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Administrative Review Tribunal Act 1996 (NI)

  • Act Applied Law - C2017Q00004
  • In force - Superseded Version
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Act No. 15, 1996
Act Applied Law as amended, incorporating amendments up to Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015)
This is an Act of the previous Norfolk Island Legislative Assembly that was continued in force under s16 and 16A of the Norfolk Island Act 1979.
Administered by: Infrastructure, Transport, Cities and Regional Development
Registered 20 Jan 2017
Start Date 20 Jan 2017
End Date 31 Dec 2021

 

NORFOLK                            ISLAND

 

Administrative Review Tribunal Act 1996

No. 15, 1996

Compilation No. 3

Compilation date:                              20 January 2017

Includes amendments up to:             Norfolk Island Continued Laws Ordinance 2015
(No. 2, 2015)

 

 

 

 

 

 

 

 

 


 

NORFOLK                            ISLAND

 

ADMINISTRATIVE REVIEW TRIBUNAL ACT 1996

 

TABLE OF PROVISIONS

PART 1 — PRELIMINARY

         1.      Short title

         2.      Commencement

         3.      Interpretation

PART 2 —  ESTABLISHMENT OF ADMINISTRATIVE REVIEW

TRIBUNAL

         4.      Establishment of Tribunal

         5.      Appointment of members of Tribunal

         6.      Arrangement of business

         7.      Constitution of Tribunal

         8.      Presiding Member

         9.      Delegation

       10.      Procedure of the Tribunal

       11.      Representation before the Tribunal

       12.      Powers of the Tribunal

       13.      Secretary of the Tribunal

PART 3 — REVIEW OF DECISIONS

       14.      Tribunal may review certain decisions

       15.      Certain decisions not reviewable

       16.      Persons who may apply to the Tribunal

       17.      Person affected by decision may obtain reasons for decision

       18.      Circumstances where applicant not entitled to obtain reasons

       19.      Disclosure contrary to public interest

       20.      Statement not containing adequate particulars, etc

       21.      Tribunal to determine persons whose interests are affected by decision

       22.      Application for review

       23.      Parties to Proceeding before Tribunal

       24.      Conferences

       25.      Circumstances in which hearing may be dispensed with

       26.      Certain documents and information not required to be disclosed and questions not required to be answered

       27.      Lodging material documents

       28.      Power of Tribunal to obtain additional statements

       29.      Opportunity to make submissions

       30.      Power of Tribunal if parties reach agreement

       31.      Review by the Tribunal

       32.      Hearing in public subject to exceptions

       33.      Stay of proceedings

       34.      Appeal to Supreme Court

       35.      Operation of decision that is subject to appeal

       36.      Reference of question of law

       37.      Sending of documents to, and disclosure of documents by, the Supreme Court

PART 4 — MISCELLANEOUS

       38.      Failure to comply with summons

       39.      Refusal to be sworn or to answer questions

       40.      False or misleading evidence

       41.      Contempt of Tribunal

       42.      Protection of members, legal practitioner and witnesses

       43.      Witness, etc fees

    43A.      Tribunal may order costs

       44.      Regulations

 


 

NORFOLK                               ISLAND

 

 

Administrative Review Tribunal Act 1996

 

An Act to provide for review of administrative decisions

 

BE IT ENACTED  by the Legislative Assembly of Norfolk Island as follows —

PART 1 — PRELIMINARY

Short title

      1.         This Act may be cited as the Administrative Review Tribunal Act 1996.

Commencement

      2.         (1)        Section 1 and this section commence on the day on which notification of Assent is published in the Gazette.

                  (2)        The remaining provisions commence on a day or days fixed by the Administrator by notice in the Gazette.

Interpretation

      3.         (1)        In this Act, unless the contrary intention appears —

      “approved” means approved in writing by the Minister;

      “commencement day” means the day fixed under subsection 2(2) for the commencement of section 4 of the Act;

      “Deputy President” means the Deputy President of the Tribunal;

      “enactmentmeans:

                  (a)        a section 19A Ordinance (within the meaning of the Norfolk Island Act 1979 of the Commonwealth); or

                  (b)        an Ordinance continued in force by section 16 or 16A (disregarding subsection 16A(4)) of that Act, as the Ordinance is in force from time to time; or

                  (c)        a Legislative Assembly law continued in force by section 16A (disregarding subsection 16A(3)) of that Act, as the law is in force from time to time; or

                  (d)       a New South Wales law as in force in Norfolk Island under section 18A of that Act.

      “member” means a person appointed to be the President, Deputy President, senior member or ordinary member of the Tribunal

      “Officer of the Tribunal” means the Secretary or a person appointed under subsection 24(4);

      “President” means the President of the Tribunal;

      “Secretary” means the person appointed to be the Secretary of the Tribunal under subsection 13(1), and includes the Deputy Secretary;

“senior member” means the senior member of the Tribunal;

      “Tribunal” means the Administrative Review Tribunal established under section 4.

 


 

                  (2)        Where a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, this Act applies as if that board, committee or other body were a person empowered to make those decisions.

