House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Schedule 1 - amendment of the Administrative Appeals Tribunal Act 1975

Overview

106. Schedule 1 to the Bill would amend the AAT Act to support the amalgamation.

107. Key changes include:

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amendments to put in place a robust governance structure for the amalgamated Tribunal

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amendments to streamline and harmonise procedure, and

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amendments to modernise the drafting of the AAT Act.

108. Item 1 would provide a new objective for the amalgamated Tribunal.

109. Items 2-14 would amend various relevant definitions.

110. Items 15-26 would amend provisions of Part II of the AAT Act to provide for the establishment and membership of the amalgamated Tribunal. These amendments would:

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provide a membership structure for the amalgamated Tribunal, including the President, Deputy Presidents, senior members and other members (Item 16)

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provide for qualifications for appointment (Item 18), and

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provide terms and conditions of appointment (Items 19-26).

111. Items 27-38 would amend Part III of the AAT Act to provide for the organisation of the amalgamated Tribunal. Key amendments include:

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provisions establishing and allocating business to Divisions, assigning members to Divisions, and providing for assignment of Division heads and deputy Division heads (new sections 17A, 17B, 17C-H, and 17K-L at Item 27)

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provisions regarding the arrangement of the business of the Tribunal, including the President's power to make general practice directions (new section 18B at Item 27), and

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provisions providing the President with powers to make practice directions regarding constitution of the Tribunal, and establishing rules for the constitution and reconstitution of the Tribunal for particular matters (new sections 19A, 19B, and 19D at Item 27).

112. Items 39-123 would amend Part IV of the AAT Act to provide for procedural rules for the conduct of review by the amalgamated Tribunal. Key amendments include:

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providing that most of Part IV does not apply to reviews in the Migration and Refugee Division (rules for these proceedings are instead set out in the Migration Act) (section 24Z at Item 39)

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provisions regarding applications, parties and procedures (Items 40-59)

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provisions regarding alternative dispute resolution (Items 60-63)

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provisions regarding hearings and evidence (Items 64-99)

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provisions regarding procedural powers of the Tribunal (Items 100-118), and

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provisions regarding the decision of the Tribunal on review (Items 119-123).

113. Items 124-131 would amend Part IVA of the AAT Act to make minor amendments to provisions for appeals to the federal courts on questions of law, including amendments to preserve existing policy on the availability of appeals on questions of law from certain migration and social services reviews.

114. Items 132-157 would amend Part VI of the AAT Act, which provides miscellaneous machinery provisions. Key amendments include:

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provision for authorised members and officers of the Tribunal (Item 132)

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streamlined and modernised offence provisions (Items 135-144), and

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a new provision for publication of Tribunal decisions (Item 147).

Amendments to the Administrative Appeals Tribunal Act

Item 1 - Section 2A

115. Item 1 would repeal existing section 2A of the AAT Act and substitute a new section 2A to provide the amalgamated Tribunal's objective.

116. Existing section 2A of the AAT Act provides that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. Similar objectives are provided:

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for the MRT-RRT by subsections 353(1) and 420(1) of the Migration Act, and

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for the SSAT by subsection 141(1) of the SSA Act, section 110 of the FAA Act, section 214 of the PPL Act, sections 310 of the SA Act, and section 88 of the CSRC Act.

117. These provisions would be repealed.

118. The amendment made by Item 1 would preserve existing section 2A as new paragraph 2A(b), and add that the Tribunal must provide a mechanism of review that is:

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accessible

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proportionate to the importance and complexity of the matter, and

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promotes public trust and confidence in the decision-making of the Tribunal.

119. The addition of these objectives reflects the diversity of the amalgamated Tribunal's jurisdiction, which would range from simple to highly complex matters, and reiterates the importance of the Tribunal continuing to be, and to be seen to be, an independent forum for review of the merits of Government decisions.

Item 2 - Subsection 3(1)

120. Item 2 would insert a new definition of 'agency party' into the AAT Act. Agency party would be defined to mean a party to a proceeding in the Social Services and Child Support Division who is the Secretary of a Department, Chief Executives of Medicare or Centrelink, or the Child Support Registrar.

121. This definition is necessary to support procedures applying in social services matters, and is used in new or amended sections 32, 39AA, 42A and 43 of the AAT Act.

Item 3 - Subsection 3(1)

122. Item 3 would insert new definitions of 'authorised officer', 'Chief Executive Centrelink', 'Chief Executive Medicare' and 'child support first review' into the AAT Act.

123. 'Authorised officer' would be defined to mean an officer of the Tribunal who has been authorised by the President under new section 59B, which would be inserted by Item 131 of Schedule 1 to the Bill.

