Part 5Review and appeals

Part 5—Review and appeals Division 1—Review and appeals 66—Internal review (1) A decision of the Tribunal constituted of— (a) a Commissioner; or (b) a magistrate (not being a Presidential member); or (c) 2 or 3 members (but not including a Presidential member), may, on application under the rules, be reviewed under this section. (1a) The regulations may exclude or modify the application of subsection (1) insofar as it applies to prescribed classes of decisions under a relevant Act (subject to any provision made by a relevant Act). (1b) An application for review must be instituted within 1 month of the making of the decision to which the application relates but the Tribunal may, if it is satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the application should be instituted within that period (even if the time for instituting the application has expired). (1c) The President may determine, in relation to a particular matter, or particular class of matters, how the Tribunal will be constituted for the purposes of a review under this section. (1d) On a review, the Tribunal will examine the decision of the Tribunal at first instance on the evidence or material before the Tribunal at that time but the Tribunal may, as it thinks fit, allow further evidence or material to be presented to it. (1e) The Tribunal must, in acting under this section, reach the correct or preferable decision but in so doing must have regard to, and give appropriate weight to, the decision of the Tribunal at first instance. (2) The Tribunal may, on a review under this section— (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 a new decision; or (ii) send the matter back for reconsideration in accordance with any directions or recommendations as the Tribunal acting on review considers appropriate. 67—Appeals (1) Subject to this section and to any provision of a relevant Act as to the review of, or appeal against, a decision of the Tribunal, an appeal lies against a decision of the Tribunal, other than a decision of a Full Bench, to a Full Bench of the South Australian Employment Court. (2) The regulations may exclude or modify the application of subsection (1) insofar as the subsection applies to prescribed classes of decisions under a relevant Act (subject to any provision made by a relevant Act). (3) An appeal under this section will be by way of rehearing. (4) The Full Bench conducting the appeal may draw inferences of fact from evidence or other material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it. (5) The Full Bench conducting the appeal may— (a) affirm the decision appealed against; or (b) vary the decision appealed against; or (c) set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Full Bench considers appropriate. (6) A Full Bench may, on an appeal, make any interim, ancillary or consequential order that the Full Bench considers appropriate (but may only make an order for costs if this Act, or a relevant Act, specifically provides for the making of such an order). 68—Final appeal to Court of Appeal (1) Subject to subsection (2), an appeal lies on a question of law against a decision of the Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) to the Court of Appeal. (2) An appeal cannot be commenced under this section except with the permission of the Court of Appeal. (3) On an appeal to the Court of Appeal under this section, the Court of Appeal may— (a) decide the question of law; (b) refer the matter back to the Tribunal (or the South Australian Employment Court) with directions the Court of Appeal considers appropriate; (c) make consequential or related orders (including orders for costs). Division 2—Related matters 69—Effect of appeal on decision (1) The commencement of proceedings under this Part does not affect the operation of a decision to which the proceedings relate or prevent the taking of action to implement such a decision. (2) However, the Tribunal or the relevant court may make an order staying the operation of a relevant decision (including a decision of a relevant decision‑maker) until the proceedings are finally decided (on such conditions as may be specified in the order). (3) The Tribunal or a court may act under subsection (2) on application or on its own initiative. (4) The Tribunal's power to act under subsection (2) is exercisable only by a Presidential member. 70—Reservation of questions of law (1) A Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) may reserve any question of law arising in any proceedings (including on referral to the Full Bench) for determination by the Court of Appeal. (2) If a question of law is reserved, the Court of Appeal may determine the question and give any consequential orders or directions considered by the Court to be appropriate to the circumstances of the case.