                  (3)        A reference in this Act to a decision includes a reference to —

(a)        making, suspending, revoking or refusing to make an order or determination; or

(b)        giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; or

(c)        issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; or

(d)       imposing a condition or restriction; or

(e)        making a declaration, demand or requirement; or

(f)        retaining, or refusing to deliver up, an article; or

(g)        doing or refusing to do any other act or thing.

                  (4)        For the purposes of a reference in this Act to the furnishing to a person of a document or statement, or the service on or giving to a person of a notice or other notification, a document or statement shall be deemed to be furnished to a person, or a notice or other notification shall be deemed to be served on or given to a person, if it is served by post.

PART 2 — ESTABLISHMENT OF ADMINISTRATIVE REVIEW TRIBUNAL

Establishment of Tribunal

      4.         (1)        The Administrative Review Tribunal is established.

                  (2)        The Tribunal consists of the President, the Deputy President, the senior member and ordinary members.

                  (3)        The President shall be the person appointed to be the Chief Magistrate under the Court of Petty Sessions Act 1960.

                  (4)        The Deputy President must be a person resident in Norfolk Island who is enrolled as a Legal Practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.

                  (5)        The senior member must be a person who is enrolled as a Legal Practitioner of the High Court or of the Supreme Court of a State or Territory and has been so enrolled for not less than 5 years.

 

Appointment of members of Tribunal

      5.         (1)        The Deputy President, the senior member and ordinary members of the Tribunal, but not the President, shall be appointed by the Administrator by notice in the Gazette.

                  (2)        A member, other than the President, holds office for the period specified in the instrument of appointment, but is eligible for re-appointment.

                  (3)        A member, other than the President, may resign office by written notice delivered to the Administrator.

Arrangement of business

      6.         (1)        Subject to this Act and the Regulations, the President is responsible for ensuring the orderly and expeditious discharge of the business of the Tribunal.

                  (2)        Without limiting the operation of subsection 6(1) the President may give directions as to —

(a)        the arrangement of the business of the Tribunal;  and

(b)        the members who are to constitute the Tribunal for the purposes of a particular proceeding;  and

(c)        the procedure of the Tribunal.

                  (3)        The Deputy President shall exercise the powers and functions of the President except the power of delegation  —

(a)        when the President is not present on Norfolk Island; and

(b)        if the President is unable to be present at a sitting of the Tribunal for any reason including —

(i)         being not present on Norfolk Island; or

(ii)        through incapacity

Constitution of Tribunal

      7.         (1)        Subject to any other provisions made in this Act or in any other enactment with respect to the constitution of the Tribunal in relation to particular proceedings, the Tribunal shall, for the purpose of the exercise of its powers in relation to a matter, be constituted by —

(a)        the President, or the Deputy President or the senior member alone; or

(b)        2 or 3 members of whom at least one is the President, or the Deputy President or the senior member.

                  (2)        A member who has presided over a conference under section 24 in respect of an application for review may only be included in the members constituting the Tribunal for the purpose of dealing with the application if the parties to the proceeding agree.

Presiding member

      8.         The Tribunal shall if it is constituted by more than one member be presided over by —

(a)        the President; or

(b)        if it does not include the President — the Deputy President; or

(c)        if it does not include the President or the Deputy President — the senior member;

(d)       if it does not include the President, Deputy President or senior member — an ordinary member nominated by the President to so preside.

Delegation

      9.         (1)        The President may, by signed instrument, delegate to a member all or any of his or her powers under this Act.

                  (2)        A delegation may be made to a member under this section notwithstanding that a delegation to another member is, or delegations to other members are, in force under this section.

                  (3)        A delegation under this section does not prevent the exercise of a power by the President.

Procedure of the Tribunal

      10.       (1)        Subject to this Act, the Tribunal may determine its own procedure.

                  (2)        The Tribunal shall conduct its business with as little formality and technicality, and with as much speed, as is consistent with the proper consideration, in accordance with this Act, of matters before it.

                  (3)        The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

                  (4)        The President may make Rules, not inconsistent with this Act, for or in relation to the practice and procedure of the Tribunal.

                  (5)        Rules referred to in subsection 10(4), or an amendment or revocation of Rules, are a disallowable instrument for the purposes of section 41A of the Interpretation Act 1979.

Representation before the Tribunal

      11.       (1)        A party to an application may appear personally before the Tribunal or may be represented by another person, whether or not a legal practitioner.

                  (2)        Where a party to an application is represented by a person who is not a legal practitioner, that person is not entitled to a fee or reward for representing that party.

Powers of the Tribunal

      12.       (1)        The Tribunal may —

(a)        take evidence on oath or affirmation and receive documents and things in evidence;  and

(b)        proceed in the absence of a party who has had reasonable notice of proceedings before it;  and

(c)        adjourn proceedings.

                  (2)        For the purposes of the hearing of a proceeding before the Tribunal, the member of the Tribunal who is to preside or presides at the hearing may summon a person to appear before the Tribunal at that hearing or on another date specified in the summons —

(a)        to give evidence;

(b)        to give evidence and produce any books, documents or things in the possession, custody or control of the person that are mentioned in the summons;  or

(c)        to produce any books, documents or things in the possession, custody or control of the person that are mentioned in the summons.

