VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 - SCHEDULE 1

Schedule 1––Variations from Parts 3 and 4 for various proceedings ^[7]

Part 1—Introduction

1 Purpose of Schedule

The purpose of this Schedule is to set out variations from Parts 3 and 4 for certain proceedings under certain enabling enactments.

2 Definitions

In this Schedule—

Sch. 1 cl. 2 def. of

credit enactment amended by Nos 74/2010 s. 37(Sch. item 5.2), 11/2010 s. 59(3).

"credit enactment" means—

* * * * *

(b) Credit Act 1984 ;

* * * * *

(d) section 45 of the Motor Car Traders Act 1986 ;

Sch. 1 cl. 2 def. of planning enactment amended by Nos 101/1998 s. 23(b)(i), 12/2004 s. 167(2), 69/2006 s. 224(Sch. 3 item 11.2), 6/2009 s. 57(2), 6/2010 s. 203(1)

(Sch. 6 item 49.2) (as amended by No 45/2010 s. 22), 62/2014 s. 40, 28/2019 s. 53(2), 39/2018 s. 59(2).

"planning enactment" means—

(a) Catchment and Land Protection Act 1994 ;

(b) Environment Protection Act 2017 ;

(d) section 36 of the Flora and Fauna Guarantee Act 1988 ;

* * * * *

(f) Planning and Environment Act 1987 (except sections 94(5) and 105);

(fa) section 57 of the Road Management Act 2004 ;

(fb) section 126 and Schedule 2 of the Road Management Act 2004 ;

(fc) section 132 of the Road Management Act 2004 and regulations made under that section;

(g) Subdivision Act 1988 (except Division 5 of Part 5);

(h) section 56 of the Transport (Compliance and Miscellaneous) Act 1983 and regulations made under that section;

(i) Water Act 1989 (except sections 19 and 266(6));

"responsible authority" has the same meaning as in the Planning and Environment Act 1987 ;

Sch. 1 cl. 2 def. of taxing Act amended by Nos 5/2000 s. 55, 74/2000 s. 3(Sch. 1 item 139.1), 88/2005 s. 117(Sch. 2 item 11), 26/2007 s. 116, 44/2008 s. 105(1), 23/2010 s. 32, 36/2010 s. 21, substituted by No. 67/2017 s. 80, amended by No. 22/2021 s. 24.

"taxing Act" means—

(a) a taxation law (within the meaning of the Taxation Administration Act 1997 );

(b) Back to Work Act 2015 ;

(d) First Home Owner Grant and Home Buyer Schemes Act 2000 ;

(e) Unclaimed Money Act 2008 .

Sch. 1 Pt 1A (Heading and cl. 2A) inserted by No. 16/2006 s. 197.

Part 1A— Aboriginal Heritage Act 2006

Sch. 1 cl. 2A inserted by No. 16/2006 s. 197.

2A Constitution of Tribunal

The Tribunal is to be constituted for the purposes of a proceeding under Part 8 of the Aboriginal Heritage Act 2006 by—

(a) one member who has sound knowledge of, and experience in, Aboriginal cultural heritage; or

(b) if it is constituted by 2 members, at least one member who has sound knowledge of, and experience in, Aboriginal cultural heritage; or

(c) if it is constituted by 3, 4 or 5 members, at least 2 members who have sound knowledge of, and experience in, Aboriginal cultural heritage.

Part 2— Accident Compensation Act 1985

3 Privilege

Section 129I(5) of the Accident Compensation Act 1985 prevails over section 106(1) of this Act to the extent of any inconsistency between them.

4 Powers of Tribunal on review of assessment or amendment of contributions

Section 51(2)(d) does not apply in a proceeding for review of an assessment or amendment under section 129G of the Accident Compensation Act 1985 .

Sch. 1 Pt 2A (Heading and cls 4A, 4B) inserted by No. 76/2008 s. 159.

Part 2A—Assisted Reproductive Treatment Act 2008

Sch. 1 cl. 4A inserted by No. 76/2008 s. 159.

4A Fees

Despite section 68, no fee is payable in respect of an application under the Assisted Reproductive Treatment Act 2008 .

Sch. 1 cl. 4B inserted by No. 76/2008 s. 159.

4B Constitution of Tribunal for hearings

The Tribunal is to be constituted for the purposes of reviewing a decision under Division 2 of Part 9 of the Assisted Reproductive Treatment Act 2008 by at least 3 members, of whom at least one must be a woman.

Sch. 1 Pt 2AB (Heading and cls 4C–4J) inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

Part 2AB—Australian Consumer Law and Fair Trading Act 2012

Sch. 1 cl. 4C inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

4C What is a small claim ?

In this Part small claim has the meaning that it has in Chapter 7 of the Australian Consumer Law and Fair Trading Act 2012 .

Sch. 1 cl. 4D inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

4D Representation

(1) A party to a proceeding relating to a small claim may be represented by a professional advocate only if—

(a) the Tribunal is satisfied that no other party to the proceeding will be unfairly disadvantaged if the representation is allowed; and

(b) either—

(i) all parties to the proceeding agree; or

(ii) the Tribunal directs that the representation be allowed.

(2) Section 62(1)(b) does not apply to a proceeding relating to a small claim.

Sch. 1 cl. 4E inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

4E Withdrawal of application

Despite section 74(1), a person who lodges an application relating to a small claim may withdraw that application without the leave of the Tribunal.

Sch. 1 cl. 4F inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

4F Tribunal cannot extend time for commencing proceedings

Section 126(1) does not apply to a proceeding relating to a small claim.

Sch. 1 cl. 4G inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

4G Member of Tribunal can mediate

(1) Section 88(6) does not apply to a proceeding relating to a small claim.

(2) If the mediator is a member of the Tribunal a party may object to the mediator constituting the Tribunal (whether with or without others) for the purpose of hearing the proceeding.

(3) An objection under subclause (2) must be made to the Tribunal before or at the commencement of the hearing.

Sch. 1 cl. 4H inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

4H Resolution of objection to certain members constituting the Tribunal

(1) If a party to a proceeding relating to a small claim objects to the member who presided over a compulsory conference in the proceeding, or to a mediator in the proceeding, constituting the Tribunal for the purpose of hearing the proceeding (whether with or without others), the Tribunal must determine whether or not the member may continue to constitute the Tribunal for that purpose.

(2) For the purpose of making a determination under subclause (1), the Tribunal may be constituted (whether with or without others) by the member against whom the objection was made.

(3) Section 86(3) does not apply to a proceeding relating to a small claim.

Sch. 1 cl. 4I inserted by No. 21/2012 s. 239(Sch. 6 item 46.3).

4I Costs and security for costs

(1) The Tribunal cannot order costs in a proceeding relating to a small claim, except in a review of a determination under section 120 in respect of such a proceeding.

(2) Section 79 does not apply to a review of a determination under section 120 in respect of a proceeding relating to a small claim.

Sch. 1 cl. 4J inserted by No. 21/2012 s. 239(Sch. 6 item 46.3), repealed by No. 15/2018 s. 75.

* * * * *

Sch. 1 Pt 2B (Heading and cls 4K, 4L) inserted by No. 15/2016 s. 69.

Part 2B— Building Act 1993

Sch. 1 cl. 4JA inserted by No. 21/2017 s. 109.

4JA Costs for proceedings under section 25BF

(1) In determining a proceeding under section 25BF of the Building Act 1993 , the Tribunal may order the Victorian Building Authority (within the meaning of that Act) to pay the costs of the applicant if—

(a) the review relates to a refusal of the Authority under section 25BC(2) of that Act to issue a building permit number (within the meaning of that Act); and

(b) the Tribunal is satisfied that the Authority did not have reasonable grounds for refusing to issue the building permit number.

(2) The power of the Tribunal under subclause (1) is additional to the Tribunal's power to make an order for costs under section 109(2).

(3) Section 109(6) applies to an order made under this clause as if it were made under section 109(2).

Sch. 1 cl. 4K inserted by No. 15/2016 s. 69.

4K Order to stay operation of decision

Despite section 50(4)(b), the Tribunal must give the Victorian Building Authority an opportunity to be heard if the order relates to a decision by the Authority under section 180A of the Building Act 1993 to immediately suspend the registration of a building practitioner.

Sch. 1 cl. 4L inserted by No. 15/2016 s. 69.

4L Costs

Despite section 109, the Tribunal may award costs against a building practitioner in a proceeding under Subdivision 3 of Division 4 of Part 11 of the Building Act 1993 if the building practitioner relied on evidence that was available but not provided to the Victorian Building Authority under that Part.

Sch. 1 Pt 3 (Heading and cls 5, 5A) amended by No. 58/2000 s. 8, substituted as Sch. 1 Pt 3 (Heading and cls 5, 6) by No. 48/2006 s. 35.

Part 3—Children, Youth and Families Act 2005

Sch. 1 cl. 5 substituted by No. 48/2006 s. 35.

5 Constitution of Tribunal

In a proceeding under section 42, 118, 158 or 333 of the Children, Youth and Families Act 2005 , the Tribunal is to be constituted by, or to include, a member who, in the opinion of the President, has knowledge of, or experience in, child welfare matters.

New Sch. 1 cl. 6 inserted by No. 48/2006 s. 35.

6 Tribunal cannot alter time limits

Sections 126(1) and 126(2)(a) do not apply to a proceeding in relation to a decision under Schedule 1 to the Children, Youth and Families Act 2005 .

Sch. 1 Pt 3A (Heading and cl. 6AA) inserted by No. 36/2022 s. 80.

Part 3A— Circular Economy (Waste Reduction and Recycling) Act 2021

Sch. 1 cl. 6AA inserted by No. 36/2022 s. 80.

6AA Powers of Tribunal on review of decisions relating to waste to energy scheme

Section 51(2)(b) and (c) do not apply in a proceeding for review of a decision or determination under Part 5A of the Circular Economy (Waste Reduction and Recycling) Act 2021 .

Sch. 1 Pt 4 (Heading and cl. 6) repealed by No. 48/2006 s. 35, new Sch. 1 Pt 4 (Heading and cl. 6A) inserted by No. 19/2013 s. 20.

Part 4— Company Titles (Home Units) Act 2013

Sch. 1 cl. 6A inserted by No. 19/2013 s. 20.

6A Any member of Tribunal may make a declaration

Despite anything to the contrary in section 124, a declaration may be made in a proceeding under the Company Titles (Home Units) Act 2013 by the Tribunal constituted by any member.

Part 5—Credit enactments

Sch. 1 cl. 7 amended by No. 11/2010 s. 59(4).

7 Constitution of Tribunal in certain proceedings

In a proceeding under section 85 or 86 of the Credit Act 1984 , a party may require that the Tribunal be constituted by a presidential member, whether with or without others.

8 Representation

(1) A natural person who is a party to a proceeding under a credit enactment may be represented in that proceeding by—

(a) the Director; or

Sch. 1 cl. 8(1)(b) substituted by No. 35/2000 s. 53, amended by Nos 108/2004 s. 117(1) (Sch. 3 item 219.4), 11/2010 s. 59(5).

(b) a person employed under Part 3 of the Public Administration Act 2004 in the administration of the Credit Act 1984 ; or

(2) This clause does not take away from any entitlement to representation under section 62.

9 Referral to Director

(1) The Tribunal may request the Director to investigate any matter that arises in a proceeding under a credit enactment.

(2) If a request is made under subclause (1)—

(a) the Director may; or

(b) if the Minister administering the credit enactment so determines, the Director must—

investigate the matter and, if he or she does so, must report on the investigation to the Tribunal.

10 Any member of Tribunal may make a declaration

Despite anything to the contrary in section 124 , a declaration may be made in a proceeding under a credit enactment by the Tribunal constituted by any member.

11 Reasons must be requested at time of decision

Despite anything to the contrary in section 117(2) , the Tribunal is not obliged to give a person written reasons for an order made in a proceeding under a credit enactment unless the person has made a request to the Tribunal for written reasons for orders that may be made in the proceeding before or at the time of the giving or notification of the Tribunal's decision in the proceeding.

