Div 1Establishment of Tribunal

Division 1—Establishment of Tribunal 5—Establishment of Tribunal (1) The South Australian Employment Tribunal is established. (2) The Tribunal will have a part that is the Tribunal in Court Session and, as so established by force of this Act, is a court of record. (3) The Tribunal in Court Session is to be the South Australian Employment Court. (4) The Tribunal will also have a part that is the Tribunal acting as an industrial relations commission. 6—Jurisdiction of Tribunal (1) Subject to this or any other Act, the Tribunal will have the jurisdiction (including the jurisdiction to try a charge for an offence) conferred on it by or under this or any other Act. (2) Matters within the jurisdiction of the Tribunal will be assigned to the South Australian Employment Court as follows: (a) an Act conferring jurisdiction on the Tribunal may specifically assign matters to the South Australian Employment Court; (b) the rules may (unless to do so is inconsistent with a provision of a relevant Act) assign matters to the South Australian Employment Court; (c) the jurisdiction to try a charge for an offence is assigned to the South Australian Employment Court. (2a) If a matter is assigned to the South Australian Employment Court, the Court may direct, or an Act or the rules may provide, that the matter be the subject of a compulsory conference (within the meaning of section 43) in the part of the Tribunal that is acting as an industrial relations commission. (3) Matters within the jurisdiction of the Tribunal (and not assigned to the South Australian Employment Court) and dealt with by the Tribunal acting as an industrial relations commission do not need to be specifically assigned to such a commission. Note— The Tribunal will also have any jurisdiction conferred on it under a law of the Commonwealth (and in such a case the procedural provisions of this Act will apply in relation to the conferred jurisdiction except to the extent such provisions are excluded by, or are otherwise inconsistent with, the Commonwealth law). 6A—Conferral of jurisdiction—criminal matters (1) Subject to this section, the criminal jurisdiction of the South Australian Employment Court does not include jurisdiction in respect of major indictable offences. (2) In addition to any jurisdiction conferred by or under another Act, the regulations may confer on the South Australian Employment Court jurisdiction in respect of a summary or minor indictable offence against a specified Act or statutory provision. (3) If jurisdiction is conferred on the South Australian Employment Court under this or any other Act in respect of a summary or minor indictable offence, any proceedings for the offence must be commenced in the Court. (4) The South Australian Employment Court will deal with a charge of a summary or minor indictable offence in the same way as the Magistrates Court deals with such a charge (and in accordance with the procedures that would apply if the Magistrates Court were dealing with such a charge) and the Summary Procedure Act 1921 (including the provisions of that Act allowing an award of costs for or against a party to criminal proceedings) applies to the South Australian Employment Court subject to any exclusions or modifications prescribed by the regulations as if references to the Magistrates Court extended to the South Australian Employment Court. (5) For the avoidance of doubt, if a person charged with a minor indictable offence elects, in accordance with the Summary Procedure Act 1921, for a trial in a superior court, the South Australian Employment Court must commit the defendant for trial by jury in the District Court. (6) Where proceedings for a minor indictable offence are dealt with by a magistrate of the South Australian Employment Court— (a) the magistrate cannot impose a fine that exceeds the maximum fixed by the relevant Act or $1 500 000 (whichever is the lesser); and (b) the magistrate cannot impose a sentence of imprisonment that exceeds the maximum fixed by the relevant Act or 5 years (whichever is the lesser). (7) If a magistrate of the South Australian Employment Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limit prescribed by subsection (6), the magistrate may remand the defendant to appear for sentence before a judge of the South Australian Employment Court. (8) In the exercise of the criminal jurisdiction to which this section applies, summary proceedings will be heard by a Deputy President of the South Australian Employment Court who is also a magistrate unless the President determines that the proceedings should be heard by a judge of the Court. 