                  (3)        The member presiding at a hearing may give a party to the proceeding leave to inspect a document produced under a summons.

                  (4)        A person shall be taken to have complied with a summons under paragraph 12(2)(c) if the person delivers the documents to the Secretary before the date specified in the summons.

                  (5)        The Tribunal may set aside a summons issued under subsection 12(2).

                  (6)        The member who presides at the hearing of a proceeding before the Tribunal —

(a)        may require a person appearing before the Tribunal at that hearing to give evidence either to take an oath or to make an affirmation;  and

(b)        may administer an oath or affirmation to a person so appearing before the Tribunal;  and

(c)        may, if a person participates by a means allowed under subsection 12(10), make such arrangements as appear to the member to be appropriate in the circumstances in relation to administering an oath or affirmation to the person.

                  (7)        The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers the person will give to questions asked will be true.

                  (8)        A person summoned to appear before the Tribunal may request to be represented by a legal practitioner or other person and, upon such a request being made, the Tribunal may allow the person to be so represented.

                  (9)        Upon application by and at the cost of the party making the application the Tribunal may, if it considers it reasonable in all the circumstances so to do, determine a place for a hearing elsewhere than in Norfolk Island.

                  (10)      Evidence or documents in evidence may be received by the Tribunal in a form, or by means, determined by the Tribunal.

                  (11)      Without limiting the generality of subsection 12(10), the Tribunal may, if it so determines, receive evidence by telephone or video-conferencing or similar type of communication, or documents in evidence by facsimile transmission.

                  (11A)   The Tribunal may of its own motion or upon application by a party appoint an independent expert to advise the Tribunal on any question of fact or opinion not involving questions of law or construction but the Tribunal shall not be obliged to accept the expert’s opinion.

                  (12)      The application of this section extends to a conference mentioned in section 24 as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the conference.

Secretary of the Tribunal

      13.       (1)        The Chief Executive Officer may appoint a person who is employed by the Norfolk Island Regional Council to be —

(a)        the Secretary; or

(b)        the Deputy Secretary,

of the Tribunal.

                  (2)        The Deputy Secretary may exercise and perform the powers and functions of the Secretary of the Tribunal —

(a)        during an absence of the Secretary from duty or from Norfolk Island;

(b)        during a vacancy in the office of Secretary; or

(c)        at any other time subject to the direction of the Secretary.

                  (3)        At all times both the Secretary and Deputy Secretary whilst performing their duties under this Act shall be subject to the directions only of the President.

PART 3 — REVIEW OF DECISIONS

Tribunal may review certain decisions

      14.       (1)        Subject to section 15, an enactment may provide that applications may be made to the Tribunal —

(a)        for review of decisions made in the exercise of powers conferred by that enactment; or

(b)        for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

                  (2)        Where an enactment makes provision in accordance with subsection 14(1), that enactment —

(a)        shall specify the person to whose decisions the provision applies; and

(b)        may be expressed to apply to all decisions of a person, or to a class of such decisions; and

(c)        may specify conditions subject to which applications may be made.

                  (3)        Where an enactment makes provision in accordance with this section for making applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on the person, that provision of the enactment applies also in relation to decisions made in the exercise of the power —

(a)        by a person to whom the power has been delegated;

(b)        in the case where the provision specifies the person by reference to his or her holding a particular office or appointment - by a person for the time being acting in, or performing the duties of, the office or appointment; or

(c)        by any other person lawfully authorised to exercise the power.

                  (4)        The Tribunal has power to review a decision in respect of which application is made to it under an enactment.

                  (5)        For the purposes of an enactment that makes provision in accordance with this section for making applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by the enactment, or by another enactment having effect under the enactment, as the period within which the person is required or permitted to do the act or thing, shall be deemed to constitute making a decision by the person at the expiration of the period not to do the act or thing.

                  (6)        Where —

(a)        a person has made a decision in respect of which an application may be made to the Tribunal; and

(b)        the person made the decision by reason that he or she held or performed the duties of an office or appointment; and

(c)        the person no longer holds or performs the duties of the office or appointment,

this Act has effect as if the decision had been made by —

(d)       the person for the time being holding or performing the duties of the office or appointment; or

(e)        if there is no person for the time being holding or performing the duties of the office or appointment or the office no longer exists - such person as the member presiding at the proceedings before the Tribunal specifies.

                  (7)        Where an enactment provides for applications to the Tribunal, that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of this Act in relation to such applications, and this Act has effect in relation to such applications subject to any provisions so included.

Certain decisions not reviewable

      15.       (1)        An enactment shall not provide for review by the Tribunal of a decision of the Commonwealth Minister (other than a decision made in the exercise of a power, function or duty vested in the Commonwealth Minister by section 18B of the Norfolk Island Act 1979 of the Commonwealth).

                  (1A)     To avoid doubt, an enactment made before the interim transition time does not contravene subsection (1) merely because of the effect of Schedule 1 to the Interpretation Act 1979 on the enactment.