Sch. 1 Pt 5AA (Heading and cls 11AA–11AI) inserted by No. 23/2006 s. 231 (as amended by No. 25/2007 s. 34(2)).

Part 5AA— Disability Act 2006

Sch. 1 cl. 11AA inserted by

No. 23/2006 s. 231 (as amended by No. 25/2007 s. 34(2)).

11AA Application of provisions

(1) Clauses 11AB to 11AF apply in respect of any proceeding under the Disability Act 2006 .

(2) Clauses 11AG to 11AI apply in respect of any proceeding under Division 5 of Part 8 of the Disability Act 2006 .

Sch. 1 cl. 11AA(3) inserted by

No. 22/2012 s. 87(1).

(3) Clause 11AIA applies in relation to any proceeding on an application under section 199A of the Disability Act 2006 .

Sch. 1 cl. 11AB inserted by

No. 23/2006 s. 231.

11AB Representation

Despite section 62(1)(b), a party to any proceeding under the Disability Act 2006 may be represented by a professional advocate.

Sch. 1 cl. 11AC inserted by

No. 23/2006 s. 231.

11AC Appointment of litigation guardian

If a party to any proceeding under the Disability Act 2006 is a person with a disability, the Tribunal may appoint a litigation guardian, in accordance with the rules, to conduct the proceeding on behalf of the person with a disability.

Sch. 1 cl. 11AD inserted by

No. 23/2006 s. 231.

11AD Fees

Despite section 68, no fee is payable in respect of an application under the Disability Act 2006 .

Sch. 1 cl. 11AE inserted by

No. 23/2006 s. 231, substituted by No. 22/2012 s. 87(2).

11AE Commencement

The Tribunal must commence the hearing of a proceeding on an application under the Disability Act 2006 within—

(a) in the case of an application under section 199A of that Act, 5 business days of the application being lodged with the Tribunal; or

(b) in any other case, 30 days of the application being lodged with the Tribunal.

Sch. 1 cl. 11AF inserted by

No. 23/2006 s. 231, substituted by No. 23/2014 s. 21(1).

11AF Costs of Tribunal appointed experts

Despite clause 7(5) of Schedule 3, a person with a disability is not responsible for the costs of a Tribunal appointed expert under clause 7 of that Schedule.

Sch. 1 cl. 11AG inserted by

No. 23/2006 s. 231.

11AG Personal attendance

The person with an intellectual disability must personally attend the proceeding unless the Tribunal orders that it would be detrimental to the health or well-being of the person to personally attend.

Sch. 1 cl. 11AH inserted by

No. 23/2006 s. 231,

repealed by No. 58/2013 s. 63.

* * * * *

Sch. 1 cl. 11AI inserted by

No. 23/2006 s. 231.

11AI Restriction on access to information

Despite anything to the contrary in this Act, the Tribunal may order that the person with an intellectual disability not hear any particular evidence or be permitted to inspect a submission or other document if the Tribunal is of the opinion that it is necessary to do to prevent—

(a) serious harm to the health or well-being of the person with an intellectual disability; or

(b) exposing another person to a risk of serious harm; or

(d) the disclosure of information given in confidence.

Sch. 1 cl. 11AIA inserted by

No. 22/2012 s. 87(3).

11AIA Application for review of assessment order

(1) Section 49(2) does not apply to an application under section 199A of the Disability Act 2006 .

(2) If an application is made under section 199A of the Disability Act 2006 , the copies required to be lodged under section 49(1) must be lodged within one business day after the Senior Practitioner receives notice of the application.

Sch. 1 Pt 5AB (Heading and cls 11AIB–11AIE) inserted by No. 21/2019 s. 21.

Part 5AB— Essential Services Commission Act 2001

Sch. 1

cl. 11AIB

inserted by No. 21/2019 s. 21.

11AIB Definition

In this Part—

"Commission "means the Essential Services Commission established under section 7 of the Essential Services Commission Act 2001 .

Sch. 1

cl. 11AIC

inserted by No. 21/2019 s. 21.

11AIC Application of Part

This Part applies to a proceeding for review of a requirement, decision or determination of the Commission under the Essential Services Commission Act 2001 .

Sch. 1

cl. 11AID

inserted by No. 21/2019 s. 21.

11AID Evidence before Tribunal

(1) This clause applies despite anything to the contrary in Part 3 or 4.

(2) In a proceeding, the Tribunal must only consider as evidence—

(a) the facts and materials that were in the possession of the Commission at the time the requirement, decision or determination that is the subject of the proceeding was made; and

(b) the facts and materials that explain or relate to the processes of the Commission leading to its requirement, decision or determination that is the subject of the proceeding.

(3) Despite subclause (2), the Tribunal may, allow the applicant or the Commission to place before it, for consideration as evidence, facts and materials not referred to in subclause (2)(a) or (b) if the applicant or Commission satisfies the Tribunal that the facts and materials—

(a) are materially relevant to the proceeding; and

(b) could not have been placed before the Commission before the time the requirement, decision or determination that is the subject of the proceeding was made.

Sch. 1

cl. 11AIE

inserted by No. 21/2019 s. 21.

11AIE Functions of Tribunal on review limited

Despite section 51(2), in determining a proceeding, the Tribunal may only make an order in accordance with section 56 of the Essential Services Commission Act 2001 .

Sch. 1 Pt 5AAB (Heading and cl. 11AJ) inserted by No. 13/2010 s. 50.

Part 5AAB—Health Practitioner Regulation National Law (Victoria)

Sch. 1

cl. 11AJ

inserted by No. 13/2010 s. 50.

11AJ Constitution of Tribunal for hearings

The Tribunal is to be constituted for the purposes of making a final determination under Part 8 of the Health Practitioner Regulation National Law (Victoria) by at least 3 members, of whom at least 2 must be health practitioners with professional qualifications in the health profession regulated by the National Board that is a party to the proceedings.

Sch. 1 Pt 5A (Heading and cl. 11A) inserted by No. 97/2005 s. 181.

Part 5A—Health Professions Registration Act 2005

Sch. 1 cl. 11A inserted by No. 97/2005 s. 181, amended by No. 27/2012 s. 28.

11A Constitution of Tribunal for hearings

The Tribunal is to be constituted for the purposes of making a final determination under Part 4 of the Health Professions Registration Act 2005 as in force immediately before its repeal by at least 3 members, of whom at least 2 must be health practitioners with professional qualifications in the health profession regulated by the board that is a party to the proceedings.

Sch. 1 Pt 5B (Heading and cls 11F–11J) inserted by No. 2/2001 s. 117.

Part 5B— Health Records Act 2001

Sch. 1 cl. 11F (Heading) amended by No. 22/2016 s. 248.

Sch. 1 cl. 11F inserted by No. 2/2001 s. 117, amended by No. 22/2016 s. 249.

11F Intervention by Health Complaints Commissioner

The Health Complaints Commissioner may intervene at any time in a proceeding under the Health Records Act 2001 .

Sch. 1 cl. 11G inserted by No. 2/2001 s. 117.

11G Notification in other proceedings

Sch. 1 cl. 11G(1) amended by No. 22/2016 s. 250(1).

(1) If an application is made under section 73 (interim order) or a referral under section 54 (Minister's referral) of the Health Records Act 2001 , the principal registrar must notify the Health Complaints Commissioner.

Sch. 1 cl. 11G(2) amended by No. 22/2016 s. 250(2).

(2) Subclause (1) does not apply in the case of an application by the Health Complaints Commissioner under section 73 of the Health Records Act 2001 .

Sch. 1 cl. 11H (Heading) amended by No. 22/2016 s. 251.

Sch. 1 cl. 11H inserted by No. 2/2001 s. 117, amended by No. 22/2016 s. 252.

11H Health Complaints Commissioner may apply for interim injunction

The Health Complaints Commissioner may apply for an order granting an interim injunction under section 123 in a proceeding under the Health Records Act 2001 whether or not he or she is a party to that proceeding.

Sch. 1 cl. 11I inserted by No. 2/2001 s. 117, amended by No. 22/2016 s. 253.

11I Compulsory conference

The presiding member at a compulsory conference in a proceeding under the Health Records Act 2001 may refer any matter to the Health Complaints Commissioner for investigation, negotiation or conciliation.

Sch. 1 cl. 11J inserted by No. 2/2001 s. 117.

11J Settlement offers

Sections 112 to 115 do not apply to a proceeding under the Health Records Act 2001 .

Part 6— Domestic Building Contracts Act 1995

Sch. 1 cl. 11K inserted by No. 34/2013 s. 35(Sch. 2 item 9.1), amended by No. 15/2016 s. 13 (ILA s. 39B(3)).

11K Definitions

(1) In this Part—

Sch. 1 cl. 11K def. of Building Practitioners Board repealed by No. 15/2016 s. 70(1).

* * * * *

"Victorian Building Authority" means the Victorian Building Authority established under Division 2 of Part 12 of the Building Act 1993 .

Sch. 1 cl. 11K(2) inserted by No. 15/2016 s. 13.

(2) In this Part, words and expressions have the same meanings as they have in the Domestic Building Contracts Act 1995 .

Sch. 1 cl. 12 (Heading) inserted by No. 68/2001 s. 20(1), amended by No. 34/2013 s. 35(Sch. 2 item 9.2), substituted by No. 15/2016 s. 70(2)(a).

12 Referral to Director or Victorian Building Authority

Sch. 1 cl. 12(1) amended by Nos 68/2001 s. 20(2), 34/2013 s. 35(Sch. 2 item 9.3), 15/2016 s. 70(2)(b).

(1) The Tribunal may request the Director or the Victorian Building Authority to investigate any matter that arises in a proceeding under the Domestic Building Contracts Act 1995 .

Sch. 1 cl. 12(2) amended by Nos 34/2013 s. 35(Sch. 2 item 9.4), 15/2016 s. 70(2)(c).

(2) The Director or the Authority may investigate a matter on request under subclause (1) and, if the Director or the Authority does so, they must report on the investigation to the Tribunal.

Sch. 1 cl. 12A inserted by No. 36/2002 s. 16.

12A Tribunal may request information about domestic building dispute

Sch. 1 cl. 12A(1) amended by Nos 34/2013 s. 35(Sch. 2 item 9.5), 15/2016 s. 14(1).

(1) The Tribunal may request the Director or the Victorian Building Authority to provide the Tribunal with any information held by the Director or the Authority that relates to a proceeding under the Domestic Building Contracts Act 1995 in relation to a domestic building dispute within the meaning of section 3 of that Act.

Sch. 1 cl. 12A(2) amended by No. 34/2013 s. 35(Sch. 2 item 9.6).

(2) The Director or the Authority (as the case requires) must comply with a request under subclause (1).

Sch. 1 cl. 12A(3) inserted by No. 15/2016 s. 14(2).

(3) Subclause (1) does not apply to information

that is inadmissible because of section 46C of the Domestic Building Contracts Act 1995 .

Sch. 1 cl. 12B inserted by No. 15/2016 s. 15.

12B Costs in relation to domestic building work disputes generally

(1) This clause applies despite section 109 to a domestic building dispute that is a domestic building work dispute.

(2) Subject to subclause (3), the Tribunal must make an award of costs against an unsuccessful party to the dispute if the dispute had been referred for a conciliation conference and the party—

(a) refused to participate in the conciliation conference; or

(b) did not participate in the conciliation conference in good faith.

(3) The Tribunal is not required to make an award of costs against a party (the first party) under subclause (2) if it is satisfied that it would be unfair to do so, having regard to—

(a) whether another party has conducted the proceeding in a way that unnecessarily disadvantaged the first party to the proceeding by conduct such as—

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or the enabling enactment;

(iii) asking for an adjournment as a result of subparagraph (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding; and

(b) whether another party has been responsible for prolonging unreasonably the time taken to complete the proceeding; and

(d) any other matter the Tribunal considers relevant.

