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1. The Non-Presiding Members
of the LRT |
There are a number of ways in which a
person can become a Non-Presiding Member of the LRT. LRT Non-Presiding
Members are -
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- referees of the LRT
2;
- members of the Land Court;
- members of the Land Tribunal;
- persons appointed as Non-Presiding Members.3
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The distinction between different types
of Non-Presiding Members can be important in some circumstances. For
example, Land Court Non-Presiding Members cannot sit on an LRT panel4 but
can sit alone to hear compensation matters and proceedings about At Risk
Agreements under the Mineral Resources Act 1989 (MRA)5 . Further, some
Non-Presiding Members may be appointed to the LRT on a full-time basis6
whilst others receive sitting fees for hearings in which they
participate. For example, the Mining Referee is appointed as a full time
Non-presiding member. The remuneration and allowances payable to each
Non-Presiding Member are decided by the Governor-in-Council7.
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2. Involvement of
Non-Presiding Members in Hearings |
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The LRT Act provides for matters to be heard by either:
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In some cases, the President is required to
constitute the panel in a prescribed way.9 In other cases, the President
can decide how to constitute the Tribunal for a hearing. In exercising
that discretion, the President must have regard to:
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the degree of public importance or complexity of
the proceeding;
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the need for the Tribunal's affairs to be conducted
promptly and efficiently;
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the nature of the issues likely to be involved in
the proceeding.10
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The Mining Referee or a Presiding
Member can hear many matters under the MRA. A Land Court member can also
sit alone on some compensation matters under the MRA. Further, no Member
other than a Land Court member can hear matters relating to "At Risk
Agreements" under the MRA.11
When performing their duties, Non-Presiding Members have the same
protection and immunity as a judge of the Supreme Court acting as a
Judge. This includes a Non-Presiding Member performing or exercising an
administrative function or power conferred on the Member under an Act.
12
All Members of the Tribunal are prohibited from holding interests in
mining tenures, except in limited circumstances.13
Non-Presiding Members of the Tribunal are also required to disclose to
the President and the parties, any conflict of interest about a
proceeding before the Tribunal. A Member has a conflict of interest if
he or she has a financial or other interest that could conflict with the
proper performance of his or her functions for the proceedings.14
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| 3. The role of
a Non-Presiding Member |
If a Non-Presiding Member is allocated
a matter as a single member sitting alone, the member decides that
matter. For matters heard by a panel, the Presiding Members on the panel
make the decision. The role of a Non-Presiding Member included in a
panel is to assist the Presiding Member(s) by providing:
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- advice about matters within the Non-Presiding Member's knowledge
or experience that are relevant to a question before the Tribunal;
- assistance in the conduct of the proceedings.15
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Non-Presiding Members can participate
fully in the proceedings and will have the opportunity to raise issues
with the parties and to ask questions of the witnesses called by the
parties. Non-Presiding Members also have a duty to provide, where
relevant, advice and assistance to the Presiding Member(s). There
is legal authority to the effect that the Non-Presiding Members of
a panel must participate in the Tribunal's proceedings in order for
the Tribunal to be properly constitutued. 16
If a Non-Presiding Member gives advice to the Presiding Member about
matters within their knowledge or experience, the Tribunal has
procedures to ensure natural justice is afforded to the parties.
Non-Presiding Members will be asked to tender their advice to the
Presiding Members in open court. This will also allow parties to make
submissions to the Presiding Member(s) about the advice received.
Non-Presiding Members will also be asked to identify any data, research
or other publications relied upon by them in giving their advice. This
will allow parties to consider the material relied upon by the
Non-Presiding Member, when they make their submissions to the Presiding
Members about that advice.
Non-Presiding Members should feel free to discuss these and any other
issues about the conduct of the proceedings with the Presiding Member(s)
on the panel.
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This
is a document prepared for inclusion in a folder of materials
for Non-Presiding Members
-
s.
16 LRT Act provides for the appointment of a mediation referee,
an indigenous issues referee and a mining referee.
-
s.
15 LRT Act.
-
s.
39 LRT Act.
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Schedule
1 LRT Act.
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s.
16(2) Referee non-presiding members are appointed on the basis
of full-time employment.
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s.
24 LRT Act.
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LRT
Act s. 39.
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LRT
Act s. 40 and Schedule 1.
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LRT
Act s. 39(4).
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LRT
Act Schedule 1.
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LRT
Act s. 59.
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LRT
Act s. 26.
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LRT
Act s. 27.
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LRT
Act s. 41.
- GJ Coles &
Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503,
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