58HFunctions and powers of Tribunal

58H  Functions and powers of Tribunal  (1) The functions of the Tribunal are to inquire into and determine, in accordance with this section, the matters referred to in subsection (2).  (2) The Tribunal shall, as provided for by this section:  (a) inquire into and determine the salaries and relevant allowances to be paid to members; and  (b) inquire into and make determinations in respect of prescribed matters that have been referred to the Tribunal.  (3) The Minister or, subject to subsection (4), the Secretary or the Chief of the Defence Force may, by notice in writing given to the President, refer a prescribed matter to the Tribunal.  (4) The Secretary or the Chief of the Defence Force shall not, without the approval in writing of the Minister, refer a prescribed matter to the Tribunal pursuant to subsection (3) if:  (a) at any time during the preceding 12 months, the Minister has made a determination under section 58B that relates, in whole or in part, to that matter; or  (b) the Secretary or the Chief of the Defence Force is aware that, at any time during the preceding 12 months, submissions have been made to the Minister requesting the Minister to make a determination that relates, in whole or in part, to that matter and the Minister has not made such a determination.  (5) The Tribunal shall, within 2 years of the commencement of this section or within such shorter period as the Minister, by notice in writing given to the President, determines, inquire into and make a determination in respect of the salaries and relevant allowances to be paid to members.  (6) Where a determination of the Tribunal in respect of the salaries and relevant allowances to be paid to members is in force, the Tribunal shall inquire into and make a further determination in respect of those salaries and allowances:  (a) within 2 years of the first‑mentioned determination taking effect; or  (b) if the Minister, by notice in writing given to the President, requests the Tribunal to make a further determination in respect of those salaries and allowances within a shorter period of the first‑mentioned determination taking effect—within that shorter period.  (7) A determination of the Tribunal shall be in writing and shall take effect, or shall be deemed to have taken effect, on such day as the Tribunal specifies for the purpose in the determination.  (8) The Tribunal shall not specify as the day on which a determination of the Tribunal takes effect a day earlier than the day on which the determination is made in any case where, if the determination so took effect:  (a) the rights of a person (other than the Commonwealth) which existed immediately before the last‑mentioned day would be affected in a manner prejudicial to that person; or  (b) liabilities would be imposed on a person (other than the Commonwealth) in respect of anything done or omitted to be done before that last‑mentioned day; and where, in a determination of the Tribunal, any provision is made in contravention of this subsection, that provision shall be of no effect.  (9) The President shall give a copy of each determination made by the Tribunal to the Minister, to the Secretary and to the Chief of the Defence Force.  (10) Where the Tribunal has made a determination (not being a determination made pursuant to subsection (12)), the Minister, the Secretary or the Chief of the Defence Force may, by notice in writing given to the President within 28 days of the determination being made, request the Tribunal to reconsider the determination.  (11) A notice of request under subsection (10) shall set out the grounds on which the reconsideration is being sought.  (12) As soon as practicable after a request is made under subsection (10) for reconsideration of a determination, the Tribunal shall reconsider the determination and shall make a further determination affirming, varying or replacing the first‑mentioned determination.  (13) The Minister shall cause a copy of each determination of the Tribunal to be laid before each House of the Parliament within 15 sitting days of that House after the determination is received by the Minister.  (14) Any regulation made under this Act, and any determination made under section 58B of this Act, has no effect to the extent that it is inconsistent with any determination of the Tribunal.  (15) In this section, prescribed matter means a matter in relation to which the Minister may make determinations under section 58B, not being a matter referred to in paragraph (2)(a). 58HA  Hearings in relation to discriminatory determinations  (1) If a determination is referred to the Tribunal under section 46PY of the Australian Human Rights Commission Act 1986, the Tribunal must hold a hearing to review the determination.  (2) Unless the hearing takes place before a single member of the Tribunal, subsections 58K(1) to (6) apply to the hearing as if it were a meeting of the Tribunal.  (3) The Tribunal must decide whether or not the hearing is to be held in public.  (4) If the Tribunal decides that the hearing is not to be held in public, then, subject to subsection (5) and subsections 58K(9) and 58KB(5), the Tribunal may decide the people who may be present.  (5) The Sex Discrimination Commissioner is entitled to notice of, and to be present at, the hearing and may make submissions to the Tribunal.  (6) In this section: determination includes a variation to a determination. Tribunal includes a single member conducting the Tribunal’s business under a direction under subsection 58KA(1). 58HB  Review of discriminatory determinations  (a) a determination has been referred to the Tribunal under section 46PY of the Australian Human Rights Commission Act 1986; and  (b) the Tribunal considers that the determination is a discriminatory determination; the Tribunal must take the necessary action to remove the discrimination, by setting aside the determination, setting aside terms of the determination or varying the determination.  (2) In this section: determination has the same meaning as in section 58HA. discriminatory determination means a determination that:  (a) has been referred to the Tribunal under section 46PY of the Australian Human Rights Commission Act 1986; and  (b) requires a person to do an act that would be unlawful under Part II of the Sex Discrimination Act 1984 except for the fact that the act would be done in direct compliance with the determination. Tribunal has the same meaning as in section 58HA.  (3) For the purposes of the definition of discriminatory determination in subsection (2), the fact that an act is done in direct compliance with the determination does not of itself mean that the act is reasonable. 