Sch. 1 cl. 12C inserted by No. 15/2016 s. 15.

12C Costs for withdrawal of application

(1) This clause applies if—

(a) a party to a domestic building work dispute applies to the Tribunal for the review of a decision to issue a dispute resolution order under Part 4 of the Domestic Building Contracts Act 1995 ; and

(b) the party withdraws the application.

(2) Despite section 109, the Tribunal must award costs against the party that withdrew the application unless the Tribunal is satisfied that it would be unfair to do so.

Sch. 1 cl. 12D inserted by No. 15/2016 s. 15.

12D Costs on review of decision to issue dispute resolution order

(1) This clause applies despite section 109.

(2) This clause applies to an application to the Tribunal for review of a decision to issue a dispute resolution order.

(3) If the applicant is the builder, the Tribunal may award costs against the builder if the determination of the Tribunal is—

(a) to affirm the decision to issue the dispute resolution order; or

(b) to vary the dispute resolution order to increase the obligations on the builder or decrease the obligations on the building owner.

(4) If the applicant is the building owner, the Tribunal may award costs against the building owner if the determination of the Tribunal is—

(a) to affirm the decision to issue the dispute resolution order, including a dispute resolution order that includes a finding referred to in section 49D(1) of the Domestic Building Contracts Act 1995 ; or

(b) to vary the dispute resolution order to increase the obligations on the building owner or to decrease the obligations on the builder.

(5) In determining whether to award costs under this clause, the Tribunal must consider—

(a) whether the application was vexatious, frivolous or lacking in substance; and

(b) any certificate of conciliation relating to the domestic building work dispute to which the dispute resolution order relates; and

Sch. 1 Pt 7 (Heading and cls 13–28) amended by Nos 51/2000 s. 27, 43/2006 s. 47(Sch. items 8.2–8.6), 14/2009 s. 18, substituted as Sch. 1 Pt 7 (Heading and cls 13–23) by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

Part 7— Equal Opportunity Act 2010

Sch. 1 cl. 13 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

13 Meaning of Commission

In this Part—

"Commission" means the Victorian Equal Opportunity and Human Rights Commission.

Sch. 1 cl. 14 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

14 Unincorporated associations can be parties

(1) Section 61(1) does not apply to a proceeding under the Equal Opportunity Act 2010 .

Note

Section 187 of the Equal Opportunity Act 2010 contains provisions for unincorporated associations in proceedings under that Act.

(2) An unincorporated association that is a party to a proceeding under the Equal Opportunity Act 2010 has the same right to representation in the proceeding as a body corporate.

Sch. 1 cl. 15 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

15 Notification of commencement in certain section 89 matters

(1) If the Tribunal proposes to grant, renew or revoke an exemption under section 89 of the Equal Opportunity Act 2010 on its own initiative, it must notify, in any manner it thinks fit, all persons whose interests, in the opinion of the Tribunal, may be affected by the proposed grant, renewal or revocation.

(2) For the purposes of subclause (1)—

(a) interests means interests of any kind and is not limited to proprietary, economic or financial interests;

(b) a reference to interests affected includes a reference to interests that are directly or indirectly affected and whether or not any other person's interests are also affected by the proposed grant, renewal or revocation.

Sch. 1 cl. 16 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

16 Notification in proceedings for interim orders

(1) If an application is made under section 121 of the Equal Opportunity Act 2010 for an interim order, the principal registrar must notify the Commission.

(2) Subclause (1) does not apply in the case of an application by the Commission under section 121 of the Equal Opportunity Act 2010 .

Sch. 1 cl. 17 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

17 Withdrawal of proceeding

(1) Despite section 74(1), an applicant is not required to obtain the leave of the Tribunal to withdraw an application under the Equal Opportunity Act 2010 .

(2) Nothing in subclause (1) affects the Tribunal's power to award costs in any proceeding that is withdrawn.

Sch. 1 cl. 18 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

18 Summary dismissal of application more than 12 months old

The Tribunal may make an order under section 76 summarily dismissing an application under the Equal Opportunity Act 2010 in respect of an alleged contravention of Part 4, 6 or 7 of that Act if the alleged contravention occurred more than 12 months before the application was made.

Sch. 1 cl. 19 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

19 Commission may apply for interim injunction

The Commission may apply for an order granting an interim injunction under section 123 in a proceeding under the Equal Opportunity Act 2010 whether or not the Commission is a party to that proceeding.

Sch. 1 cl. 20 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

20 Exemptions under section 89

(1) The Tribunal may determine to grant an exemption under section 89 of the Equal Opportunity Act 2010 without a hearing whether or not the parties agree to dispense with the hearing.

(2) For the avoidance of doubt, an exemption under section 89 of the Equal Opportunity Act 2010 is not an order of the Tribunal.

Sch. 1 cl. 21 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

21 Evidence of mediation not admissible even if parties agree

(1) Evidence of anything said or done in the course of a mediation in a proceeding under the Equal Opportunity Act 2010 is not admissible in any hearing before the Tribunal in the proceeding, whether or not the parties agree to the giving of the evidence.

(2) Section 92 does not apply to a proceeding under the Equal Opportunity Act 2010 .

Sch. 1 cl. 22 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

22 Settlement offers

Sections 112 to 115 do not apply to a proceeding under the Equal Opportunity Act 2010 .

Sch. 1 cl. 23 substituted by No. 16/2010 s. 207 (as amended by No. 26/2011 ss 31, 34(Sch. items 9.7, 9.8)).

23 Notification of commencement of inquiry under section 139(2)(c)

(1) If a matter is referred to the Tribunal for inquiry under section 139(2)(c) of the Equal Opportunity Act 2010 , the Tribunal may direct the principal registrar to notify any person who the Tribunal considers may have an interest in that matter.

(2) The principal registrar must notify a person specified under subclause (1) in the manner specified by the Tribunal.

(3) The Tribunal may direct that notification under subclause (1) be done by the publication of an advertisement in the manner specified by the Tribunal.

Sch. 1 Pt 7AA (Heading and cls 28AA–28HH) inserted by No. 30/2003 s. 79, repealed by No. 21/2012 s. 239(Sch. 6 item 46.4).

* * * * *

Part 8— Freedom of Information Act 1982

29 Statement of reasons for decision

A decision-maker complies with section 46 in relation to a request for a statement of reasons for a decision made under the Freedom of Information Act 1982 if the decision-maker gives, or has given, the person who made the request a notice that complies with section 27 of that Act.

Sch. 1 cl. 29A inserted by No. 38/1999 s. 5, substituted by No. 57/1999 s. 12, amended by Nos 6/2012 s. 52(b), 20/2017 s. 134(Sch. 1 item 19.1(b)).

29A Person whose personal privacy is affected may intervene

If—

Sch. 1 cl. 29A(a) amended by Nos 6/2012 s. 52(a), 20/2017 s. 134(Sch. 1 item 19.1(a)).

(a) an agency or Minister or the Information Commissioner makes a decision refusing to grant access to a document under the Freedom of Information Act 1982 ; and

(b) a reason for the decision is that the document is an exempt document under section 33(1) of that Act because its disclosure would involve the unreasonable disclosure of information relating to the personal affairs of a person—

the person to whom the information relates may intervene in a proceeding on an application under section 50(1)(b), (d) or (e) or (3D) of that Act for review of the decision.

Sch. 1 cl. 29B inserted by No. 7/2003 s. 45.

29B Powers of Tribunal

(1) This clause applies to an application to the Tribunal for the review of a decision refusing to grant access to a document in accordance with a request, where—

(a) the document is claimed to be an exempt document under section 29A of the Freedom of Information Act 1982 ; and

(b) a certificate is in force in respect of the document under section 29A(2) of that Act.

(2) The Tribunal shall, if the applicant so requests, determine the question whether there exist reasonable grounds for the claim referred to in subclause (1)(a).

Sch. 1 cl. 29C inserted by No. 7/2003 s. 45.

29C Constitution of Tribunal for purposes of proceedings under clause 29B

(1) If a request is made to the Tribunal in accordance with clause 29B(2), the Tribunal must be constituted in accordance with subclause (2) for the purposes of any proceedings for the determination of the question referred to in that clause.

(2) For the purposes of a proceeding referred to in subclause (1) the Tribunal is to be constituted by a judicial member or judicial members.

Sch. 1 cl. 29D inserted by No. 7/2003 s. 45.

29D Hearing of certain proceedings before the Tribunal

(1) At the hearing of a proceeding referred to in clause 29C(1), the Tribunal must hold in private the hearing of any part of the proceeding during which—

(a) evidence or information is given, or a document is produced, to the Tribunal by—

(i) an agency or an officer of an agency; or

(ii) a Department Head or a member of staff of a Department Head; or

Sch. 1 cl. 29D(1)

(a)(iii) amended by No. 37/2014 s. 10(Sch. item 177.3).

(iii) the Chief Commissioner of Police or a member of Victoria Police personnel; or

(b) a submission is made to the Tribunal by or on behalf of an agency, Department Head or the Chief Commissioner of Police in relation to the claim that the document is an exempt document—

and must hold the hearing of any other part of the proceeding in public.

(2) Where the hearing of any part of a proceeding is held in private in accordance with subclause (1), the Tribunal—

(a) may, by order, give directions as to the persons who may be present at that hearing; and

(b) must give directions prohibiting the publication of—

(i) any evidence or information given to the Tribunal; or

(ii) the contents of any documents lodged with, or received in evidence by, or produced to, the Tribunal; or

(iii) any submission made to the Tribunal at that hearing.

30 Tribunal file in FOI proceeding not open for inspection

Despite anything to the contrary in section 146 , the file kept by the principal registrar under that section in a proceeding under the Freedom of Information Act 1982 is not open for inspection or copying by any person.

Sch. 1 Pt 9 (Heading) substituted by No. 13/2019 s. 210.

Part 9— Guardianship and Administration Act 2019

Sch. 1 cl. 31 amended by No. 101/1998 s. 23(b)(ii).

31 Constitution of Tribunal for proceedings

Sch. 1 cl. 31(1) amended by No. 64/2010 s. 33(1), substituted by No. 13/2019 s. 211(1).

(1) Section 64(2)(a) does not apply to a proceeding under the Guardianship and Administration Act 2019 , other than a proceeding for—

(a) an urgent guardianship order or urgent administration order referred to in section 36 of that Act;

(b) an administration (missing person) order or an urgent administration (missing person) order under Part 5 of that Act.

Sch. 1 cl. 31(2) amended by No. 17/2014 s. 160(Sch. 2 item 105.9(a)), substituted by No. 13/2019 s. 211(1).

(2) The Tribunal is to be constituted for the purposes of a proceeding for an urgent guardianship order or urgent administration order referred to in section 36 of the Guardianship and Administration Act 2019 by—

(a) a presidential member sitting alone; or

(b) a member who is an Australian lawyer sitting alone.

Sch. 1 cl. 31(3) inserted by No. 78/2000 s. 11(2), amended by No. 13/2019 s. 211(2).

(3) The Tribunal is to be constituted for the purposes of a rehearing under Division 1 of Part 7 of the Guardianship and Administration Act 2019 by—

Sch. 1 cl. 31(3)(a) amended by No. 41/2002 s. 43.

(a) a senior member or presidential member, if the order at first instance was made by the Tribunal constituted by an ordinary member;

(b) a presidential member, if the order at first instance was made by the Tribunal constituted by a senior member;

(d) a Vice President, if the order at first instance was made by the Tribunal constituted by more than one member (except where one or more of the members was a Vice President);

(e) the President, if the order at first instance was made by the Tribunal constituted by a Vice President (whether with or without others).

32 Notification of commencement

Sch. 1 cl. 32(1) amended by No. 13/2019 s. 212(1).

(1) Despite section 72(3), the Tribunal cannot make an order dispensing with service of a copy of an application under the Guardianship and Administration Act 2019 on the Public Advocate.