124. 'Chief Executive Centrelink' would be defined to have the same meaning as in the Human Services (Centrelink) Act 1997. Section 7 of that Act provides that the Chief Executive Centrelink must be an SES employee in the Department specified in a written instrument by the Secretary.

125. 'Chief Executive Medicare' would be defined to have the same meaning as in the Human Services (Medicare) Act 1973. Section 4 of that Act provides that the Chief Executive Medicare must be an SES employee in the Department specified in a written instrument by the Secretary.

126. 'Child support first review' would be defined to mean a proceeding that is or would be a proceeding in the Social Services and Child Support Division on application for AAT first review within the meaning of the CSRC Act.

Items 4 and 6-Subsection 3(1) (definitions of Conference Registrar, Deputy Registrar and District Registrar )

127. Items 4 and 6 would repeal the definitions of 'Conference Registrar', 'Deputy Registrar' and 'District Registrar' in subsection 3(1) of the AAT Act.

128. These definitions are no longer necessary, as references to specific types of Registrar would no longer be included in the Act. While positions of this kind would continue to exist in the amalgamated Tribunal, the Act would be simplified by retaining only the concept of 'officer of the Tribunal' and introducing the concept of 'authorised officers of the Tribunal' provided in new section 24PA (inserted by Item 35) and new section 59B (inserted by Item 131). The Registrar and the President of the AAT would appoint and authorise designated members of staff of the Tribunal and certain other persons as officers and authorised officers of the Tribunal for the purposes of this Act and any other enactment. New section 10A (inserted by Item 25) would also enable the Registrar to delegate to an officer of the Tribunal any or all of his or her powers or functions under this Act or another enactment.

Item 5 - Subsection 3(1) (definition of Deputy President )

129. Item 5 would repeal the definition of 'Deputy President' in subsection 3(1) of the AAT Act and replace it with a new definition.

130. Deputy President is currently defined to mean a member appointed as a Deputy President of the Tribunal after the commencement of Part III of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982. As there are no longer any Deputy Presidents appointed before the commencement of that Act on 4 June 1982, this definition can be simplified.

131. Accordingly, Deputy President would be defined to mean a member appointed as a Deputy President of the Tribunal.

Item 7 - Subsection 3(1)

132. Item 7 would insert definitions of 'engage in conduct' and 'immigration advisory service' into subsection 3(1) of the AAT Act.

133. 'Engage in conduct' would be defined to have the same meaning as in the Criminal Code.

134. 'Immigration advisory service' would be defined to mean a body providing services to assist non-citizens to seek permission to enter or remain in Australia. The definition is modelled on the definition provided in sections 403 and 468 of the Migration Act, and is used in new subsection 13(3) which would be inserted by Item 25 to replace those provisions.

Item 8 - Subsection 3(1) (definition of member)

135. Item 8 would repeal the existing definition of 'member' in subsection 3(1) of the AAT Act and replace it with a new definition.

136. 'Member' is currently defined in the AAT Act to mean a presidential member, a senior member, or any other member of the tribunal.

137. The revised definition inserted by Item 8 would include the President, a Deputy President, a senior member, and any other member. This revised definition better reflects the membership structure of the Tribunal that would be set out by new section 5A inserted by Item 16.

Item 9 - Subsection 3(1) (definition of officer of the Tribunal )

138. Item 9 would repeal the existing definition of 'officer of the Tribunal' in subsection 3(1) of the AAT Act and replace it with a new definition.

139. 'Officer of the Tribunal' is currently defined to mean the Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar.

140. The revised definition of 'officer of the Tribunal' would provide that the term means the Registrar, or an officer of the Tribunal under section 24PA, which would be inserted by Item 35.

141. This reflects the replacement of references to specific types of Registrar with the concepts of 'officer of the Tribunal' and 'authorised officer of the Tribunal' in new sections 24PA and 59B that would be inserted by Items 35 and 131.

Item 9A - Subsection 3(1) (definition of person who made the decision )

142. Item 9A would clarify that the phrase 'person who made the decision' in the AAT Act has a meaning affected by:

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for AAT first reviews within the meaning of the FAA Act-section 11B of that Act (see Item 21A of Schedule 5 to the Bill)

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for AAT first reviews within the meaning of the PPL Act-section 224A of that Act (see Item 20 of Schedule 6 to the Bill)

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for AAT first reviews within the meaning of the SSA Act-section 142A of that Act (see Item 35A of Schedule 3 to the Bill), and

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for AAT first reviews within the meaning of the SA Act-section 311A of that Act (see Item 11 of Schedule 7 to the Bill)

143. In effect, this would refer readers to the definitions of the term in those Acts. Those definitions would ensure that the relevant Departmental Secretary and, where appropriate, the Chief Executive Centrelink or Chief Executive Medicare-rather than the individual officer who made the decision-are parties to AAT first reviews and bear the other rights and obligations afforded to decision makers under the AAT Act.

