Commonwealth Consolidated Acts

DEFENCE ACT 1903 - SECT 110XB

When this section applies

  (1)   This section applies if:

  (a)   a Tribunal member (the unavailable member ) constitutes, or is one of the Tribunal members who constitute, the Tribunal for the purpose of a Tribunal proceeding; and

  (b)   before the proceeding is completed:

  (i)   the Tribunal member stops being a Tribunal member for any reason; or

  (ii)   the Tribunal member is not available for the purpose of the proceeding for any reason; or

  (iii)   the Tribunal member is prohibited by section   110XG from continuing to take part   in the proceeding; or

  (iv)   the Tribunal member is directed by the Chair not to continue to take part   in the proceeding.

Chair to direct course of action

  (2)   The Chair must either:

  (a)   direct that the Tribunal proceeding be started afresh; or

  (b)   direct that the Tribunal proceeding be completed.

If Chair directs that proceeding be started afresh

  (3)   If the Chair directs that the Tribunal proceeding be started afresh:

  (a)   the Chair must, in accordance with section   110XA, determine the Tribunal member or members who are to constitute the Tribunal for that purpose; and

  (b)   subject to paragraph   (c) of this subsection, the Tribunal, as so constituted, must start to deal with the proceeding afresh; and

  (c)   the Tribunal, as so constituted, may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence given or submissions made).

If Chair directs that proceeding be completed

  (4)   If the Chair directs that the Tribunal proceeding be completed:

  (a)   if the unavailable member constituted the Tribunal--the Chair must direct another Tribunal member or Tribunal members to constitute the Tribunal for the purpose of completing the proceeding; or

  (b)   if the unavailable member is one of the Tribunal members who constituted the Tribunal--the Chair must:

  (i)   direct the remaining Tribunal member or Tribunal members to constitute the Tribunal for the purpose of completing the Tribunal proceeding; or

  (ii)   direct a Tribunal member or Tribunal members to constitute the Tribunal for the purpose of completing the Tribunal proceeding.

  (5)   If subsection   (4) applies in relation to a Tribunal proceeding:

  (a)   if the Tribunal proceeding is an inquiry--the requirement in subsection   110XA(2) that the Tribunal must be constituted by 3 or more Tribunal members does not apply; and

  (b)   a direction under subparagraph   (4)(b)(ii) of this section may be given to any Tribunal member (including the remaining Tribunal member or one of the remaining Tribunal members); and

  (c)   the Tribunal, as constituted in accordance with a direction under subsection   (4) of this section, must complete the Tribunal proceeding; and

  (d)   for the purpose of completing the Tribunal proceeding, the Tribunal, as so constituted, may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence given or submissions made).

Formal requirements for directions

  (6)   A direction by the Chair under this section must be in writing.

  (7)   A direction by the Chair under this section is not a legislative instrument.