Sch. 1 cl. 32(2) amended by No. 13/2019 s. 212(2).

(2) The Tribunal must inform the Public Advocate if it makes an order under section 72(3) dispensing with service of a copy of an application under the Guardianship and Administration Act 2019 for a guardianship order or an administration order (including an urgent order) on the person in respect of whom the application is made.

Sch. 1 cl. 32(3) inserted by No. 64/2010 s. 33(2), substituted by No. 13/2019 s. 212(3).

(3) Subclause (2) does not apply to an application for an administration (missing person) order under Part 5 of the Guardianship and Administration Act 2019 .

Sch. 1 cl. 33 amended by No. 13/2019 s. 213.

33 Public Advocate may intervene or be joined

The Public Advocate—

(a) may intervene at any time; and

(b) is entitled to be joined as a party—

in a proceeding under the Guardianship and Administration Act 2019 .

Sch. 1 cl. 34 amended by No. 13/2019 s. 214.

34 Withdrawal of application does not preclude future application

Section 74(2)(d) does not apply to a proceeding under the Guardianship and Administration Act 2019 .

35 Referral to administrators for report

Sch. 1 cl. 35(1) amended by No. 13/2019 s. 215.

(1) The Tribunal may refer any matter relating to a proceeding under the Guardianship and Administration Act 2019 to a government department, public authority, service provider, the Public Advocate or a guardian or administrator appointed under that Act for investigation and report.

(2) A person or body to whom a matter is referred under this clause must investigate and report to the Tribunal on that matter.

(3) The Tribunal must not determine a question referred to a person or body under this clause unless the Tribunal has received and considered the report of the person or body.

Sch. 1 cl. 36 amended by No. 13/2019 s. 216.

36 Proceeding not invalidated by failure to give notice

A hearing or order of the Tribunal in a proceeding under the Guardianship and Administration Act 2019 is not invalidated or affected only because of a failure to give notice—

(a) to a person in respect of whom an application has been made or to a represented person (within the meaning of that Act) if the Tribunal—

(i) has dispensed with the requirement for notice to be given to that person; and

(ii) has notified the Public Advocate that it has done so; or

(b) to any other person.

37 Confidentiality of proceedings

Sch. 1 cl. 37(1) amended by No. 13/2019 s. 217(1).

(1) Unless the Tribunal orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any report of a proceeding under the Guardianship and Administration Act 2019 that identifies, or could reasonably lead to the identification of, a party to the proceeding.

Penalty: 20 penalty units.

(2) The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.

(3) An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding.

Sch. 1 cl. 37(4) inserted by No. 64/2010 s. 33(3), substituted by No. 13/2019 s. 217(2).

(4) This clause does not apply to an application for an administration (missing person) order under Part 5 of the Guardianship and Administration Act 2019 .

Sch. 1 cl. 37A inserted by No. 13/2019 s. 218.

37A Access to documents

(1) A person may make an application to the principal registrar that any documents lodged in relation to a proceeding under the Guardianship and Administration Act 2019 not be disclosed to a specified person or class of persons.

(2) The principal registrar must determine an application under subclause (1) fairly and according to the merits of the application.

Sch. 1 cl. 38 amended by No. 13/2019 s. 219.

38 Settlement offers

Sections 112 to 115 do not apply to a proceeding under the Guardianship and Administration Act 2019 .

Sch. 1 Pt 10 (Heading and cl. 39) substituted by No. 7/2017 s. 308.

Part 10— Heritage Act 2017

Sch. 1 cl. 39 substituted by No. 7/2017 s. 308.

39 National Trust must be given opportunity to be heard

The National Trust (within the meaning of the Heritage Act 2017 )—

(a) may intervene at any time; and

(b) is entitled to be joined as a party—

in a proceeding under Part 5 of that Act.

Note

Section 109 of the Heritage Act 2017 gives the Minister administering that Act a call-in power in respect of proceedings before the Tribunal under that Act.

Sch. 1 Pt 11 (Heading and cl. 40) amended by Nos 68/2001 s. 20(3)(4), 34/2013 s. 35(Sch. 2 items 9.7–9.9), repealed by No. 37/2016 s. 5.

* * * * *

Sch. 1 Pt 11A (Heading and cls 40A–40E) inserted by No. 98/2000 s. 78, repealed by No. 60/2014 s. 138.

* * * * *

Sch. 1 Pt 12 amended by No. 75/2003 ss 6, 7, repealed by No. 57/2014 s. 164.

* * * * *

Part 13— Land Acquisition and Compensation Act 1986

45 Documents to accompany application

An application under section 80(a) of the Land Acquisition and Compensation Act 1986 must be accompanied by—

(a) the notice of acquisition (if appropriate); and

(b) the initial offer of compensation made by the Authority (if any); and

(d) the reply (if any) of the Authority to the claim.

46 Costs

Nothing in section 109 applies to a proceeding under the Land Acquisition and Compensation Act 1986 ^[8].

Sch. 1 Pt 13A (Heading) substituted by No. 17/2014 s. 160(Sch. 2 item 105.9(b)).

Sch. 1 Pt 13A (Heading and cls 46A–46D) inserted by No. 99/2004 s. 8.1.3.

Part 13A — Legal Profession Uniform Law Application Act 2014

Sch. 1 cl. 46A inserted by No. 99/2004 s. 8.1.3, repealed by No. 17/2014 s. 160(Sch. 2 item 105.9(c)).

* * * * *

Sch. 1 cl. 46B inserted by No. 99/2004 s. 8.1.3.

46B Representation and appearances

Sch. 1 cl. 46B(1) amended by No. 17/2014 s. 160(Sch. 2 item 105.9(d)).

(1) A law practice that is a party to any proceeding under the Legal Profession Uniform Law (Victoria) may appear or be represented by—

(a) a principal of the law practice; or

(b) an employee of the law practice authorised in writing by a principal of the practice to appear on the practice's behalf.

(2) Subclause (1) does not affect or take away from section 62 (other than section 62(3)).

Sch. 1 cl. 46B(3) repealed by No. 17/2014 s. 160(Sch. 2 item 105.9(e)).

* * * * *

Sch. 1 cl. 46C inserted by No. 99/2004 s. 8.1.3, amended by No. 28/2007 s. 3(Sch. item 70), repealed by No. 17/2014 s. 160(Sch. 2 item 105.9(e)).

* * * * *

Sch. 1 cl. 46D inserted by No. 99/2004 s. 8.1.3.

46D Costs in disciplinary matters

Sch. 1 cl. 46D(1) repealed by No. 17/2014 s. 160(Sch. 2 item 105.9(e)).

* * * * *

Sch. 1 cl. 46D(2) amended by No. 17/2014 s. 160(Sch. 2 item 105.9(f)).

(2) The Tribunal must make an order requiring an Australian legal practitioner whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including the costs of the Victorian Legal Services Commissioner and the complainant (if any)) unless the Tribunal is satisfied that exceptional circumstances exist.

Sch. 1 cl. 46D(3) amended by No. 17/2014 s. 160(Sch. 2 item 105.9(f)).

(3) The Tribunal must not make an order for costs against the Victorian Legal Services Commissioner unless satisfied that special circumstances make it appropriate to do so.

Sch. 1 cl. 46D(4) amended by No. 17/2014 s. 160(Sch. 2 item 105.9(g)).

(4) Section 109 does not apply to a proceeding under Division 3 of Part 5.4 of the Legal Profession Uniform Law (Victoria).

Sch. 1 cl. 46D(5) repealed by No. 17/2014 s. 160(Sch. 2 item 105.9(h)).

* * * * *

Sch. 1 Pt 13B (Heading) amended by No. 9/2020 s. 390(Sch. 1 item 109.1).

Sch. 1 Pt 13B (Heading and cls 46E, 46F) inserted by No. 67/2008 s. 93.

Part 13B— Local Government Act 2020

Sch. 1 cl. 46E inserted by No. 67/2008 s. 93.

46E Constitution of Tribunal

Sch. 1 cl. 46E(1) amended by Nos 63/2012 s. 31, 53/2015 s. 95(1),

substituted by No. 9/2020 s. 390(Sch. 1 item 109.2).

(1) The Tribunal is to be constituted for the purposes of proceedings under section 171 of the Local Government Act 2020 by a senior member or presidential member who has been admitted to legal practice sitting alone.

Sch. 1 cl. 46E(2) amended by Nos 63/2012 s. 31, 9/2020 s. 390(Sch. 1 item 109.3).

(2) The Tribunal is to be constituted for the purposes of proceedings for review of a decision made by a Councillor Conduct Panel under section 170 of the Local Government Act 2020 by a senior member or presidential member who has been admitted to legal practice sitting alone.

Sch. 1 cl. 46F inserted by No. 67/2008 s. 93, substituted by No. 63/2012 s. 32.

46F Costs

Sch. 1 cl. 46F(1) substituted by No. 53/2015 s. 95(2),

amended by No. 9/2020 s. 390(Sch. 1 item 109.4).

(1) Despite section 109, the Council must bear the costs of the proceedings if the Council applies to VCAT for review under section 170(1) of the Local Government Act 2020 .

(2) The Council is not required to bear the costs of the proceedings under subclause (1) if VCAT otherwise orders.

Sch. 1 Pt 14 (Heading) amended by No 69/2016 s. 153.

Part 14— Medical Treatment Planning and Decisions Act 2016

Sch. 1 cl. 46G inserted by No. 69/2016 s. 154.

46G Constitution of Tribunal for proceedings

The Tribunal is to be constituted for the purposes of a rehearing under Division 2 of Part 6 of the Medical Treatment Planning and Decisions Act 2016 by—

(a) a senior member or presidential member, if the order at first instance was made by the Tribunal constituted by an ordinary member;

(b) a presidential member, if the order at first instance was made by the Tribunal constituted by a senior member;

(d) a Vice President, if the order at first instance was made by the Tribunal constituted by more than one member (except where one or more of the members was a Vice President);

(e) the President, if the order at first instance was made by the Tribunal constituted by a Vice President (whether with or without others).

Sch. 1 cl. 47 amended by No. 69/2016 s. 155.

47 Public Advocate may intervene or be joined

The Public Advocate—

(a) may intervene at any time; and

(b) is entitled to be joined as a party—

in a proceeding under the Medical Treatment Planning and Decisions Act 2016 .

48 Referral to administrators for report

Sch. 1 cl. 48(1) amended by No. 69/2016 s. 155.

(1) The Tribunal may refer any matter relating to a proceeding under the Medical Treatment Planning and Decisions Act 2016 to a government department, public authority, service provider, the Public Advocate or a guardian or administrator appointed under that Act for investigation and report.

(2) A person or body to whom a matter is referred under this clause must investigate and report to the Tribunal on that matter.

(3) The Tribunal must not determine a question referred to a person or body under this clause unless the Tribunal has received and considered the report of the person or body.

Sch. 1 cl. 49 amended by No. 69/2016 s. 155.

49 Proceeding not invalidated by failure to give notice

A hearing or order of the Tribunal in a proceeding under the Medical Treatment Planning and Decisions Act 2016 is not invalidated or affected only because of a failure to give notice—

(a) to a person in respect of whom an application has been made, if the Tribunal—

(i) has dispensed with the requirement for notice to be given to that person; and

(ii) has notified the Public Advocate that it has done so; or

(b) to any other person.

50 Confidentiality of proceedings

Sch. 1 cl. 50(1) amended by No. 69/2016 s. 155.

(1) Unless the Tribunal orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any report of a proceeding under the Medical Treatment Planning and Decisions Act 2016 that identifies, or could reasonably lead to the identification of, a party to the proceeding.

Penalty: 20 penalty units.

(2) The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.

(3) An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding.

Sch. 1 Pt 14A (Heading and cls 50A, 50B) inserted by No. 1/2020 s. 146.

Part 14A— Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020

Sch. 1 cl. 50A inserted by No. 1/2020 s. 146.