Note:          At and after the interim transition time, that Schedule has the effect that the Commonwealth Minister may make under an enactment a decision that, before that time, could only be made by a Minister or the Administrator. That Schedule does not prevent such a decision made by the Commonwealth Minister from being reviewable by the Tribunal.

                  (2)        A decision made before the commencement day is not reviewable by the Tribunal.

Persons who may apply to the Tribunal

      16.       Where this Act or any other enactment provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Administration or a Norfolk Island authority) whose interests are affected by the decision.

Person affected by decision may obtain reasons for decision

      17.       (1)        Where a person makes a decision in respect of which an application may be made to the Tribunal for a review, a person (in this section and sections 18 to 20 called the “applicant”) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request the person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

                  (2)        The person who made the decision shall, as soon as practicable, but in any case within 28 days after receiving the request referred to in subsection 17(1), prepare, and give to the applicant, such a statement.

Circumstances where applicant not entitled to obtain reasons

      18.       (1)        Where a person to whom a request for a statement in relation to a decision is made by an applicant under subsection 17(1), is of the opinion that the applicant is not entitled to be given the statement, that person shall, as soon as practicable but in any case within 28 days after receiving the request, give to the applicant notice in writing of his or her opinion.

                  (2)        A person who gives a notice under subsection 18(1) with respect to a request for a statement in relation to a decision is not required to comply with the request unless the Tribunal, on application under subsection 18(4), decides that the applicant was entitled to be given the statement, and, if the Tribunal so decides, the first-mentioned person shall prepare the statement and give it to the applicant within 28 days after the decision of the Tribunal is given.

                  (3)        The applicant is not entitled to make a request under subsection 17(1) if:

(a)        the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to the applicant;  or

(b)        a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision has already been given to the applicant.

                  (4)        The Tribunal shall, on an application being made by an applicant who has received a notice under subsection 18(1) with respect to a request for a statement in relation to a decision, decide whether the applicant was, or was not, entitled to be furnished with the statement.

                  (5)        A person to whom a request for a statement in relation to a decision is made under subsection 17(1) may refuse to prepare and give the statement if:

(a)        in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the applicant - the request was not made on or before the 28th day after the day on which that document was furnished to the applicant;  or

(b)        in any other case - the request was not made within a reasonable time after the decision was made;

and in any such case the person to whom the request was made shall give to the applicant, as soon as practicable but in any case within 28 days after receiving the request, notice in writing stating that the statement will not be given and giving the reason why the statement will not be so given.

Disclosure contrary to public interest

      19.       (1)        If the Minister certifies in writing that the disclosure of any matter contained in a statement prepared under subsection 17(1) would be contrary to the public interest because the Crown in right of Norfolk Island could claim in a judicial proceeding that the matter should not be disclosed, a person who is requested to give a statement under subsection 17(1) —

(a)        is not required to include in the statement the matter to which the certificate relates;  and

(b)        where the statement would be false or misleading if it did not include that matter - is not required to give the statement;  and

(c)        shall notify the applicant in writing —

(i)         if the matter is not included in the statement - that the matter is not so included and giving the reasons for not including the matter;  or

(ii)        if the statement is not given - that the statement will not be given and giving the reason for not giving the statement.

                  (2)        As soon as practicable after the Minister has issued a certificate under subsection 19(1), he or she shall lay before the Legislative Assembly notification of the certificate.

Statement not containing adequate particulars, etc

      20.       (1)        If the Tribunal, upon application for a declaration under this section made to it by a person to whom a statement has been given under subsection 17(1), considers that the statement does not contain —

(a)        adequate particulars of findings on material questions of fact; or

(b)        an adequate reference to the evidence or other material on which those findings were based;  or

(c)        adequate particulars of the reasons for the decision,

the Tribunal may make a declaration accordingly and, where the Tribunal makes such a declaration, the person responsible for giving the statement shall, as soon as practicable but in any case within 28 days after the Tribunal makes the declaration, give to the applicant an additional statement containing further and better particulars in relation to matters specified in the declaration with respect to those findings, that evidence or other material or those reasons.

Tribunal to determine persons whose interests are affected by decision

      21.       Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal.

Application for review

      22.       (1)        An application to the Tribunal for a review of a decision shall —

(a)        be in writing;  and

(b)        be made in accordance with the approved form;  and

(c)        identify the decision and set out a statement of reasons for the application;  and

(d)       if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 14(5) - be lodged with the Tribunal within the prescribed time.

                  (2)        Subject to subsection 22(3), the prescribed time for the purposes of paragraph 22(1)(d) is the period commencing on the day on which the decision is made and ending on the 28th day after —

(a)        if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant; or

(b)        if the decision does not set out those findings and reasons —

(i)         if a statement in writing setting out those findings and reasons is given to the applicant otherwise than under subsection 17(1) not later than the 28th day after the day on which a document setting out the terms of the decision is given to the applicant - the day on which the statement is so given;

(ii)        if the applicant, in accordance with subsection 17(1), requests the person who made the decision to give a statement as mentioned in that subsection - the day on which the statement is given or the applicant is notified in accordance with subsection 19(1) that the statement will not be given; or

(iii)       in any other case - the day on which a document setting out the terms of the decision is given to the applicant.

