person that is longer than the time for doing the thing provided under this Act or an authorising law—
(i)in relation to an application to the tribunal; but
(ii)not in relation to any thing to be done by the tribunal;
Example
a rule about the time for filing an application
(f)to allow the tribunal to make orders about costs for complying with subpoenas;
(g)to prescribe when the tribunal must make a person a party to a proceeding before the tribunal;
(h)to prescribe what happens if a decision that is the subject of an application for review to the tribunal is reconsidered.
(2)If a rule of a kind mentioned in subsection (1) (e) prescribes a time for doing something that is longer than the time for doing the thing set out in this Act or an authorising law, the time for doing the thing is the longer time prescribed by rule.
(3)To remove any doubt, a rule of a kind mentioned in subsection (1) (e) cannot prescribe a time for doing a thing that is longer than the time prescribed by an authorising law if the authorising law provides that the thing cannot be done in the longer time.
NoteAny procedure under an authorising law for dealing with an application prevails over the procedures set out in the rules for dealing with the application (see s 27). For example, the Planning Act 2023, s 507 (4) provides, in relation to applications for review by third parties, that the period for making an application for review of a decision under that Act cannot be extended. That provision prevails over any rule to extend the time for making an application under that Act.
Tribunal may inform itself
The tribunal may inform itself in any way it considers appropriate in the circumstances.
Examples
1 asking an assessor for expert advice on a matter
2 relying on previous experience in relation to the matter
NoteThe tribunal must observe natural justice and procedural fairness (see s 7).
Procedures in authorising laws
(1)An authorising law may set out procedures for dealing with an application made under the authorising law.
(2)Any procedure under an authorising law for dealing with an application prevails over the procedures set out in this Act or the rules for dealing with the application, to the extent of any inconsistency.
(3)To remove any doubt, this Act is not inconsistent with an authorising law only because 1 Act deals with a matter and the other does not.
Time and place of proceedings
The tribunal sits at the times and places the president decides.
Division 5.2 Parties
Parties to applications
(1)The parties to an application are the applicant and the respondent, unless this section or an authorising law otherwise provides.
(2)The parties to an application for occupational discipline are the entity bringing the application and the person to whom the application relates.
(3)The parties to an application for review of a decision are the applicant and the decision-maker.
(4)The party to an application for an advisory opinion is the applicant.
(5)The tribunal may, by written notice to the parties to an application, join a person as a new party to the application if—
(a)the person has an interest in the application; or
(b)for an appeal—the person was a party to the original decision.
(6)The tribunal must not join a person as a new applicant to an application if the person is not entitled to apply to the tribunal under the authorising law under which the application is made.
Example—s (6)
Under the Planning Act 2023, s 506 only an entity mentioned in relation to a decision in that Act may apply for review of a decision.
Representation
A person may, in relation to an application before the tribunal, appear in person or be represented by a lawyer or someone else (other than a person prescribed under the rules).
Note The rules may make provision about when the tribunal may stop a person representing another person before the tribunal (see s 25 (1) (b)).
Division 5.3 Case management
Early resolution of applications
If the tribunal considers it appropriate, the tribunal may take all reasonably practicable steps to resolve matters arising in an application before the application is heard.
Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
NoteIf the application is for review of a decision under the Heritage Act 2004, the Planning Act 2023 or the Urban Forest Act 2023, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4)The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
NoteThe tribunal must observe natural justice and procedural fairness (see s 7).
Preliminary conferences
(1)The tribunal may require the parties to an application to attend a preliminary conference.
(2)The tribunal may make inquiries, or require further information from a party, for or during a preliminary conference.
Example
The tribunal may talk to the person who made a complaint to which an application for occupational discipline relates.
NoteConsequences for failure to comply with an order of the tribunal are set out in s 48 (2) (c) and s 74.
Admissibility of evidence given at preliminary conference
(1)Evidence given by a person before the tribunal during a preliminary conference is not admissible in evidence against the person in a criminal proceeding, other than a proceeding for—
(a)an offence in relation to the falsity or misleading nature of the evidence; or
(b)an offence against the Criminal Code, chapter 7 (Administration of justice offences).
(2)Also, any information obtained, directly or indirectly, because of the giving of further information by a person in accordance with a requirement under section 33 (2), or the giving of evidence by a person before the tribunal during a preliminary conference, is not admissible in evidence against the person in a civil or criminal proceeding, other than a proceeding for—
(a)an offence in relation to the falsity or the misleading nature of the information or evidence; or
(b)an offence against the Criminal Code, chapter 7 (Administration of justice offences).
(3)Evidence of any words spoken at a preliminary conference must not be admitted in a proceeding under this Act.
Mediation for applications
(1)This section applies if the tribunal considers that a matter to which an application relates—
(a)is suitable for mediation; and
(b)is reasonably likely to be resolved by mediation.
(2)The tribunal may, by order—
(a)refer the matter to an accredited mediator for mediation; and
(b)require the parties to attend the mediation.
(3)The tribunal may make the order on its own initiative or on application by a party.
Note 1Consequences for failure to comply with an order of the tribunal are set out in s 48 (2) (c) and s 74.
Note 2The Court Procedures Act 2004, pt 5A (Mediation) applies to a mediation ordered under this section.