50A Tribunal need not be constituted by a lawyer

Section 64(2) does not apply to a proceeding under the Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020 .

Sch. 1 cl. 50B inserted by No. 1/2020 s. 146.

50B Costs

Section 112 does not apply to a proceeding under the Melbourne Strategic Assessment (Environment Mitigation Levy) Act 2020 .

Sch. 1 Pt 15 (Heading) amended by No. 63/2006 s. 61(Sch. item 32.1).

Part 15— Mineral Resources (Sustainable Development) Act 1990

Sch. 1 cl. 51 amended by No. 63/2006 s. 61(Sch. item 32.2).

51 Costs

Nothing in section 109 applies to a proceeding under the Mineral Resources (Sustainable Development) Act 1990 ^[9].

Sch. 1 Pt 15AA (Heading and cls 51AA–51AC) inserted by No. 49/2005 s. 67(2).

Part 15AA— Owner Drivers and Forestry Contractors Act 2005

Sch. 1 cl. 51AA inserted by No. 49/2005 s. 67(2).

51AA Representation

In a proceeding under Part 5 of the Owner Drivers and Forestry Contractors Act 2005 , a party may be represented by—

(a) a professional advocate; or

(b) the party's negotiating agent (within the meaning of that Act); or

(c) in the case of a party that is a contractor—an association, including a trade union, that represents contractors or a class of contractors; or

(d) in the case of a party that is a hirer—an association that represents hirers or a class of hirers.

Sch. 1 cl. 51AB inserted by No. 49/2005 s. 67(2).

51AB Costs

(1) In determining whether to make an order for costs in a proceeding under the Owner Drivers and Forestry Contractors Act 2005 , the Tribunal may have regard to whether a party refused to take part in, or withdrew from, alternative dispute resolution conducted under Part 5 of that Act.

(2) Subclause (1) is in addition to the matters that the Tribunal may have regard to under section 109(3).

Sch. 1 cl. 51AC inserted by No. 49/2005 s. 67(2).

51AC Effect of certain orders

Section 118(1) does not apply to an order made under section 46 or 51 of the Owner Drivers and Forestry Contractors Act 2005 .

Sch. 1 Pt 15A (Heading and cl. 51A) inserted by No. 92/1998 s. 13, repealed by No. 61/2005 s. 223.

* * * * *

Sch. 1 Pt 15AB (Heading and cl. 51AD) inserted by No. 69/2006 s. 223.

Part 15AB— Owners Corporations Act 2006

Sch. 1 cl. 51AD inserted by No. 69/2006 s. 223.

51AD Any member of Tribunal may make a declaration

Despite anything to the contrary in section 124, a declaration may be made in a proceeding under the Owners Corporations Act 2006 by the Tribunal constituted by any member.

Sch. cl. 51ADA inserted by No. 63/2010 s. 80.

51ADA Tribunal may make orders for costs incurred by owners corporations

(1) The Tribunal may make an order for costs under section 109 incurred by a lot owner or an owners corporation, either directly or indirectly (including the costs of professional and volunteer managers), in an application to the Tribunal relating to the recovery of fees and charges imposed by an owners corporation under Division 1 of Part 3 of the Owners Corporations Act 2006 .

(2) Costs awarded under subclause (1) are not limited to costs incurred by a professional advocate under section 62.

Sch. 1 Pt 15AC (Heading and cl. 51AE) inserted by No. 39/2010 s. 131.

Part 15AC—Pharmacy Regulation Act 2010

Sch. 1 cl. 51AE inserted by No. 39/2010 s. 131.

51AE Constitution of Tribunal for hearings

The Tribunal is to be constituted for the purposes of a proceeding under Division 5 of Part 3 of the Pharmacy Regulation Act 2010 by at least 3 members of whom at least 2 must be registered pharmacists that are regulated under the Health Practitioner Regulation National Law.

Sch. 1 Pt. 15AD (Heading and cls 51AF–51AJ) inserted by No. 57/2014 s. 165.

Part 15AD— Powers of Attorney Act 2014

Sch. 1 cl. 51AF inserted by No. 57/2014 s. 165.

51AF Constitution of Tribunal for proceedings

The Tribunal is to be constituted for the purposes of a rehearing under Division 4 of Part 8 of the Powers of Attorney Act 2014 by—

(a) a senior member or presidential member, if the order at first instance was made by the Tribunal constituted by an ordinary member;

(b) a presidential member, if the order at first instance was made by the Tribunal constituted by a senior member;

(d) a Vice President, if the order at first instance was made by the Tribunal constituted by more than one member (except where one or more of the members was a Vice President);

(e) the President, if the order at first instance was made by the Tribunal constituted by a Vice President (whether with or without others).

Sch. 1 cl. 51AG inserted by No. 57/2014 s. 165.

51AG Public Advocate may intervene or be joined

The Public Advocate—

(a) may intervene at any time; and

(b) is entitled to be joined as a party—

in a proceeding under Part 8 of the Powers of Attorney Act 2014 .

Sch. 1 cl. 51AH inserted by No. 57/2014 s. 165.

51AH Referral to administrators for report

(1) The Tribunal may refer any matter relating to a proceeding under Part 8 of the Powers of Attorney Act 2014 to a government department, public authority, service provider, the Public Advocate or a guardian or administrator appointed under that Act for investigation and report.

(2) A person or body to whom a matter is referred under this clause must investigate and report to the Tribunal on that matter.

(3) The Tribunal must not determine a question referred to a person or body under this clause unless the Tribunal has received and considered the report of the person or body.

Sch. 1 cl. 51AI inserted by No. 57/2014 s. 165.

51AI Proceeding not invalidated by failure to give notice

A hearing or order of the Tribunal in a proceeding under Part 8 of the Powers of Attorney Act 2014 is not invalidated or affected only because of a failure to give notice—

(a) to a person in respect of whom an application has been made, if the Tribunal—

(i) has dispensed with the requirement for notice to be given to that person; and

(ii) has notified the Public Advocate that it has done so; or

(b) to any other person.

Sch. 1 cl. 51AJ inserted by No. 57/2014 s. 165.

51AJ Confidentiality of proceedings

(1) Unless the Tribunal orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any report of a proceeding under Part 8 of the Powers of Attorney Act 2014 that identifies, or could reasonably lead to the identification of, a party to the proceeding.

Penalty: 20 penalty units.

(2) The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.

(3) An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding.

Part 16—Planning enactments

52 Constitution of Tribunal

Sch. 1 cl. 52(1) amended by No. 15/2018 s. 66(1).

(1) Subject to subclause (3), the Tribunal is to be constituted for the purposes of a proceeding under a planning enactment by—

(a) one member who has sound knowledge of, and experience in, planning or environmental practice in Victoria; or

(b) if it is constituted by 2 members, at least one member who has sound knowledge of, and experience in, planning or environmental practice in Victoria; or

(c) if it is constituted by 3, 4 or 5 members, at least 2 members who have sound knowledge of, and experience in, planning or environmental practice in Victoria.

(2) Section 64(2) does not apply to a proceeding under a planning enactment.

Sch. 1 cl. 52(3) inserted by No. 15/2018 s. 66(2).

(3) For a proceeding under a planning enactment, the Tribunal or principal registrar may nominate a person to conduct a compulsory conference or a mediation in accordance with Division 5 of Part 4.

Sch. 1 cl. 52(4) inserted by No. 15/2018 s. 66(2).

(4) A person nominated under subclause (3) must have sound knowledge of, and experience in, planning or environmental practice in Victoria.

53 Decision-maker not obliged to give reasons

Nothing in section 45 applies to a decision under a planning enactment.

54 Decision-maker not obliged to lodge documents

Nothing in section 49 applies to a decision under a planning enactment.

55 Further notice if there is a failure to comply with legislation

(1) If in any proceeding under a planning enactment the Tribunal considers that there has been a failure to comply with any enactment, the Tribunal may direct that a specified party give notice or further notice of the proceeding to any person, in the form and manner specified by the Tribunal.

(2) The Tribunal may adjourn the proceeding for the purpose of allowing notice or further notice to be given.

(3) If the Tribunal directs that a responsible authority gives notice or further notice under this clause, the Tribunal may order that another party pay the responsible authority's costs of giving the notice.

Sch. 1 cl. 56 (Heading) inserted by No. 62/2014 s. 41(1).

56 Person wishing to contest proceeding to lodge grounds

(1) A person who wishes to contest a proceeding under a planning enactment must lodge with the Tribunal, in accordance with the rules, a statement of the grounds on which the person intends to rely at the hearing of the proceeding.

(2) Subclause (1) does not apply to a responsible authority in a proceeding—

(a) for review of a decision of the authority—

(i) to refuse to grant a permit; or

(ii) to extend time within which any development is to be commenced or completed; or

(b) in respect of the failure of the authority to grant a permit.

(3) A copy of each statement lodged under subclause (1) must be served on the applicant and the responsible authority.

(4) If a person fails to comply with this clause, the Tribunal must not allow the person to be heard in the proceeding unless it has obtained and considered the views of the applicant and the responsible authority on whether or not the person should be heard.

Sch. 1 cl. 56(5) inserted by No. 62/2014 s. 41(2).

(5) A person who lodges a statement under subclause (1) may lodge with the statement a written notice that the person does not intend to participate in the hearing of the proceeding.

Sch. 1 cl. 56(6) inserted by No. 62/2014 s. 41(2).

(6) If a person lodges a notice under subclause (5), the person is not, or ceases to be, a party to the proceeding (as the case requires).

57 Intervention

(1) The relevant Minister may intervene at any time in a proceeding under a planning enactment if he or she considers that—

(a) the proceeding raises a major issue of policy; and

(b) in the case of a review brought under the Planning and Environment Act 1987 , the determination of the review may have a substantial effect on the future planning of the area in which the land the subject of the review is situated.

(2) For the avoidance of doubt, the relevant Minister may intervene in a proceeding under a planning enactment after the Tribunal has heard the proceeding but before it has delivered its final determination in the proceeding.

(3) Section 73 does not apply to a proceeding under a planning enactment.

(4) In this clause—

"relevant Minister" means the Minister administering the planning enactment under which the proceeding is brought.

Sch. 1 cl. 58 substituted by No. 53/2004 s. 3.

58 Minister's call in powers in Planning and Environment Act matters

(1) This clause applies to a proceeding for review of a decision under the Planning and Environment Act 1987 if the Minister administering the Planning and Environment Act 1987 considers that—

(a) the proceeding raises a major issue of policy; and

(b) the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.

(2) The Minister administering the Planning and Environment Act 1987 may—

(a) by notice in writing to the principal registrar call in the proceeding; or

(b) invite the Tribunal—

(i) to decline to hear or to continue to hear the proceeding and refer it to the Governor in Council for determination; or

(ii) to hear or to continue to hear the proceeding but, without determining it, refer it with recommendations to the Governor in Council for determination.

(3) A notice or invitation under subclause (2) is of no effect unless it is given—

(a) before the final determination of the proceeding; and

(b) no later than 7 days before the day fixed for the hearing of the proceeding.

(4) If the Minister calls in a proceeding under subclause (2)(a)—

(a) the Tribunal must not commence or continue to hear the proceeding; and

(b) the principal registrar must refer the proceeding to the Governor in Council for determination.

(5) In subclause (3) a reference to a hearing does not include a reference to a hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing.

(6) This clause applies to a proceeding existing on or after the commencement of section 3 of the Victorian Civil and Administrative Tribunal (Amendment) Act 2004 .

Sch. 1 cl. 59 substituted by No. 53/2004 s. 3.

59 Call in powers in other planning matters

(1) This clause applies to a proceeding for review of a decision under a planning enactment other than the Planning and Environment Act 1987 if the Minister administering the relevant planning enactment considers that the proceeding raises a major issue of policy.