144. Item 9A would preserve the status quo in respect of the decision makers who are parties to SSAT proceedings (see section 156 of the SSA Act; subsection 118(1) of the FAA Act; sections 222 and 230 of the PPL Act; and section 322 of the SA Act, which would be repealed by the Bill). It is necessary because the term 'the person who made the decision' is used in various places throughout the AAT Act, including determining who are the parties to a review (section 30) and in imposing requirements to lodge documents with the Tribunal (section 37).

Item 10 - Subsection 3(1) (definition of presidential member )

145. Item 10 would repeal the existing definition of 'presidential member' in subsection 3(1) of the AAT Act and replace it with a new definition.

146. 'Presidential member' is currently defined to mean the President, a member who is a Judge, or a Deputy President.

147. Item 17 would amend subsection 6(2) of the AAT Act to provide that a Judge who is appointed as a member of the Tribunal would be appointed as the President or a Deputy President. Item 10 would simplify the definition of 'presidential member' to reflect this change in approach.

Item 11 - Subsection 3(1) (paragraph (c) of the definition of proceeding )

148. Item 11 would repeal paragraph (c) of the existing definition of 'proceeding' in the AAT Act and replace it with a new paragraph.

149. Existing paragraph (c) provides that a proceeding, in relation to the Tribunal, includes an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid.

150. The new paragraph (c) that would be inserted by Item 11 simplifies this provision, and removes the references to specific types of Registrars in the Act.

Item 12 - Subsection 3(1)

151. Item 12 would insert a new definition of 'second review' into subsection 3(1) of the AAT Act.

152. 'Second review' would be defined to mean a review designated as 'AAT second review' in another enactment that authorises applications to be made for review of the decision.

153. This definition is necessary to support the maintenance of the right of second review of certain social services matters.

Item 13 - Subsection 3(1) (definition of senior member )

154. Item 13 would repeal the definition of 'senior member' in subsection 3(1) of the AAT Act and insert a new definition.

155. 'Senior member' is currently defined by subsection 3(1) to mean a senior member of the Tribunal.

156. The revised definition is intended to clarify that references to senior member in the AAT Act include both senior members level 1 and senior members level 2 as provided for in new subsection 6(3), which would be inserted by Item 17.

Item 14 - Subsection 3(1) (definition of Small Taxation Claims Tribunal )

157. Item 14 would repeal the definition of 'Small Taxation Claims Tribunal'. The definition would no longer be necessary as a consequence of the repeal of provisions in relation to that Tribunal by Item 27.

Item 15 - Section 5

158. Item 15 would amend section 5 of the AAT Act to omit references to the various categories of member that can be appointed under the Act.

159. As amended, section 5 would provide for the establishment of the AAT. The intention is that the existing AAT should be continued in existence.

160. Provisions relating to the categories and levels of membership and appointment would be dealt with by new section 5A and amended section 6, which are dealt with in Items 16 and 17.

Item 16 - Before section 6

161. Item 16 would amend the AAT Act by inserting a new section 5A to provide that the Tribunal consists of the President, Deputy Presidents, senior members, and other members.

162. This provision is currently part of section 5 of the AAT Act, but would be separated out to enhance the readability of the Act.

Item 17 - Subsections 6(2) and (3)

163. Item 17 would amend the AAT Act by repealing subsections 6(2) and 6(3) and replacing them with new provisions.

164. Existing subsection 6(2) of the AAT Act provides that a Judge who is to be appointed as a member (other than the President) is to be appointed as a presidential member.

165. New subsection 6(2) would provide that a Judge who is to be appointed as a member of the Tribunal is to be appointed either as the President or as a Deputy President.

166. Existing subsection 6(3) of the AAT Act provides that a person other than a Judge who is appointed as a member is to be appointed as a Deputy President, senior member, or as a member of the tribunal.

167. New subsection 6(3) would provide that a person other than a Judge is to be appointed as either a Deputy President, or a senior member (level 1 or 2), or a member (level 1, 2 or 3).

168. This new membership structure is intended to allow a range of appointments to reflect the wide range of work that would be undertaken in the amalgamated Tribunal. The differences in the work undertaken by the AAT, MRT-RRT and SSAT are currently reflected in differences in remuneration under Remuneration Tribunal determinations. The six levels of member provided under the President would provide sufficient flexibility to ensure that the appropriate expertise is available to allocate to work in each of the Tribunal's Divisions.