Division 5.4 Hearings
Applications to be heard
The tribunal must hear each application made to it unless the tribunal—
(a)refuses to hear the application, or part of the application, or dismisses it; or
(b)decides not to hold a hearing.
Note 1The tribunal may refuse to hear an application, or part of an application, or dismiss it under s 32 (2) (a) and (b) and decide not to hold a hearing under s 54.
Note 2The tribunal may make rules to facilitate the early resolution of matters arising in applications, including rules about referring an application to an agency that the tribunal considers is more appropriate to handle the application (see s 25 (1) (c)).
Notice of hearing
A registrar must give written notice of the time and place for the hearing of an application to the parties.
Hearings usually in public
(1)The hearing of an application by the tribunal must be in public.
(2)However, this section does not apply to a hearing, or part of a hearing, if the tribunal makes an order under section 39 in relation to the hearing, or part.
Hearings in private or partly in private
(1)This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.
NoteSee s (5) in relation to competing interests.
(2)The tribunal may, by order, do 1 or more of the following:
(a)direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;
(b)give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;
(c)give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.
(3)The tribunal may make an order under subsection (2) on application by a party or on its own initiative.
(4)A person must not contravene an order under subsection (2) (b) or (c).
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(5)For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private—
(a)to protect morals, public order or national security in a democratic society; or
(b)because the interest of the private lives of the parties require the privacy; or
(c)to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
Secrecy for private hearings etc
(1)In this section:
court includes any entity with power to require the production of documents or answering of questions.
divulge includes communicate.
produce includes allow access to.
protected information means information that is disclosed to, or obtained by, a person to whom this section applies if—
(a)the information is disclosed to the person because of the exercise of a function under this Act by the person or someone else; and
(b)at disclosure, the function is being exercised in relation to—
(i)a hearing held in private; or
(ii)evidence, or a document, to which a direction under section 39 (2) (b) or (c) applies.
(2)This section applies to a person who is, or has been—
(a)a tribunal member; or
(b)a member of the staff of the tribunal; or
(c)acting under the direction or authority of the tribunal.
(3)The person commits an offence if—
(a)the person—
(i)makes a record of protected information; and
(ii)is reckless about whether the information is protected information; or
(b)the person—
(i)does something that divulges protected information; and
(ii)is reckless about whether—
(A)the information is protected information; and
(B)doing the thing would result in the information being divulged.
Maximum penalty: 50 penalty units, imprisonment for 6 months or both.
(4)This section does not apply if the record is made, or the information is divulged—
(a)under this Act or another territory law; or
(b)in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law.
(5)The person need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another territory law.
Powers in relation to witnesses etc
(1)The tribunal may, by subpoena given to a person, require the person, at a stated time and place, to appear before the tribunal to do 1 or more of the following:
(a)produce a stated document or other thing relevant to the hearing;
(b)give evidence.
Note 1Documents may be produced electronically in certain circumstances (see Electronic Transactions Act 2001).
Note 2If a form is approved under s 117 for this provision, the form must be used.
(2)A person is taken to have complied with a subpoena under subsection (1) (a) if the person gives the document or other thing to the tribunal before the date stated in the subpoena for its production.
(3)The tribunal may give a party leave to inspect, or make a copy of, a document produced under a subpoena.
(4)The presiding member at the hearing of an application may require a person appearing before the tribunal to give evidence to do 1 or more of the following:
(a)take an oath;
(b)answer a question relevant to the hearing;
(c)produce a stated document or other thing relevant to the hearing.
Note 1The Legislation Act, s 170 and s 171 deal with the application of the privilege against self-incrimination and client legal privilege.
Note 2Oath includes affirmation and take an oath includes make an affirmation (see Legislation Act, dict, pt 1).
(5)If a subpoena is issued to give evidence under subsection (1) (b), the subpoena must—
(a)state the time and place at which the person must appear before the tribunal; and
(b)include—
(i)a statement to the effect that the person may be represented before the tribunal by a lawyer or someone else; and
(ii)if the rules prescribe someone who may not represent the person—a statement that the other person may not represent the person; and
(iii)a statement to the effect that the person may wish to obtain legal advice in relation to the subpoena; and
(c)contain a statement to the effect that the person may apply to the tribunal for a direction under section 45 (Taking part other than in person).
NoteIf a form is approved under s 117 for a subpoena, the form must be used.
(6)On application by a party or someone else having a sufficient interest, the tribunal may set aside a subpoena completely or partly.
(7)The tribunal is taken to be a court of competent jurisdiction for the Health Records (Privacy and Access) Act 1977 when exercising its powers under this section.
41AProtection of lawyers etc and witnesses
(1)A lawyer or anyone else appearing before the tribunal for a party has the same protection and immunity as a barrister has in appearing for a party in a proceeding in the Supreme Court.
Expired transitional or validating provisions
This Act may be affected by transitional or validating provisions that have expired. The expiry does not affect any continuing operation of the provisions (see Legislation Act 2001, s 88 (1)).
Expired provisions are removed from the republished law when the expiry takes effect and are listed in the amendment history using the abbreviation ‘exp’ followed by the date of the expiry.
To find the expired provisions see the version of this Act before the expiry took effect. The ACT legislation register has point-in-time versions of this Act.
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