Part 3Jurisdiction

Part 3—Jurisdiction Division 1—Preliminary 31—Sources of jurisdiction (1) The Tribunal will have the jurisdiction conferred on it by or under this or any other Act. (2) Without limiting subsection (1), if a provision of an Act enables an application, referral or appeal to be made to the Tribunal, or a claim to be brought before the Tribunal, the Act will be taken to confer jurisdiction on the Tribunal to deal with the matter concerned. 32—Kinds of jurisdiction (1) Subject to subsection (2), a matter in which the Tribunal has jurisdiction comes within— (a) its original jurisdiction; or (b) its review jurisdiction. (2) Subsection (1)(b) does not encompass the internal review jurisdiction that is exercised under Part 5 Division 1. Division 2—Original jurisdiction 33—Original jurisdiction (1) Subject to subsection (2), if the matter that a relevant Act gives the Tribunal to deal with does not involve a reviewable decision within the meaning of section 34, the matter comes within the Tribunal's original jurisdiction. (2) Subject to subsections (3) and (4) the Tribunal will, in its original jurisdiction, depending on the nature of the matter— (a) act as the original decision‑maker in the matter (and accordingly apply those principles which, according to law, are to be applied to bodies that make such decisions pursuant to statute); or (b) resolve a dispute between parties to the relevant proceedings; or (c) adopt any other course of action that the Tribunal considers appropriate to deal with the matter. (3) In exercising its original jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act. (4) Furthermore, the relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's original jurisdiction. Division 3—Review jurisdiction 34—Decisions within review jurisdiction (1) If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal's review jurisdiction. (2) For the purposes of subsection (1) (and the other sections of this Division), and subject to the provisions of a relevant Act, a reviewable decision is— (a) a decision made by the Crown or an agency or instrumentality of the Crown; or (b) a decision made by a prescribed person or body; or (c) a prescribed decision or class of decision, but does not include a decision made by a person or body or a decision, or class of decision, excluded by the regulations. (2a) For the purposes of this Act— (a) unless paragraph (b) applies—the decision‑maker for a reviewable decision is the person or body that made or is taken to have made the reviewable decision; (b) the rules may provide— (i) that the decision‑maker for a reviewable decision will, instead of being the person or body under paragraph (a), be a person or body that is assigned by the rules as being a suitable entity to act as the decision‑maker for the purposes of this Act (or specified provisions of this Act); or (ii) that a reference to the decision‑maker for a reviewable decision in this Act (or specified provisions of this Act) will be taken to include a reference to a person or body that is designated by the rules as being a suitable entity to act jointly with the person or body under paragraph (a) for the purposes of this Act (or specified provisions of this Act), and rules made under this paragraph will then have effect in accordance with their terms. (3) Subject to subsections (4), (5) and (6), the Tribunal will, in exercising its review jurisdiction, examine the decision of the decision‑maker by way of rehearing. (4) On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision‑maker. (5) A procedure on a rehearing will include— (a) an examination of the evidence or material before the decision‑maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and (b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter. (6) In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act. (7) Furthermore, the relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction. 35—Decision‑maker must assist Tribunal (1) In proceedings for the review of a reviewable decision, the decision‑maker for the reviewable decision must use his or her best endeavours to help the Tribunal so that it can make its decision on the review. (2) Without limiting subsection (1), the decision‑maker must provide the following to the Tribunal within a reasonable period and in any event within the time prescribed by the regulations: (a) a written statement of the reasons for the decision; (b) any document or thing in the decision‑maker's possession or control that may be relevant to the Tribunal's review of the decision. (3) The decision‑maker must, in providing any document or thing under subsection (2), take reasonable steps to identify the documents or things that were taken into account in making the relevant decision. (4) If the Tribunal considers that there are additional documents or things in the decision‑maker's possession or control that may be relevant to the Tribunal's review of the reviewable decision, the Tribunal may, by written notice, require the decision‑maker to provide the documents or things. (5) If the Tribunal considers the statement of reasons given under subsection (2)(a) is not adequate, the Tribunal may, by written notice, require the decision‑maker to give the Tribunal an additional statement containing stated further particulars. (6) The decision‑maker must comply with a notice given under subsection (4) or (5) within the period stated in the notice. (7) A requirement under this section that the decision‑maker give the Tribunal information or a document or thing applies despite any provision in another Act prohibiting or restricting the disclosure of the information or the information contained in the document or thing. (8) The Tribunal may examine any document or thing provided under this section and draw any conclusions of fact it considers proper. 36—Effect of review proceedings on decision being reviewed (1) The commencement of proceedings for the review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision unless— (a) the relevant Act states otherwise; or (b) an order is made under subsection (2). (2) On or after the commencement of proceedings for the review of a decision, the Tribunal or the decision‑maker may, on application or on its own initiative, make an order staying or varying the operation or the implementation of the whole or a part of the reviewable decision pending the determination of the matter, or until such time (whether before or after the determination of the matter) as the Tribunal or the decision‑maker may specify, if the Tribunal, or the decision‑maker, is satisfied that it is just and reasonable in the circumstances to make the order. (3) An order by the Tribunal or the decision‑maker under this section— (a) is subject to such conditions as are specified in the order; and (b) may be varied or revoked— (i) in any case—by further order of the Tribunal; or (ii) if the order was made by the decision‑maker—by further order by the decision‑maker or the Tribunal. 37—Decision on review (1) The Tribunal may, on a review under this Division— (a) affirm the decision that is being reviewed; or (b) vary the decision that is being reviewed; or (c) set aside the decision being reviewed and— (i) substitute its own decision; or (ii) send the matter back to the decision‑maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate, and, in any case, may make any order the Tribunal considers appropriate (including any interim order pending the reconsideration and determination of the matter by the decision‑maker, or any ancillary or consequential order, that the Tribunal considers appropriate). (2) The fact that a decision is made on reconsideration under subsection (1)(c)(ii) does not prevent the decision from being open to review by the Tribunal. (3) The decision‑maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision‑maker's decision— (a) is to be regarded as, and given effect as, a decision of the decision‑maker; and (b) unless the relevant Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect, from the time when the decision reviewed would have, or would have had, effect. (4) Without limiting subsection (3)(a), the decision‑maker has power to do anything necessary to implement the Tribunal's decision. (5) Despite subsection (3)(a), the decision as affirmed, varied or substituted is not again open to review before the Tribunal as a decision of the decision‑maker (but may be subject to appeal under this Act). 38—Tribunal may invite decision‑maker to reconsider decision (1) At any stage of proceedings for the review of a reviewable decision, the Tribunal may invite the decision‑maker to reconsider the decision. (2) On being invited by the Tribunal to reconsider the reviewable decision, the decision‑maker may— (a) affirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute a new decision. (3) If the decision‑maker varies the decision or sets it aside and substitutes a new decision, unless the proceedings for a review are withdrawn, the proceedings will then be taken to be for— (a) the review of the decision as varied; or (b) the review of the substituted decision. (4) The Tribunal may specify a period within which the decision‑maker should act under this section (and if the decision‑maker does not take action within that period then the Tribunal may resume its proceedings under this Division in such manner as it thinks fit).