(2) The Minister administering the relevant planning enactment may request the Minister administering the Planning and Environment Act 1987 to—

(a) by notice in writing to the principal registrar call in the proceeding; or

(b) invite the Tribunal—

(i) to decline to hear or to continue to hear the proceeding and refer it to the Governor in Council for determination; or

(ii) to hear or to continue to hear the proceeding but, without determining it, refer it with recommendations to the Governor in Council for determination.

(3) The Minister administering the Planning and Environment Act 1987 must comply with a request under subclause (2).

(4) A notice or invitation under this clause is of no effect unless it is given—

(a) before the final determination of the proceeding; and

(b) no later than 7 days before the day fixed for the hearing of the proceeding.

(5) If the Minister calls in a proceeding by notice under this clause—

(a) the Tribunal must not commence or continue to hear the proceeding; and

(b) the principal registrar must refer the proceeding to the Governor in Council for determination.

(6) In subclause (4) a reference to a hearing does not include a reference to a hearing in the nature of a directions hearing, preliminary hearing or interlocutory hearing.

(7) This clause applies to a proceeding existing on or after the commencement of section 3 of the Victorian Civil and Administrative Tribunal (Amendment) Act 2004 .

60 Tribunal may refer planning matters to Governor in Council

(1) This clause applies to a proceeding for review of a decision under a planning enactment if, after the hearing of the proceeding has begun, the Tribunal considers that—

(a) the proceeding raises a major issue of policy; and

(b) in the case of a proceeding for review

of a decision under the Planning and Environment Act 1987 , the determination of the proceeding may have a substantial effect on the achievement or development of planning objectives.

(2) In a proceeding to which this clause applies, the Tribunal—

(a) may invite the Minister administering the Planning and Environment Act 1987 to make submissions to the Tribunal; and

(b) may continue to hear the proceeding but, without determining it, refer it with recommendations to the Governor in Council for determination.

61 Effect of referral to Governor in Council

(1) If a proceeding is referred to the Governor in Council under clause 58, 59 or 60—

(a) the principal registrar must—

(i) give a copy of the recommendations that accompanied the referral to each party to the proceeding within a reasonable time after the referral; and

(ii) make a copy of the recommendations available during office hours for inspection by any person without charge; and

(b) the Governor in Council may determine the proceeding and make any orders in relation to the proceeding that could have been made by the Tribunal.

Sch. 1 cl. 61(1A) inserted by No. 53/2004 s. 4.

(1A) If a proceeding is referred to the Governor in Council under clause 58, 59 or 60, the Governor in Council is not bound by any decision, determination or order made by the Tribunal in the proceeding.

(2) An order made by the Governor in Council referred to in subclause (1)(b) is deemed to be an order of the Tribunal.

62 Tribunal may disregard failures to comply

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

Sch. 1 cl. 62A inserted by No. 52/2008 s. 268, repealed by No. 83/2012 s. 46(1).

* * * * *

63 Costs

(1) In determining whether or not to make an order for costs in a proceeding under the Planning and Environment Act 1987 , the Tribunal may have regard to whether the proceeding was brought primarily to secure or maintain a direct or indirect commercial advantage for the person who brought the proceeding.

(2) Subclause (1) is in addition to the matters that the Tribunal may have regard to under section 109(3).

64 Amendment of application

(1) This clause applies to the following proceedings—

(a) a proceeding for review of a decision under the Planning and Environment Act 1987 of a responsible authority in respect of an application for a permit or the failure of a responsible authority to grant a permit;

Sch. 1 cl. 64(1)(b) substituted by No. 39/2018 s. 59(3).

(b) a proceeding for review of a decision under the Environment Protection Act 2017 in relation to—

(i) a determination of the Environment Protection Authority or a delegated agency in respect of an application for a development licence, operating licence or a pilot project licence; or

(ii) a failure of the Environment Protection Authority or a delegated agency to determine an application for a development licence, operating licence or a pilot project licence.

(2) At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.

(3) Without limiting the generality of subclause (2), the Tribunal may make an amendment to an application for a permit under the Planning and Environment Act 1987 —

(a) as to a use or development different from the use or development mentioned in the application;

(b) as to the land to the use or development of which the application relates.

(4) This clause is in addition to, and does not limit or affect section 127.

65 Extension of time

(1) The Tribunal must not extend the time for commencing a proceeding under a planning enactment if—

(a) a proceeding in respect of the same or related facts and circumstances has already been set down for hearing; or

(b) a permit, licence or works approval has been issued to any person on or after the expiration of the time appointed for lodging an application for review of the decision to grant that permit, licence or approval.

(2) Subclause (1) does not apply if leave is granted under section 82B of the Planning and Environment Act 1987 .

66 Questions of law

Sch. 1 cl. 66(1) amended by No. 17/2014 s. 160(Sch. 2 item 105.10(a)).

(1) Despite section 107(1), if the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is an Australian lawyer, a question of law arising in the proceeding may be decided—

Sch. 1 cl. 66(1)(a) amended by No. 14/2006 s. 27(1).

(a) by the presiding member unless the parties that are present at the hearing of the proceeding disagree; or

Sch. 1 cl. 66(1)(b) amended by No. 17/2014 s. 160(Sch. 2 item 105.10(a)).

(b) in accordance with the opinion of a judicial member or a member who is an Australian lawyer nominated by the President.

(2) Section 107(3)(b) does not apply to a proceeding under a planning enactment.

Sch. 1 cl. 66(3) inserted by No. 14/2006 s. 27(2).

(3) For the purpose of this clause, the determination of a question of law in a proceeding under a planning enactment is deemed to be an order for the purposes of section 120.

Sch. 1 Part 16AA (Heading and cls 66AA–66AF) inserted by No. 60/2014 s. 139.

Part 16AA— Privacy and Data Protection Act 2014

Sch. 1 cl. 66AA (Heading) amended by No. 20/2017 s. 134(Sch. 1 item 19.2).

Sch. 1 cl. 66AA inserted by No. 60/2014 s. 139.

66AA Meaning of Information Commissioner

In this Part—

Sch. 1 cl. 66AA def. of Commis-sioner substituted as Information Commis-sioner by No. 20/2017 s. 134(Sch. 1 item 19.3).

"Information Commissioner" means the Information Commissioner appointed under the Freedom of Information Act 1982 in the Information Commissioner's capacity under the Privacy and Data Protection Act 2014 .

Sch. 1 cl. 66AB (Heading) amended by No. 20/2017 s. 134(Sch. 1 item 19.4).

Sch. 1 cl. 66AB inserted by No. 60/2014 s. 139, amended by No. 20/2017 s. 134(Sch. 1 item 19.5).

66AB Intervention by Information Commissioner

The Information Commissioner may intervene at any time in a proceeding under the Privacy and Data Protection Act 2014 .

Sch. 1 cl. 66AC inserted by No. 60/2014 s. 139.

66AC Notification in other proceedings

Sch. 1 cl. 66AC(1) amended by No. 20/2017 s. 134(Sch. 1 item 19.6).

(1) If an application is made under section 72 (interim order) or a referral under section 65 (Minister's referral) of the Privacy and Data Protection Act 2014 , the principal registrar must notify the Information Commissioner.

Sch. 1 cl. 66AC(2) amended by No. 20/2017 s. 134(Sch. 1 item 19.6).

(2) Subclause (1) does not apply in the case of an application by the Information Commissioner under section 72 of the Privacy and Data Protection Act 2014 .

Sch. 1 cl. 66AD (Heading) amended by No. 20/2017 s. 134(Sch. 1 item 19.7).

Sch. 1 cl. 66AD inserted by No. 60/2014 s. 139, amended by No. 20/2017 s. 134(Sch. 1 item 19.8).

66AD Information Commissioner may apply for interim injunction

The Information Commissioner may apply for an order granting an interim injunction under section 123 in a proceeding under the Privacy and Data Protection Act 2014 whether or not the Information Commissioner is a party to that proceeding.

Sch. 1 cl. 66AE inserted by No. 60/2014 s. 139, amended by No. 20/2017 s. 134(Sch. 1 item 19.9).

66AE Compulsory conference

The presiding member at a compulsory conference in a proceeding under the Privacy and Data Protection Act 2014 may refer any matter to the Information Commissioner for investigation, negotiation or conciliation.

Sch. 1 cl. 66AF inserted by No. 60/2014 s. 139.

66AF Settlement offers

Sections 112 to 115 do not apply to a proceeding under the Privacy and Data Protection Act 2014 .

Sch. 1 Pt 16A (Heading and cl. 66A) inserted by No. 71/2005 s. 6.

Part 16A— Property Law Act 1958

Sch. 1 cl. 66A inserted by No. 71/2005 s. 6.

66A Constitution of Tribunal

In a proceeding under Part IV of the Property Law Act 1958 , the Tribunal is to be constituted by or is to include a member who, in the opinion of the President, has knowledge of or experience in property law matters.

Sch. 1 Pt 16B (Heading and cls 66B–66G) inserted by No. 46/2008 s. 267.

Part 16B— Public Health and Wellbeing Act 2008

Sch. 1 cl. 66B inserted by No. 46/2008 s. 267.

66B Application of provisions

These provisions apply in respect of any proceeding under section 122 of the Public Health and Wellbeing Act 2008 .

Sch. 1 cl. 66C inserted by No. 46/2008 s. 267.

66C Constitution of Tribunal

The Tribunal is to be constituted by a presidential member.

Sch. 1 cl. 66D inserted by No. 46/2008 s. 267.

66D Compulsory conferences, mediation and settlement not to apply

Division 5 of Part 4 does not apply.

Sch. 1 cl. 66E inserted by No. 46/2008 s. 267, substituted by No. 23/2014 s. 21(2).

66E Costs of Tribunal appointed experts

Despite clause 7(5) of Schedule 3, a person to whom the public health order applies is not responsible for the costs of a Tribunal appointed expert under clause 7 of that Schedule.

Sch. 1 cl. 66F inserted by No. 46/2008 s. 267.

66F Restriction on access to information

Despite anything to the contrary in this Act, the Tribunal may order that the person to whom the public health order applies not hear any particular evidence or be permitted to inspect a submission or other document if the Tribunal is of the opinion that it is necessary to do so to prevent serious harm to the health or wellbeing of that person or of any other person.

Sch. 1 cl. 66G inserted by No. 46/2008 s. 267.

66G Confidentiality of proceeding

(1) Unless the Tribunal orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any report of a proceeding that identifies, or could reasonably lead to the identification of, a party to the proceeding.

Penalty: 20 penalty units.

(2) The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.

(3) An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding.

Sch. 1 Pt 16C (Heading and cls 66H–66M) inserted by No. 16/2010 s. 208 (as amended by No. 26/2011 s. 34(Sch. items 9.9, 9.10)).

Part 16C— Racial and Religious Tolerance Act 2001

Sch. 1 cl. 66H inserted by No. 16/2010 s. 208 (as amended by No. 26/2011 s. 34(Sch. items 9.9, 9.10)).

66H Meaning of Commission

In this Part—

"Commission" means the Victorian Equal Opportunity and Human Rights Commission.

Sch. 1 cl. 66I inserted by No. 16/2010 s. 208 (as amended by No. 26/2011 s. 34(Sch. items 9.9, 9.10)).

66I Unincorporated associations can be parties

(1) Section 61(1) does not apply to a proceeding under the Racial and Religious Tolerance Act 2001 .

Note

Section 21 of the Racial and Religious Tolerance Act 2001 contains provisions for unincorporated associations in proceedings under that Act.

(2) An unincorporated association that is a party to a proceeding under the Racial and Religious Tolerance Act 2001 has the same right to representation in the proceeding as a body corporate.

Sch. 1 cl. 66J inserted by No. 16/2010 s. 208 (as amended by No. 26/2011 s. 34(Sch. items 9.9, 9.10)).

66J Withdrawal of proceeding

(1) Despite section 74(1), an applicant is not required to obtain the leave of the Tribunal to withdraw an application under the Racial and Religious Tolerance Act 2001 .

(2) Nothing in subclause (1) affects the Tribunal's power to award costs in any proceeding that is withdrawn.