                  (3)        In the case of a decision that is taken to be made under subsection 14(5), the prescribed time for the purposes of paragraph 22(1)(d) is the period commencing on the day on which the decision is taken to be made and ending —

(a)        if paragraph 22(3)(b) does not apply - on the 28th day after that day;  or

(b)        if the person whose failure to do an act or thing within a particular period is taken by subsection 14(5) to constitute the making of the decision makes or purports to make, after the end of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant - on the 28th day after —

(i)         if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant;  or

(ii)        if the decision does not set out those findings and reasons - the day that would be ascertained under paragraph 22(2)(b) if subsection 22(2) applied to the decision.

                  (4)        Where  —

(a)        no time is prescribed in this Act, or in another enactment, for the lodging with the Tribunal of applications for review of a particular decision; or

(b)        no time is prescribed in this Act, or another enactment, for the lodging with the Tribunal by a particular person of an application for review of a particular decision,

the prescribed time shall be 28 days from the date of the decision being made.

                  (5)        In forming an opinion for the purposes of subsection 22(4), the Tribunal shall have regard to —

(a)        the time when the applicant became aware of the making of the decision;

(b)        if paragraph 22(4)(b) applies - any period prescribed for the lodging by another person of an application for a review of the decision;  and

(c)        such other matters as it considers relevant.

                  (6)        Notwithstanding subsection 22(4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it doing so.

                  (7)        The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision.

                  (8)        The time for making an application to the Tribunal for a review of a decision may be extended under subsection 22(7) although that time has expired.

                  (9)        Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to serve notice of the application on a specified person, being a person whom the Tribunal considers to be affected by the application.

                  (10)      If a person on whom a notice is served under subsection 22(9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application unless the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their cases.

                  (11)      The Secretary shall cause notice in writing of an application for a review of a decision to be given to the person who made the decision.

                  (12)      In determining an application for an extension of time, the Tribunal shall have regard to  —

(a)        the time when the applicant became aware of the making of the decision;

(b)        if paragraph 22(4)(b) applies - any period prescribed for the lodging by another person of an application for a review of the decision;  and

(c)        such other matters as it considers relevant including special circumstances that justify it so doing.

                  (13)      For the purposes of this section the prescribed period of 28 days shall start from  —

(a)        the date the decision was made if within 14 days of making the decision a notice is published in the Gazette stating that any application must be lodged with the Administrative Review Tribunal within 28 days of the date of the decision; or

(b)        if published later - the date of publication in the Gazette.

Parties to proceeding before Tribunal

      23.       (1)        The parties to a proceeding before the Tribunal for a review of a decision are —

(a)        any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision; and

(b)        the person who made the decision; and

(c)        any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection 23(2).

                  (2)        Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, as prescribed, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

                  (3)        A person who is a party to a proceeding before the Tribunal —

(a)        because of a decision made by the person in the performance of the duties of an office or appointment;  or

(b)        because of subsection 14(6);

shall be described in the proceeding by the title of his or her designated office.

Conferences

      24.       (1)        Where an application is made to the Tribunal for a review of a decision, the President may, if the President thinks it desirable to do so, direct the holding of a conference of the parties or their representatives presided over by the President, another member or by an officer of the Tribunal.

                  (2)        The President may also direct that such a conference is to be held in the case of applications made to the Tribunal for a review of a decision of a kind specified in the direction.

                  (3)        At the hearing of a proceeding before the Tribunal, unless the parties otherwise agree, evidence shall not be given, and statements shall not be made, concerning any words spoken or act done at a conference held under this section.

                  (4)        The Chief Executive Officer may appoint an employee of the Norfolk Island Regional Council for the purpose of presiding over a conference under subsection 24(1).

Circumstances in which hearing may be dispensed with

      25.       If —

(a)        it appears to the President that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

(b)        the parties consent to the review being determined without a hearing,

the Tribunal  may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

Certain documents and information not required to be disclosed and questions not required to be answered

      26.       (1)        If the Minister certifies in writing that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest because the Crown in right of Norfolk Island could claim in a judicial proceeding that the matter should not be disclosed, subsection 26(2) applies.

                  (2)        A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to section 37, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.

                  (3)        Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Minister may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest because the Crown in right of Norfolk Island could claim in a judicial proceeding that the matter should not be disclosed, that person is excused from answering the question.

                  (4)        Where the Minister has certified under subsection 26(1) or 26(3) that disclosure of information or matter, or the answering of a question, would be contrary to the public interest, the Tribunal shall consider whether the information or matter should be disclosed to all or any of the parties to the proceeding or whether the answering by a person of a question would be contrary to the public interest.

                  (5)        If the Tribunal under subsection 26(4) decides that the information should be disclosed or the question answered, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected, or require the person to answer the question, as the case may be.

