Competition and Consumer Act. Australia
Governor-General.
37 Constitution of Tribunal for particular matters
The Tribunal shall, for the purpose of hearing and determining proceedings, be constituted by a Division of the Tribunal consisting of a presidential member of the Tribunal and two members of the Tribunal who are not presidential members.
38 Validity of determinations
The validity of a determination of the Tribunal shall not be affected or called in question by reason of any defect or irregularity in the constitution of the Tribunal.
39 President may give directions
(1) The President may give directions as to the arrangement of the business of the Tribunal and the constitution of Divisions of the Tribunal.
(2) The President may give directions to the Deputy Presidents in relation to the exercise by the Deputy Presidents of powers with respect to matters of procedure in proceedings before the Tribunal.
Note: Subsection 103(2) provides that any presidential member may exercise powers with respect to matters of procedure in proceedings before the Tribunal.
40 Disclosure of interests by members of Tribunal
(1) Where a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and the member has or acquires any pecuniary interest that could conflict with the proper performance of his or her functions in relation to the proceedings:
(a) the member shall disclose the interest to the President; and
(b) the member shall not take part, or continue to take part, in the proceedings if:
(i) the President gives a direction under paragraph (2)(a) in relation to the proceedings; or
(ii) all of the persons concerned in the proceedings do not consent to the member taking part in the proceedings.
(2) Where the President becomes aware that a member of the Tribunal is, or is to be, a member of a Division of the Tribunal in any proceedings and that the member has in relation to the proceedings such an interest:
(a) if the President considers that the member should not take part, or should not continue to take part, in the proceedings — the President shall give a direction to the member accordingly; or
(b) in any other case — the President shall cause the interest of the member to be disclosed to the persons concerned in the proceedings.
41 Presidential member to preside
The presidential member who is a member of a Division shall preside at proceedings of that Division.
42 Decision of questions
(1) A question of law arising in a matter before a Division of the Tribunal (including the question whether a particular question is one of law) shall be determined in accordance with the opinion of the presidential member presiding.
(2) Subject to subsection (1), a question arising in proceedings before a Division of the Tribunal shall be determined in accordance with the opinion of a majority of the members constituting the Division.
43 Member of Tribunal ceasing to be available
(1) This section applies where the hearing of any proceedings has been commenced or completed by the Tribunal but, before the matter to which the proceedings relate has been determined, one of the members constituting the Tribunal for the purposes of the proceedings has ceased to be a member of the Tribunal or has ceased to be available for the purposes of the proceedings.
(2) Where the President is satisfied that this section applies in relation to proceedings, the President may direct that a specified member of the Tribunal shall take the place of the member referred to in subsection (1) for the purposes of the proceedings.
(3) Where this section applies in relation to proceedings that were being dealt with before the Tribunal, the President may, instead of giving a direction under subsection (2), direct that the hearing and determination, or the determination, of the proceedings be completed by the Tribunal constituted by the members other than the member referred to in subsection (1).
(4) Where the President has given a direction under subsection (3), he or she may, at any time before the determination of the proceedings, direct that a third member be added to the Tribunal as constituted in accordance with subsection (3).
(5) The Tribunal as constituted in accordance with any of the provisions of this section for the purposes of any proceedings may have regard to any record of the proceedings before the Tribunal as previously constituted.
43A Counsel assisting Tribunal
(1) The President may, on behalf of the Commonwealth, appoint a legal practitioner to assist the Tribunal as counsel, either generally or in relation to a particular matter or matters.
(2) In this section:
legal practitioner means a legal practitioner (however described) of the High Court or of the Supreme Court of a State or Territory.
43B Consultants
The Registrar may, on behalf of the Commonwealth, engage persons as consultants to, or to perform services for, the Tribunal.
44 Staff of Tribunal
(1) There shall be a Registrar of the Tribunal and such Deputy Registrars of the Tribunal as are appointed in accordance with this section.
(2) The Registrar and the Deputy Registrars shall be appointed by the Minister and shall have such duties and functions as are provided by this Act and the regulations and such other duties and functions as the President directs.
(3) The Registrar and the Deputy Registrars, and the staff necessary to assist them, shall be persons engaged under the Public Service Act 1999.
44A Acting appointments
(1) The Minister may appoint a person who is engaged under the Public Service Act 1999 to act as the Registrar or as a Deputy Registrar during any period, or during all periods, when:
(a) the Registrar or that Deputy Registrar, as the case may be, is absent from duty or from Australia or is, for any other reason, unable to perform the duties and functions of his or her office; or
(b) there is a vacancy in the office of Registrar or in that office of Deputy Registrar, as the case may be.
(2) A person acting as the Registrar or as a Deputy Registrar by reason of a vacancy in the office of Registrar or of that Deputy Registrar shall not continue so to act after the expiration of 12 months after the occurrence of the vacancy.
(3) A person appointed to act as the Registrar or as a Deputy Registrar has, while acting as the Registrar or as that Deputy Registrar, as the case may be, all the duties and functions of the Registrar or of that Deputy Registrar, and references in this Act to the Registrar or to a Deputy Registrar shall:
(a) if a person is acting as the Registrar — be read as a reference to the person so acting; or
(b) if a person is acting as a Deputy Registrar — be read as including a reference to the person so acting.
(4) The Minister may at any time terminate an appointment of a person to act as the Registrar or as a Deputy Registrar.
(5) A person who holds an appointment to act as the Registrar or as a Deputy Registrar may resign his or her appointment by writing under his or her hand delivered to the Minister.
(6) The validity of an act done by a person appointed to act as the Registrar or as a Deputy Registrar shall not be questioned in any proceeding on a ground arising from the fact that the occasion for the appointment, or for him or her to act under the appointment, had not