58J  Reports by Tribunal  (1) The Minister may, by notice in writing given to the President, request the Tribunal to inquire into and report to the Minister on a matter specified in the notice, being a matter in relation to which the Tribunal may make a determination pursuant to section 58H.  (2) When a request is made under subsection (1), the Tribunal shall inquire into the matter concerned and give to the Minister a report in writing on that matter. 58K  Procedure of Tribunal  (1) The President shall convene such meetings of the Tribunal as he or she considers necessary for the efficient performance of its functions.  (2) Meetings of the Tribunal shall be held at such places as the President determines.  (3) The President shall preside at all meetings of the Tribunal at which he or she is present.  (4) If the President is not present at a meeting of the Tribunal, another member of the Tribunal nominated by the President shall preside at the meeting.  (5) The Tribunal shall keep records of its meetings.  (6) At a meeting of the Tribunal:  (a) 2 members of the Tribunal constitute a quorum;  (b) all questions shall be decided by a majority of votes of the members of the Tribunal present and voting; and  (c) the member of the Tribunal presiding has a deliberative vote and, in the event of an equality of votes, also has a casting vote.  (7) The Tribunal shall, in making a determination, have regard to:  (a) any decision of, or principles established by, the FWC that is or are relevant to the making of the determination; or  (b) if the FWC has not yet made any such decision or established any such principles, any decision of, or principles established by, the AIRC that is or are relevant to the making of the determination.  (8) In the performance of the functions of the Tribunal:  (a) the Tribunal may regulate the conduct of its proceedings as it thinks fit and is not bound to act in a formal manner; and  (b) the Tribunal may inform itself on any matter in such manner as it thinks fit and is not bound by the rules of evidence.  (9) The Defence Force Advocate and a person representing the Commonwealth are entitled to be present, and to make submissions to the Tribunal, during any proceedings before the Tribunal.  (10) Where the Tribunal thinks that a person or body should be heard in relation to a matter that is being, or is to be, considered by the Tribunal, the Tribunal may permit the person or body to be present, and to make submissions to the Tribunal, during proceedings before the Tribunal in relation to that matter. 58KA  Single member may conduct Tribunal’s business  (1) Subject to subsection (2), the President may:  (a) if a person referred to in subsection 58K(9) requests the President to do so and the President considers it appropriate; or  (b) in any case, on the President’s initiative; direct, in writing, that a member of the Tribunal specified in the direction is to conduct the Tribunal’s business in relation to any matter that is specified in the direction, being a matter that is being, or is to be, dealt with by the Tribunal.  (2) The President must not, in a direction made under subsection (1), direct that a single member is to deal with a request made under subsection 58KC(1).  (3) The President may, at any time, in writing, terminate a direction made under subsection (1).  (4) Where a single member is conducting the Tribunal’s business in relation to a matter:  (a) the single member may exercise any powers or perform any functions of the Tribunal in relation to that matter; and  (b) any act of the single member in relation to that matter is taken to be an act of the Tribunal.  (5) In this section, a reference to a matter that is being, or is to be, dealt with by the Tribunal includes a reference to any part of such a matter. 58KB  Procedure where single member is conducting Tribunal’s business  (1) Where a single member is conducting the Tribunal’s business:  (a) section 58K does not apply to the single member’s conduct of such business; and  (b) the following provisions apply.  (2) The single member may conduct such proceedings relating to the matter to which the direction relates as he or she considers necessary.  (3) In the conduct of the Tribunal’s business:  (a) the single member is not bound to act in a formal manner; and  (b) the single member may inform himself or herself on any matter in such manner as he or she thinks fit and is not bound by the rules of evidence.  (4) The single member must, in making a determination, have regard to:  (a) any decision of, or principles established by, the FWC that is or are relevant to the making of the determination; or  (b) if the FWC has not yet made any such decision or established any such principles, any decision of, or principles established by, the AIRC that is or are relevant to the making of the determination.  (5) The Defence Force Advocate and a person representing the Commonwealth are entitled to be present, and to make submissions to the single member, during any proceedings conducted by the single member.  (6) Where the single member thinks that a person or body should be heard in relation to a matter that is being, or is to be, considered by him or her, the single member may permit the person or body to be present, and to make submissions to the single member, during proceedings conducted by the single member in relation to that matter. 58KC  Review of action etc. of single member  (1) Where:  (a) a single member is conducting the Tribunal’s business in relation to a matter; and  (b) in dealing with the matter, the single member exercises a power or performs a function of the Tribunal; the Minister, the Secretary or the Chief of the Defence Force may, by notice in writing given to the President within 28 days after the single member has completed his or her conduct of that business, request the Tribunal to reconsider the exercise of the power or performance of the function.  (2) The notice must specify the exercise of the power or the performance of the function requested to be reconsidered and the grounds for seeking the reconsideration.  (3) As soon as practicable after the request is made, the Tribunal must:  (a) reconsider the exercise of the power or performance of the function specified in the request; and  (b) make a determination affirming, varying or replacing anything done by the single member in exercising that power or performing that function. 58KD  Determinations giving effect to agreement between the parties   The Tribunal may, in making a determination, give effect to any agreement reached between the Minister, acting on behalf of the Commonwealth, and the Chief of the Defence Force, acting on behalf of the members of the Australian Defence Force, in relation to a matter to which the determination relates.