                  (6)        In considering whether information or matter contained in a document should be disclosed or questions answered as mentioned in subsection 26(4), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified in the certificate why the disclosure of information or of the matter or the answering of the question, as the case may be, would be contrary to the public interest.

                  (7)        A decision by the Tribunal under subsection 26(4) —

(a)        as to whether or not information, or matter contained in a document should be disclosed to all or any of the parties to a proceeding; or

(b)        that the answer of a question at the hearing of a proceeding would, or would not, be contrary to the public interest,

is a decision by the Tribunal in that proceeding for the purposes of section 34.

                  (8)        For the purposes of this Act —

(a)        the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding;  or

(b)        the question whether the answering by a person of a question would be contrary to the public interest,

is a question of law.

Lodging material documents

      27.       (1)        Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal shall, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of —

(a)        a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision;  and

(b)        every other document or part of a document that is in his or her possession or under his or her control and is considered by him or her to be relevant to the review of the decision by the Tribunal.

                  (2)        Subject to any other Act, the President may, in relation to a particular decision or class of decisions, direct that the person who is obliged to lodge with the Tribunal the statement referred to in paragraph 27(1)(a) may, rather than lodging the statement, lodge with the Tribunal, within the period applicable under subsection 27(1), 2 copies of the document setting out the reasons for the decision that is the subject of the application for review.

                  (3)        If a person who has made a decision that is the subject of an application for a review by the Tribunal has given to a party to the proceeding a statement in relation to the decision under section 17, the reference in paragraph 27(1)(a) to a statement is taken to be a reference to the statement given under section 17.

                  (4)        If it appears to the Tribunal that a party to a proceeding before the Tribunal for a review of a decision would or might suffer hardship if the period prescribed by subsection 27(1) for lodging with the Tribunal for the purposes of the review the copies of the documents mentioned in that subsection is not shortened, the Tribunal may, upon request being made, as prescribed, by that party, make an order directing that those copies be lodged with the Tribunal within such shorter period after the person who made the decision receives or received notice of the application as is specified in the order.

                  (5)        Where the Tribunal is of the opinion that particular other documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be served on the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the prescribed number of copies of each of those other documents that is in his or her possession or under his or her control, and a person on whom such a notice is served shall comply with the notice.

                  (6)        A person who is required under subsection 27(1) or 27(2) to lodge copies of a statement or other document or part of a document with the Tribunal under this section within a particular period, must also give a copy of the statement or other document or part of a document within that period to each other party to the proceeding.

Power of Tribunal to obtain additional statements

      28.       Where the Tribunal considers that a statement referred to in paragraph 27(1)(a) that is lodged by a person with the Tribunal does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for a decision, the Tribunal may order that person to lodge with the Tribunal, within a time specified in the order, an additional statement containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.

Opportunity to make submissions

      29.       Subject to sections 26 and 32, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present a case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

Power of Tribunal if parties reach agreement

      30.       (1)        If, at any stage of a proceeding for a review of a decision —

(a)        agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding, or in relation to a part of the proceeding or a matter arising out of the proceeding, that would be acceptable to the parties; and

(b)        the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal;  and

(c)        the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;

the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with subsection 30(2) or 30(3), as the case requires.

                  (2)        If the agreement is as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.

                  (3)        If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with that part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates.

Review by the Tribunal

      31.       (1)        After considering an application for review of a decision, the Tribunal shall make a decision —

(a)        affirming or varying the decision under review;  or

(b)        setting aside the decision under review and —

(i)         substituting another decision; or

(ii)        remitting the decision for reconsideration in accordance with its direction or recommendation.

                  (2)        In making a decision under subsection 31(1), the Tribunal may exercise all of the powers and discretions conferred by the relevant enactment on the person who made the decision.

                  (3)        After making a decision under subsection 31(1), the Tribunal shall ensure that a copy of the decision, and of the written reasons for it, are provided as soon as practicable to the parties to the review.

                  (4)        Unless the Tribunal otherwise orders, a decision made under subsection (1) has effect when a copy is, under subsection 31(3), given to the person who made the decision under review.

                  (5)        A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes, be taken to be a decision of that person and, upon the commencement of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be taken to have had effect, from the day on which the decision under review has or had effect.

Hearing in public subject to exceptions

      32.       (1)        Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

                  (2)        Where the Tribunal is satisfied that it is desirable to do so because of the confidential nature of evidence or of a matter, or for any other reason, it may, by order —

(a)        direct that a hearing or part of a hearing  shall take place in private and give directions as to who may be present; and

(b)        give directions prohibiting or restricting the publication of evidence given before it, whether in public or private, or of other matters contained in documents lodged with the Tribunal or received by it; and

(c)        give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding, of evidence given before the Tribunal, or of the contents of a document lodged with it or received in evidence by it, in relation to the proceeding.

Stay of proceedings

      33.       (1)        An application for review of a decision does not affect the operation of the decision that is the subject of the application or prevent the taking of action to implement the decision.

                  (2)        A person entitled to apply for review of an administrative decision may apply to the Tribunal for a direction suspending or modifying the operation or enforcement of the decision pending the making or determination of the application.

