Document ID: chunk:federal_register_of_legislation:C2025C00141:section:42:p1
Version: federal_register_of_legislation:C2025C00141
Segment Type: section
Provision Reference: s 42 (pt 1/2)
Character Range: 74699–77438

42  Exception—President, on appeal, refers Tribunal decision for material error

When this section applies
 (1) If:
 (a) a proceeding relates to a guidance and appeals panel application taken to be made because the President refers a decision of the Tribunal (the Tribunal decision) to the guidance and appeals panel; and
 (b) the President is not satisfied that the Tribunal decision raises an issue of significance to administrative decision‑making;
the President must constitute the Tribunal for the purposes of the proceeding in accordance with this section instead of section 39.
Note: Under section 128, the President may refer a decision of the Tribunal to the guidance and appeals panel if the President is satisfied of either or both of the following:
(a) the decision raises an issue of significance to administrative decision‑making;
(b) the decision may contain an error of fact or law materially affecting the decision.

General rules
 (2) The Tribunal must be constituted for the purposes of the proceeding by a single member, 2 members or 3 members.
 (3) Unless the parties to the proceeding agree otherwise, none of the members can be a person who constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made.
 (4) If the Tribunal is constituted for the purposes of the proceeding by a single member, the member must be more senior than the most senior person involved in making the Tribunal decision (see subsections (6) and (7)).
 (5) If the Tribunal is constituted for the purposes of the proceeding by 2 or 3 members, the presiding member must be:
 (a) if a Non‑Judicial Deputy President constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made—equal in seniority to, or more senior than, the most senior person involved in making the Tribunal decision (see subsections (6) and (7)); or
 (b) in any other case—more senior than the most senior person involved in making the Tribunal decision (see subsections (6) and (7)).
 (6) For the purposes of subsections (4) and (5), the most senior person involved in making the Tribunal decision is:
 (a) if the Tribunal decision was made by the Tribunal constituted for the purposes of a proceeding by a single member—that member; or
 (b) if the Tribunal decision was made by the Tribunal constituted for the purposes of a proceeding by 2 or more members—the most senior of those members.
 (7) For the purposes of subsections (4), (5) and (6), the order of seniority of members is as follows:
 (a) the President;
 (b) Judicial Deputy Presidents;
 (c) Non‑Judicial Deputy Presidents;
 (d) senior members;
 (e)