Document ID: chunk:federal_register_of_legislation:C2005A00038:clause:1_23:p1
Version: federal_register_of_legislation:C2005A00038
Segment Type: clause
Provision Reference: sch 1 cl 23 (pt 1/2)
Character Range: 24124–26918

23  Reconstitution of Tribunal if member is unavailable

Scope

 (1) This section does not apply in relation to a proceeding in the Security Appeals Division.

 (2) This section applies if:
 (a) the hearing of a proceeding has commenced or is completed; and
 (b) a member (the unavailable member) who constitutes, or is one of the members who constitute, the Tribunal for the purposes of the proceeding:
 (i) stops being a member; or
 (ii) for any reason, is not available for the purposes of the proceeding; or
 (iii) is directed by the President not to continue to take part in the proceeding.

Single member Tribunal

 (3) If the unavailable member constitutes the Tribunal, the President must direct another member or members to constitute the Tribunal for the purposes of completing the proceeding.

Multiple member Tribunal

 (4) If the unavailable member is one of the members who constitute the Tribunal, the President must:
 (a) direct the remaining member or members to constitute the Tribunal for the purposes of completing the proceeding; or
 (b) direct a member or members to constitute the Tribunal for the purposes of completing the proceeding.

Note: See also section 23B.

 (5) A member who is the subject of a direction under paragraph (4)(b) may be the remaining member or one of the remaining members.

Member who stops being a member and becomes a member again

 (6) For the purposes of this section, a member who:
 (a) stops being a member; and
 (b) at a later time becomes a member again;
is taken, from that later time, to be another member.

Reconstituted Tribunal must continue proceeding

 (7) The Tribunal as reconstituted in accordance with a direction under subsection (3) or (4) must continue the proceeding.

Note: Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.

Limitations on President's powers to give directions

 (8) The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1).

 (9) The President must not give a direction under subparagraph (2)(b)(iii) unless:
 (a) the President is satisfied that the direction is in the interests of justice; and
 (b) the President has consulted the member concerned.

 (10) The President must not give a direction under subsection (3) or (4) unless the President has consulted the parties to the proceeding.

 (11) The President must not give a direction under paragraph (4)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of completing the proceeding unless:
 (a) the President is satisfied that the direction is in the interests of justice;