                  (3)        An application for stay must be in writing lodged with the Secretary and shall be dealt with as if it were an application for review.

                  (4)        The Tribunal may, if it considers there are  circumstances of urgency or for other reasons, or that it is impracticable to give the person who made the decision an opportunity to make representations about an application for stay, grant a stay temporarily, subject to such conditions as it thinks fit as to the making of the representations.

                  (5)        The Tribunal may, after considering an application for stay, if it is satisfied that it is appropriate for the purpose of securing the effectiveness of the hearing and determination of an application or proposed application for review, direct that the operation or enforcement of the decision, the subject of the application for stay, be suspended or modified.

                  (6)        A direction under subsection 33(5) has effect until —

(a)        the determination of the application for review; or

(b)        the end of a period, if any, specified in the direction,

whichever happens first.

                  (7)        Where a direction is made under subsection 33(5) staying or modifying the operation of a decision before a person has made an application for review of that decision, the direction ceases to have effect if the person who applied for the stay does not subsequently make an application for review in accordance with section 22.

                  (8)        A direction made under subsection 33(5) may be varied or revoked by the Tribunal.

Appeal to Supreme Court

      34.       (1)        A party to a proceeding before the Tribunal may appeal on a question of law from a decision of the Tribunal in the proceeding to the Supreme Court.

                  (2)        Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding for review of a decision, and the Tribunal decides that the interests of a person are not affected by the decision, the person may appeal to the Supreme Court from the decision of the Tribunal.

                  (3)        An appeal under subsection 34(1) or 34(2) shall be instituted —

(a)        not later than 28 days after the decision of the Tribunal was furnished to the person or within such further time as the Supreme Court (whether before or after the end of that day) allows; and

(b)        in accordance with the Rules of the Supreme Court.

                  (4)        The Supreme Court has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsection 34(1) or 34(2).

            (5)  The Supreme Court shall hear and determine the appeal and may make such order as it thinks fit, including an order —

(a)        affirming or setting aside the decision of the Tribunal; or

(b)        remitting the case to be heard and decided again, either with or without the hearing of further evidence by the Tribunal in accordance with the directions of the Court.

                  (6)        If the Supreme Court makes an order remitting the case to be heard and decided again by the Tribunal, the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates.

Operation of decision that is subject to appeal

      35.       (1)        Subject to this section, the institution of an appeal to the Supreme Court from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.

                  (2)        Where an appeal is instituted in the Supreme Court from a decision of the Tribunal, the Court may make an order staying or otherwise affecting the operation or implementation of —

(a)        the Tribunal’s decision or part of it; or

(b)        the decision or part of it, to which the proceeding before the Tribunal related,

as the Court thinks appropriate to secure the effectiveness of the hearing and determination of the appeal.

                  (3)        Where there is an order in force under subsection 35(2), the Supreme Court may make an order varying or revoking it.

                  (4)        An order in force under subsection 35(2) or 35(3) may be subject to conditions as specified in the order and has effect until the expiration of the period, if any, specified in the order or until the decision on the appeal is made.

Reference of question of law

      36.       (1)        The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Supreme Court for decision.

                  (2)        A question shall not be referred under subsection 36(1) without the concurrence of the President.

                  (3)        Where a question of law arising in a proceeding has been referred to the Supreme Court under this section, the Tribunal shall not, in that proceeding —

(a)        give a decision to which the question is relevant while the reference is pending; or

(b)        proceed in a manner, or a make a decision, that is inconsistent with the opinion of the Court on the question.

                  (4)        The Supreme Court has jurisdiction to hear and determine a question of law referred to it under this section.

Sending documents to, and disclosure of documents by, the Supreme Court

      37.       (1)        When an appeal is instituted in the Supreme Court in accordance with section 34 or a question of law is referred to the Court in accordance with section 36 —

(a)        the Tribunal shall, notwithstanding subsection 26(2) cause to be sent to the Court all documents or objects that were before the Tribunal in connection with the proceeding to which the appeal or reference relates;  and

(b)        at the conclusion of the proceeding before the Supreme Court in relation to the appeal or reference, the Court shall cause the documents or objects to be returned to the Tribunal.

                  (2)        If there is in force in respect of any of the documents a certificate in accordance with section 19 or subsection 26(1) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Supreme Court shall do all things necessary to ensure that the matter is not disclosed to any person other than a member of the Court as constituted for the purposes of the proceeding.

PART 4 — MISCELLANEOUS

Failure to comply with summons

      38.       (1)        A person served, as prescribed, with a summons to appear as a witness before the Tribunal shall not, without reasonable excuse —

(a)        fail to attend as required by the summons;  or

(b)        fail to appear and report from day to day unless excused, or released from further attendance, by a member.

                  (2)        A person served, as prescribed, with a summons under this Act to produce a book, document or thing shall not, without reasonable excuse, fail to comply with the summons.

Penalty:           60 penalty units or imprisonment for 12 months, or both.