Sch. 1 cl. 66K inserted by No. 16/2010 s. 208 (as amended by No. 26/2011 s. 34(Sch. items 9.9, 9.10)).

66K Summary dismissal of application more than 12 months old

The Tribunal may make an order under section 76 summarily dismissing an application under the Racial and Religious Tolerance Act 2001 in respect of an alleged contravention of Part 2 of that Act if the alleged contravention occurred more than 12 months before the application was made.

Sch. 1 cl. 66L inserted by No. 16/2010 s. 208 (as amended by No. 26/2011 s. 34(Sch. items 9.9, 9.10)).

66L Commission may apply for interim injunction

The Commission may apply for an order granting an interim injunction under section 123 in a proceeding under the Racial and Religious Tolerance Act 2001 whether or not the Commission is a party to that proceeding.

Sch. 1 cl. 66M inserted by No. 16/2010 s. 208 (as amended by No. 26/2011 s. 34(Sch. items 9.9, 9.10)).

66M Evidence of mediation not admissible even if parties agree

(1) Evidence of anything said or done in the course of a mediation in a proceeding under the Racial and Religious Tolerance Act 2001 is not admissible in any hearing before the Tribunal in the proceeding, whether or not the parties agree to the giving of the evidence.

(2) Section 92 does not apply to a proceeding under the Racial and Religious Tolerance Act 2001 .

Sch. 1 Pt 16D (Heading and cl. 66N) inserted by No. 37/2018 s. 35.

Part 16D— Racing Act 1958

Sch. 1 cl. 66N inserted by No. 37/2018 s. 35.

66N Tribunal bound by findings of fact made by Victorian Racing Tribunal

Despite section 51, in determining a proceeding for review of a decision of the Victorian Racing Tribunal under section 83OH of the Racing Act 1958 in relation to a penalty imposed by the Victorian Racing Tribunal, the Tribunal is bound by the findings of fact that were made by the Victorian Racing Tribunal.

Part 17— Residential Tenancies Act 1997

Sch. 1 cl. 67AA inserted by No. 38/2018 s. 318.

67AA Application of provisions

Except for the following specified provisions, this Part does not apply in respect of any proceeding under Part 12A of the Residential Tenancies Act 1997 —

(a) clauses 67 to 68;

Sch. 1 cl. 67AA(b) substituted by No. 45/2018 s. 378(1).

(b) clauses 71, 72, 73, 73A, 73B, 74 and 75;

67 Representation

Despite section 62(1)(b), a party to a proceeding for a possession order under the Residential Tenancies Act 1997 may be represented by a professional advocate.

Sch. 1 cl. 67A inserted by No. 83/2012 s. 46(2).

67A Support person

Sch. 1 cl. 67A(1) amended by No. 53/2016 s. 126(1), substituted by No. 45/2018 s. 378(2).

(1) The following parties to a proceeding under the Residential Tenancies Act 1997 may be accompanied at a hearing by a person ( support person ) for the purposes of that person providing support to the party—

(a) a party who is a protected person;

(b) a party who is a respondent under a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order.

(2) The support person may be—

(a) a legal practitioner; or

(b) a social worker; or

(d) any other person chosen by the party.

Sch. 1 cl. 67A(3) inserted by No. 53/2016 s. 126(2), substituted by No. 45/2018 s. 378(3).

(3) In this clause—

family violence intervention order has the same meaning as in the Family Violence Protection Act 2008 ;

"family violence safety notice" has the same meaning as in the Family Violence Protection Act 2008 ;

personal safety intervention order has the same meaning as in the Personal Safety Intervention Orders Act 2010 ;

"protected person" has the same meaning as in the Residential Tenancies Act 1997 ;

"recognised non-local DVO" has the same meaning as in the Residential Tenancies Act 1997 .

Sch. 1 cl. 68 substituted by No. 45/2018 s. 378(4).

68 Notification of commencement in circumstances of family violence

(1) The principal registrar must undertake service of a copy of an application on an applicant's behalf under section 72 if—

(a) the applicant is a protected person; and

(b) the applicant has made an application under section 91V, 142S, 206AG or 207M of the Residential Tenancies Act 1997 ; and

(c) the applicant is required under section 72(1) to serve a copy of the application on a person who is a respondent under a family violence safety notice, family violence intervention order, recognised non-local DVO or personal safety intervention order under which the applicant is a protected person; and

(d) the applicant requests the principal registrar to undertake service on the respondent on behalf of the protected person; and

(e) the applicant gives the principal registrar the last known residential or business address of the respondent.

(2) In this clause—

family violence intervention order has the same meaning as in the Family Violence Protection Act 2008 ;

"family violence safety notice" has the same meaning as in the Family Violence Protection Act 2008 ;

personal safety intervention order has the same meaning as in the Personal Safety Intervention Orders Act 2010 ;

"protected person" has the same meaning as in the Residential Tenancies Act 1997 ;

"recognised non-local DVO" has the same meaning as in the Residential Tenancies Act 1997 .

69 Withdrawal of application

(1) Despite section 74(1), an applicant is not required to obtain the leave of the Tribunal to withdraw an application under the Residential Tenancies Act 1997 .

(2) Nothing in subclause (1) affects the Tribunal's power to award costs in any proceeding that is withdrawn.

Sch. 1 cl. 70 repealed by No. 62/2014 s. 42.

* * * * *

71 Resolution of objection to certain members constituting the Tribunal

(1) If a party to a proceeding under the Residential Tenancies Act 1997 objects to the member who presided over a compulsory conference in the proceeding, or to a mediator in the proceeding, constituting the Tribunal for the purpose of hearing the proceeding (whether with or without others), the Tribunal must determine whether or not the member may continue to constitute the Tribunal for that purpose.

(2) For the purpose of making a determination under subclause (1), the Tribunal may be constituted (whether with or without others) by the member against whom the objection was made.

(3) Section 86(3) does not apply to a proceeding under the Residential Tenancies Act 1997 .

72 Referral to Director

(1) The principal registrar must refer an application under the Residential Tenancies Act 1997 to the Director for investigation and report if it is of a kind that the Director has directed the principal registrar to refer.

(2) At any time before the hearing of an application under the Residential Tenancies Act 1997 the principal registrar or the Tribunal, at the request of a party, may refer the application to the Director for investigation and report.

(3) Subclause (2) does not apply to an application for a possession order.

(4) The Director must investigate and report to the Tribunal on any application referred to him or her under this clause.

(5) The Tribunal must not determine an application referred to the Director unless the Tribunal has received and considered the Director's report.

Sch. 1 cl. 72A inserted by No. 45/2018 s. 378(5).

72A Notification of certain orders and application withdrawals for bonds

The principal registrar must give written notice to the Residential Tenancies Bond Authority established under section 429 of the Residential Tenancies Act 1997 of—

(a) an order by the Tribunal under section 420B of that Act; or

(b) the withdrawal of any application made under section 419A of that Act.

73 Amendment of application

With the consent of each party, the principal registrar may amend an application in a proceeding under the Residential Tenancies Act 1997 at any time before it is heard.

Sch. 1 cl. 73A inserted by No. 52/2008 s. 269, amended by No. 53/2016 s. 127, substituted by No. 45/2018 s. 378(6).

73A Evidence

(1) Despite section 102(1)(b), in a proceeding under the Residential Tenancies Act 1997 , unless the Tribunal gives leave—

(a) a person subjected to family violence must not be personally cross-examined by the person who subjected that person to the family violence; and

(b) a protected person under a personal safety intervention order must not be personally cross-examined by the person against whom the personal safety intervention order was made.

(2) For the purposes of subclause (1), a reference to a person subjected to family violence includes a protected person under a family violence safety notice, family violence intervention order or recognised non-local DVO.

(3) In this clause—

family violence intervention order has the same meaning as in the Family Violence Protection Act 2008 ;

"family violence safety notice" has the same meaning as in the Family Violence Protection Act 2008 ;

personal safety intervention order has the same meaning as in the Personal Safety Intervention Orders Act 2010 ;

"recognised non-local DVO" has the same meaning as in the Residential Tenancies Act 1997 .

Sch. 1 cl. 73B inserted by No. 52/2008 s. 269.

73B Alternative arrangements for giving evidence

(1) The Tribunal may direct that any of the following alternative arrangements be made for the giving of evidence by a witness in a proceeding under the Residential Tenancies Act 1997 —

(a) permitting the evidence to be given from a place other than the hearing room by means of closed circuit television or other facilities that enable communication between that place and the hearing room;

(b) using screens to remove a party from the witness's direct line of vision;

(c) permitting a person to be beside the witness while the witness is giving evidence for the purpose of providing emotional support to the witness;

Sch. 1 cl. 73B(1)(d) amended by No. 17/2014 s. 160(Sch. 2 item 105.10(b)).

(d) requiring Australian lawyers to be seated while examining or cross‑examining the witness;

(e) permitting only persons specified by the Tribunal to be present while the witness is giving evidence;

(f) any other alternative arrangements the Tribunal considers appropriate.

(2) If the witness is 18 years of age or over, the Tribunal may make a direction under subclause (1) on its own initiative or on the application of a party to the proceeding.

(3) If the witness is under 18 years of age, the Tribunal must make a direction under subclause (1) unless it considers it is not appropriate to do so having regard to—

(a) the wishes expressed by the witness; and

(b) the age and maturity of the witness; and

(4) The Tribunal may hear an application under subclause (2), or ascertain the matters in subclause (3), in camera and, except as otherwise directed by the Tribunal, persons who are not parties to the proceeding or their representatives are not permitted to be present while the hearing takes place or the matters are being ascertained.

(5) Any place outside the hearing room where a witness is permitted to give evidence under this section is to be taken to be part of the hearing room while the witness is there for the purpose of giving evidence.

(6) The Tribunal may at any time in the course of the proceeding vary or revoke a direction made under subclause (1) on its own initiative or on the application of a party to the proceeding.

(7) In this section—

"hearing room" means the room in which the hearing for the proceeding is being conducted.

74 Evidence before Tribunal cannot be used in criminal proceedings

Evidence before the Tribunal in a proceeding under the Residential Tenancies Act 1997 cannot be used in criminal proceedings except proceedings for an offence against this Act or the Residential Tenancies Act 1997 or for perjury.

75 Any member of Tribunal may make a declaration

Despite anything to the contrary in section 124 , a declaration may be made in a proceeding under the Residential Tenancies Act 1997 by the Tribunal constituted by any member.

76 Reasons must be requested at time of decision

Despite anything to the contrary in section 117(2) , the Tribunal is not obliged to give a person written reasons for an order made in a proceeding under the Residential Tenancies Act 1997 unless the person has made a request to the Tribunal for written reasons for orders that may be made in the proceeding before or at the time of the giving or notification of the Tribunal's decision in the proceeding.

Sch. 1 cl. 77 (Heading) amended by No. 45/2018 s. 378(7).

Sch. 1 cl. 77 amended by No. 45/2018 s. 378(8)(a).

77 Service on residential rental providers

In addition to any manner of service provided for in section 140, a notice or other document in a proceeding under the Residential Tenancies Act 1997 may be served on, or given to, a residential rental provider by—

Sch. 1 cl. 77(a) amended by No. 45/2018 s. 378(8)(b).

(a) delivering it personally to the residential rental provider's agent or to the person who usually collects the rent; or

Sch. 1 cl. 77(b) amended by No. 45/2018 s. 378(8)(b).

(b) sending it by post to the residential rental provider's agent at the agent's usual place of business; or

Sch. 1 cl. 77(c) amended by No. 45/2018 s. 378(8)(b).

Sch. 1 cl. 77A inserted by No. 45/2002 s. 101.

77A Failure to comply with determinations

Section 133 does not apply to the failure to comply with a determination of the Tribunal made under the Residential Tenancies Act 1997 .

Note

See section 480 of the Residential Tenancies Act 1997 .

Sch. 1 cl. 77B inserted by No. 38/2018 s. 319.