6AB—Diversity proceedings (1) Despite the provisions of this or any other Act, if— (a) the determination of a matter that is within the jurisdiction of the Tribunal involves the exercise of federal diversity jurisdiction; or (b) the determination of a matter would be within the jurisdiction of the Tribunal but for the fact that the exercise of the jurisdiction would involve the exercise of federal diversity jurisdiction, then the jurisdiction must be exercised by the Tribunal sitting as the South Australian Employment Court. (2) If, in proceedings before the Tribunal (other than the Tribunal sitting as the South Australian Employment Court), whether commenced before or after the commencement of this section, the Tribunal considers that the determination of the matter involves, or may involve, the exercise of federal diversity jurisdiction, the Tribunal must refer the proceedings to the South Australian Employment Court for determination. (3) A proceeding— (a) that is before the South Australian Employment Court in the exercise of jurisdiction under subsection (1); or (b) referred to the South Australian Employment Court under subsection (2), is a diversity proceeding. (4) If proceedings are referred to the South Australian Employment Court under subsection (2), the proceedings may be continued and completed, subject to the direction of the Court, as if steps taken in the proceedings prior to the referral had been taken in the Court. (5) In respect of diversity proceedings under this section and despite anything to the contrary in a relevant Act— (a) the South Australian Employment Court may not be constituted of supplementary panel members; and (b) in the case of proceedings referred to the Court under subsection (2) that prior to the referral involved 1 or more supplementary panel members, the proceedings may be continued and completed in the absence of the panel members. (6) The South Australian Employment Court may, if the Court is satisfied that the matter does not involve the exercise of federal diversity jurisdiction— (a) remit the proceedings to the Tribunal as originally constituted; and (b) make such orders that the Court considers appropriate to facilitate the determination of the proceedings. (7) The South Australian Employment Court has, and may exercise, all of the jurisdiction, powers and functions in relation to diversity proceedings that the Tribunal (other than in Court Session) would have had if it could exercise federal diversity jurisdiction, including jurisdiction, powers and functions conferred or imposed on the Tribunal by or under this Act or a relevant Act. (8) The practices and procedures under this Act (including the rules) or a relevant Act that apply to the Tribunal (other than in Court Session) will apply to the South Australian Employment Court in respect of diversity proceedings unless, and to such extent as, the Court determines otherwise. (9) The amount specified in a purported monetary order made by the Tribunal may be recovered in the appropriate court (within the meaning of section 86) by the person in favour of whom the order was made as if it were a debt. (10) A person who contravenes or fails to comply with the terms of a purported order of the Tribunal (other than a purported monetary order) is guilty of an offence. Maximum penalty: $50 000 or imprisonment for 2 years. (11) If a person seeks a variation or revocation of a purported order or purported monetary order, the person may apply to the South Australian Employment Court, and such a matter will be a diversity proceeding for the purposes of this section. (12) No action undertaken, or purportedly undertaken, by a person pursuant to, or for the purposes of enforcing, a purported order or a purported monetary order, in good faith, gives rise to any liability against the person or the Crown. (13) In this section, a reference to a purported order or a purported monetary order is a reference to an order purportedly made by the Tribunal other than in Court Session (whether before or after the commencement of this section) that is invalid because determination of the matter that gave rise to the order involved the exercise of federal diversity jurisdiction and that, on the commencement of this section, is to be made by the South Australian Employment Court. (14) The provisions of this section prevail to the extent of any inconsistency between those provisions and any other provisions of this Act or any other Act. (15) In this section— federal diversity jurisdiction means jurisdiction of the kind referred to in section 75(iii) or (iv) of the Constitution of the Commonwealth. 6B—Conferral of jurisdiction—related matters (1) Without limiting any other provision, if a provision of an Act specifically enables an application 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. (2) Without limiting any other provision, Divisions 6 and 7 provide for additional jurisdiction, powers and other matters relating to the conferral of jurisdiction on the Tribunal or the Tribunal in Court session. 7—Tribunal to operate throughout State (1) The Tribunal is to facilitate access to its services throughout the State and may sit at any place (either within or outside the State). (2) Registries of the Tribunal will be at the places determined by the President after consultation with the Minister. 7A—Seals (1) The Tribunal will have such seals as are necessary for the transaction of its business. (2) The Tribunal must have a seal for the South Australian Employment Court. (3) A document apparently sealed with a seal of the Tribunal (including with respect to the South Australian Employment Court) will, in the absence of evidence to the contrary, be taken to have been duly issued under the authority of the Tribunal.