Refusal to be sworn or to answer questions

      39.       A person appearing as a witness before the Tribunal shall not, without reasonable excuse —

(a)        when required under section 12 either to take an oath or make an affirmation - refuse or fail to comply with the requirement; or

(b)        refuse or fail to answer a question that the person is required to answer by the member presiding at the proceeding;  or

(c)        refuse or fail to produce a document that the person was required to produce by a summons under this Act served as prescribed.

Penalty:           60 penalty units or imprisonment for 12 months, or both.

False or misleading evidence

      40.       A person appearing as a witness before the Tribunal shall not give evidence that, to the person's knowledge, is false or misleading.

Penalty:           60 penalty units or imprisonment for 12 months, or both.

Contempt of Tribunal

      41.       A person shall not —

(a)        obstruct or hinder the Tribunal or a member in the performance of the functions of the Tribunal; or

(b)        disrupt proceedings of the Tribunal; or

(c)        do any other act or thing that would, if the Tribunal were the Supreme Court, constitute a contempt of that Court.

Penalty:           60 penalty units or imprisonment for 12 months, or both.

Protection of members, legal practitioner and witnesses

      42.       (1)        A member has, in the performance of duties as a member, the same protection and immunity as a Judge of the Supreme Court.

                  (2)        A legal practitioner or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the Supreme Court.

                  (3)        Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the Supreme Court.

Witness, etc fees

      43.       (1)        A person summoned to appear before the Tribunal is entitled to be paid prescribed fees and allowances for expenses.

                  (2)        Subject to subsection 43(3), the fees and allowances due to a witness shall be paid —

(a)        if the witness was summoned at the request of a party other than the person who made the decision subject to review - by that party;  and

(b)        in any other case - by the Administration.

                  (3)        The Tribunal may, in its discretion, order that the fees and allowances of a witness referred to in paragraph 43(2)(a) be paid, in whole or in part, by the Administration.

Tribunal may order costs

      43A.    The Tribunal may, if it considers it appropriate in all the circumstances, order that any party to the proceedings pay the legal costs of any or all other parties if the Tribunal considers that a party made an application that was frivolous or vexatious or without merit and in so doing may  —

(a)        fix the quantum of costs;

(b)        order that costs on such basis as directed be taxed if not agreed by the parties;

(c)        make such other orders as it considers appropriate.

Regulations

      44.       (1)        The Administrator may make Regulations, not inconsistent with this Act, prescribing matters —

(a)        required or permitted by this Act to be prescribed; or

(b)        necessary or convenient to be prescribed for carrying out or giving effect to this Act.

                  (2)        Without limiting subsection 44(1), Regulations may be made in relation to —

(a)        the imposition of fees in relation to applications to the Tribunal;

(b)        prescribing penalties not exceeding 10 penalty units for a contravention of the Regulations.


 

NOTES

The Administrative Review Tribunal Act 1996 as shown in this consolidation comprises Act No. 15 of 1996 and amendments as indicated in the Tables below.

Enactment

Number

and year

Date of

commencement

Application saving or transitional provision

Administrative Review Tribunal Act 1996

15, 1996

8.8.96

 

 

 

 

 

Administrative Review Tribunal (Amendment No. 2) Act 2004

14, 2004

20.8.04

15

 

 

 

 

[Previously consolidated as at 23 August 2004]

 

 

 

 

Interpretation (Amendment) Act 2012

[to substitute throughout —Commonwealth Minister for Minister; and to substitute Minister for executive member]

14, 2012

28.12.12

 

 

 

 

 

[Previously consolidated as at 31 December 2012]

 

 

Ordinance

Registration

Commencement

Application, saving and transitional provision

Norfolk Island Continued Laws Amendment Ordinance 2015
(No. 2, 2015)
(now cited as Norfolk Island Continued Laws Ordinance 2015 (see F2015L01491))

17 June 2015 (F2015L00835)

Sch 1 (items 2, 344, 345): 18 June 2015 (s 2(1) item 1)

Sch 1 (items 344, 345)

as amended by

 

 

 

Norfolk Island Continued Laws Amendment (2016 Measures No. 2) Ordinance 2016
(No. 5, 2016)

10 May 2016 (F2016L00751)

Sch 4 (items 7, 8): 1 July 2016 (s 2(1) item 4)

Norfolk Island Continued Laws Amendment (Public Health) Ordinance 2016
(No. 14, 2016)

14 Dec 2016 (F2016L01942)

Sch 1 (items 1, 2): 20 Jan 2017 (s 2(1) item 1)

 

Table of Amendments

ad = added or inserted

am = amended

rep = repealed

rs = repealed and substituted

Provisions affected

How affected

3

am

14, 2004; Ord No 2, 2015 (as am by Ord No 14, 2016)

4

rs

14, 2004

5

rs

14, 2004

6

am

14, 2004

7

am

14, 2004

8

rs

14, 2004

11A

ad

14, 2004

12

am

14, 2004

13

am

14, 2004; Ord No 2, 2015 (as am by Ord No 5, 2016)

15

am

Ord No 2, 2015 (as am by Ord No 14, 2016)

22

am

14, 2004

24

am

Ord No 2, 2015 (as am by Ord No 5, 2016)

43A

ad

14, 2004