77B Appointment of litigation guardian

If a party to any proceeding under Part 12A of the Residential Tenancies Act 1997 is a person with a disability, the Tribunal may appoint a litigation guardian, in accordance with the rules, to conduct the proceeding on behalf of the person with a disability.

Sch. 1 cl. 77C inserted by No. 38/2018 s. 319.

77C Fees

Despite section 68, no fee is payable in respect of an application under Part 12A of the Residential Tenancies Act 1997 .

Sch. 1 cl. 77D inserted by No. 38/2018 s. 319.

77D Commencement

The Tribunal must commence the hearing of a proceeding on an application under Part 12A of the Residential Tenancies Act 1997 within 30 days of the application being lodged with the Tribunal unless a provision of that Part of that Act specifies a different period of time for commencement of the hearing of the proceeding.

Sch. 1 cl. 77E inserted by No. 38/2018 s. 319.

77E Costs of Tribunal experts

Despite clause 7(5) of Schedule 3, a person with a disability is not responsible for the costs of a Tribunal appointed expert under clause 7 of that Schedule in respect of a proceeding under Part 12A of the Residential Tenancies Act 1997 .

Sch. 1 cl. 77F inserted by No. 38/2018 s. 319.

77F Service on SDA providers

(a) delivering it personally to the SDA provider's agent or to the person who usually collects the rent; or

(b) sending it by post to the SDA provider's agent at the agent's usual place of business; or

Sch. 1 Pt 18 (Heading and cls 78–82) inserted by No. 81/2014 s. 5.

Part 18— Sentencing Act 1991

Sch. 1 cl. 78 inserted by No. 81/2014 s. 5.

78 Application of Part

The Part applies in respect of a proceeding under Part 8 of the Sentencing Act 1991 .

Sch. 1 cl. 79 inserted by No. 81/2014 s. 5, amended by No. 3/2016 s. 17.

79 Constitution of Tribunal

The Tribunal is to be constituted by a presidential member or senior member.

Sch. 1 cl. 80 inserted by No. 81/2014 s. 5.

80 Confidentiality of proceeding

(1) Unless the Tribunal orders otherwise, a person must not publish or broadcast, or cause to be published or broadcast, any report of a proceeding that identifies, or could reasonably lead to the identification of—

(a) a party to the proceeding; or

(b) any other person who has given evidence in the proceeding as to—

(i) whether any person involved in the conduct constituting the offence (including the applicant) that is the subject of the proceeding consented to the conduct; or

(ii) the ages, or respective ages, of any such persons at the time of that conduct.

Penalty: 20 penalty units.

(2) The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.

(3) An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding or other person covered by subclause (1)(b).

Sch. 1 cl. 81 inserted by No. 81/2014 s. 5.

81 Effect of original decision pending review

(1) This clause applies, despite anything to the contrary in section 50, if a data controller (within the meaning of Part 8 of the Sentencing Act 1991 ) commences a proceeding.

(2) The operation of the decision that is the subject of the proceeding is stayed pending the determination by the Tribunal of the proceeding and the expiration of the appeal period.

(3) For the purposes of subclause (2) the appeal period expires—

(a) at the end of the period during which an application for leave to appeal from the order of the Tribunal determining the proceeding may be made under Part 5 if an application is not made within that period; or

(b) if an application for leave to appeal is made, when that application is determined if leave is not granted; or

(c) if leave is granted, at the end of the period during which the appeal may be instituted under Part 5 if an appeal is not instituted within that period; or

(d) if an appeal is instituted, when the appeal is determined.

Sch. 1 cl. 82 inserted by No. 81/2014 s. 5.

82 Tribunal file not open for inspection

Despite anything to the contrary in section 146, the file kept by the principal registrar under that section in a proceeding is not open for inspection or copying by any person.

Sch. 1 Pt 17A (Heading and cl. 77B) inserted by No. 4/2003 s. 123, repealed by No. 79/2006 s. 57(3).

* * * * *

Sch. 1 Pt 18 (Heading and cls 78–87) repealed by No. 30/2003 s. 80.

* * * * *

Part 19—Taxing Acts

88 Tribunal need not be constituted by a lawyer

Section 64(2) does not apply to a proceeding under a taxing Act.

89 Information to be provided to the Tribunal

(1) If the Commissioner of State Revenue is requested to refer a decision to the Tribunal under a taxing Act, the Commissioner must lodge with the Tribunal—

(a) written notice of the request; and

(b) 2 copies of all documents on file in the Commissioner's office relating to the relevant—

(i) assessment or decision; and

(ii) objection; and

(iii) disallowance of objection.

(2) Section 49 does not apply to a proceeding

under a taxing Act for review of a decision of the Commissioner of State Revenue.

Sch. 1 cl. 90 amended by No. 74/2000 s. 3(Sch. 1 item 139.2).

90 Compulsory conference in tax proceedings

In a proceeding under a taxing Act for review of a decision of the Commissioner of State Revenue, the Tribunal or the principal registrar may only require the parties to attend a compulsory conference with the consent of the Commissioner.

91 Costs

(1) Each party is to bear their own costs in a proceeding under a taxing Act.

(2) Division 8 of Part 4 does not apply to a proceeding under a taxing Act.

Sch. 1 cl. 91A inserted by No. 44/2008 s. 105(2).

91A Reference to Commissioner to be construed as Registrar in some circumstances

For the purposes of this Part, if the taxing Act is the Unclaimed Money Act 2008 , any reference to the Commissioner of State Revenue is taken to be a reference to the Registrar of Unclaimed Money.

Sch. 1 Pt 19A (Heading and cl. 91B) inserted by No. 62/2010 s. 129.

Part 19A— Traditional Owner Settlement Act 2010

Sch. 1 cl. 91B inserted by No. 62/2010 s. 129.

91B Constitution of Tribunal for Traditional Owner Settlement Matters

The Tribunal is to be constituted for the purposes of a proceeding under Part 4 of the Traditional Owner Settlement Act 2010 by—

(a) one member who has sound knowledge of, and experience in, Aboriginal culture and land use; or

(b) if it is constituted by 2 or more members, at least one member who has sound knowledge of, and experience in, Aboriginal culture and land use.

Part 20— Transport Accident Act 1986

92 Costs

Nothing in section 109 applies to a proceeding under the Transport Accident Act 1986 ^[10].

93 Settlement offers

Despite section 112(1)(a), sections 112 to 115 apply to a proceeding for review of a decision under section 77 of the Transport Accident Act 1986 .

94 Tribunal cannot alter time limits

Section 126(1) and (2)(a) do not apply to a proceeding under the Transport Accident Act 1986 .

Part 21— Valuation of Land Act 1960

95 Tribunal need not be constituted by a lawyer

Section 64(2) does not apply to a proceeding under the Valuation of Land Act 1960 .

96 Information to be provided to the Tribunal

Sch. 1 cl. 96(1) repealed by No. 22/2006 s. 19(1)(a).

* * * * *

Sch. 1 cl. 96(2) amended by No. 22/2006 s. 19(1)(b).

(2) Section 49 does not apply in the case of an application for review under section 22(1) of the Valuation of Land Act 1960 .

Sch. 1 cl. 97 amended by No. 22/2006 s. 19(2).

97 Notification of commencement

Section 72 does not apply to a proceeding under section 22 of the Valuation of Land Act 1960 .

Sch. 1 cl. 97A inserted by No. 62/2014 s. 43.

97A Valuer-general may intervene and be represented

The valuer-general may intervene, and be represented by a professional advocate, at any time in a proceeding for review under Division 4 of Part III of the Valuation of Land Act 1960 .

98 Questions of law

Sch. 1 cl. 98(1) amended by No. 17/2014 s. 160(Sch. 2 item 105.10(c)).

(1) Despite section 107(1), if the Tribunal is constituted for the purposes of a proceeding under the Valuation of Land Act 1960 without a judicial member or a member who is an Australian lawyer, a question of law arising in the proceeding may be decided—

(a) by the presiding member if the parties agree; or

Sch. 1 cl. 98(1)(b) amended by No. 17/2014 s. 160(Sch. 2 item 105.10(c)).

(b) in accordance with the opinion of a judicial member or a member who is an Australian lawyer nominated by the President.

(2) Section 107(3)(b) does not apply to a proceeding under the Valuation of Land Act 1960 .

99 Costs

Nothing in section 109 applies to a proceeding under the Valuation of Land Act 1960 ^[11].

Sch. 1 Pt 22 (Heading and cl. 100) inserted by No. 96/2001 s. 89.

Part 22—Victorian Institute of Teaching Act 2001

Sch. 1 cl. 100 inserted by No. 96/2001 s. 89, amended by No. 24/2006 s. 6.1.2(Sch. 7 item 44).

100 Constitution of Tribunal for teaching matters

Despite section 64(2), in a proceeding under the Education and Training Reform Act 2006 , the Tribunal is to be constituted by, or to include, a member who, in the opinion of the President, has knowledge of, or experience in, the teaching profession.

Sch. 1 Pt 22A (Heading and cl. 100A) inserted by No. 43/2020 s. 48.

Part 22A— Voluntary Assisted Dying Act 2017

Sch. 1 cl 100A inserted by No. 43/2020 s. 48.

100A Confidentiality of proceedings

(1) Unless the Tribunal orders otherwise, a person must not publish or broadcast or cause to be published or broadcast any report of a proceeding under the Voluntary Assisted Dying Act 2017 that identifies, or could reasonably lead to the identification of, a party to the proceeding.

Penalty: 20 penalty units.

(2) The Tribunal may make an order under subclause (1) only if it considers that it would be in the public interest to do so.

(3) An order of the Tribunal under subclause (1) must specify that pictures are not to be taken of any party to the proceeding.

Sch. 1 Pt 23 (Heading and cls 101–103) inserted by No. 57/2005 s. 52, amended by Nos 61/2012 ss 17, 18, 66/2014 ss 44, 45, substituted as Sch. 1 Pt 23 (Heading and cl. 101) by No. 34/2020 s. 244.

Part 23— Worker Screening Act 2020

Sch. 1 cl. 101 substituted by No. 34/2020 s. 244.

101 Constitution of Tribunal for Worker Screening matters

The Tribunal is to be constituted for the purposes of a proceeding under the Worker Screening Act 2020 by a presidential member or a senior member sitting alone.

Sch. 1 Pt 24 (Heading and cls 104, 105) inserted by No. 67/2013 s. 649(Sch. 9 item 33).

Part 24— Workplace Injury Rehabilitation and Compensation Act 2013

Sch. 1 cl. 104 inserted by No. 67/2013 s. 649(Sch. 9 item 33).

104 Tribunal may request information about a determination

(1) The Tribunal may request the Victorian WorkCover Authority to provide the Tribunal with any information held by the Authority that relates to an application made by an employer for a review of a reviewable decision or a determination made by the Authority.

(2) The Authority must comply with a request under subclause (1).

Sch. 1 cl. 105 inserted by No. 67/2013 s. 649(Sch. 9 item 33).

105 Compulsory conference in WorkCover proceedings

In a proceeding for review of a reviewable decision or a determination by the Victorian WorkCover Authority, the Tribunal or the principal registrar may require the parties to attend a compulsory conference only with the consent of the Authority.

Sch. 2 amended by Nos 45/2002 s. 102, 22/2012 s. 88, 58/2013 s. 64, 62/2014 s. 44, 42/2014 s. 108, 20/2015 s. 20, 38/2017 s. 42, 33/2018 s. 67, 15/2018 s. 74, 13/2019 s. 220, 19/2019 s. 273, 15/2018 s. 71, 31/2021 s. 6, 20/2022 s. 40.

Victorian Current Acts

Search AustLII

All Databases

Cases & Legislation

Journals & Scholarship

Law Reform

Treaties

Libraries

Communities

LawCite

Australia

CTH

ACT

NSW

NT

QLD

SA

TAS

VIC

WA

New Zealand

Specific Year

Any

Any

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 - SCHEDULE 1