Item 18 - Section 7

169. Item 18 would repeal section 7 of the AAT Act and replace it with a new provision providing simplified qualifications for appointment across all Divisions of the Tribunal.

170. Existing section 7 provides the following qualifications for appointment to the AAT:

171. There are no equivalent qualification provisions that apply to the MRT-RRT or the SSAT.

172. New section 7 would substantially simplify these qualifications while retaining a requirement of significant and appropriate knowledge and skill for all appointments to the Tribunals, which reflects the possible range of expertise that could benefit the Tribunal. The new qualifications provisions would be as follows:

173. Key changes in these provisions would be:

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to open the role of Deputy President to non-lawyers, to reflect that equivalent positions in the MRT-RRT and SSAT do not have such a requirement and that there are special knowledge or skills other than legal qualifications that may make an individual suitable for the role, and

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simplifying drafting of the qualifications for senior members and members.

174. The revised qualification requirements for senior members and members do not change the policy of these provisions. The category of 'special knowledge or skills' encompasses all of the more specific qualification provisions currently provided by existing subsection 7(2).

Item 20 - Subsection 8(4)

175. Item 20 would amend subsection 8(4) of the AAT Act by removing word 'presidential'.

176. Existing subsection 8(4) provides that a presidential member who is a Judge ceases to hold office as a member if he or she ceases to be a Judge.

177. However, as all members of the amalgamated Tribunal who are Judges would be either the President or a Deputy President, the word 'presidential' is unnecessary, and can be removed to simplify the drafting of the provision. This amendment is not intended to change the policy of the provision.

Item 21 - Subsection 8(7)

178. Item 21 would amend subsection 8(7) of the AAT Act to replace the word 'prescribed' with 'determined by the Minister in writing'.

179. Existing subsection 8(7) provides that, subject to Part II of the AAT Act, a member holds office on such terms and conditions as are prescribed. Similar provisions exist in the Migration Act (empowering the Minister: sections 400 and 465) and the SSA Act (empowering the Governor-General: Schedule 3, clause 5).

180. This amendment would allow member terms and conditions for the amalgamated Tribunal to be set by the Minister. Given the very substantial number of statutory officers in the amalgamated Tribunal, it is appropriate to allow a simpler procedure for setting terms and conditions than by making Regulations. Remuneration entitlements for members would continue to be set by the Remuneration Tribunal as provided by existing section 9.

Item 22 - Subsections 10(1) to (4)

181. Item 22 would repeal subsections 10(1)-(4) of the AAT Act, and replace them with new subsections 10(1)-(3).

182. Existing subsections 10(1)-(3) provide for an acting President, and acting Deputy Presidents and non-presidential members. Similar provisions for the MRT-RRT and SSAT can be found in sections 404 and 469 of the Migration Act, and clauses 6-9 of Schedule 3 to the SSA Act. In addition, existing subsection 10(4) of the AAT Act provides that a person must not be appointed as an acting senior member or acting member unless the person meets the qualification requirements for those categories of membership.

183. New subsection 10(1) would provide that the Minister may, by written instrument, appoint a Judge of the Federal Court to act as President during a vacancy in the office of President, or during any period when the President is absent from duty or is unable to perform the duties of the office. This provision preserves the policy of existing subsection 10(1).

184. New subsection 10(2) would empower the Minister to make acting appointments for all members other than the President, during periods when a full-time member is absent from duty, or when a part-time member is unavailable to perform the duties of office. In practice, it is anticipated that this power would be delegated by the Minister to the President.

185. New subsection 10(3) would provide that a person must not be appointed to act in an office under new subsections 10(1) or 10(2) unless the person meets the requirements in section 7 for appointment to that office.

186. The new provisions preserve the substance of the existing provisions with significantly simplified drafting.

187. Given the very substantial number of statutory officers in the amalgamated Tribunal, the power to make acting appointments has been given to the Minister. This is a more practical option than requiring the Governor-General to make all acting appointments. As acting appointments are generally short-term, and in accordance with paragraph 33A(1)(ba) of the Acts Interpretation Act cannot continue for more than 12 months, this approach should not affect Tribunal independence.

Item 23 - Subsection 10(5)

188. Item 23 would amend subsection 10(5) of the AAT Act by omitting the words 'or (3)' as a consequence of the amendments made by Item 22, which would consolidate the rule in existing subsection 10(3) into new subsection 10(2).

Item 24 - Subsections 10(7) to (11)

189. Item 24 would repeal existing subsections 10(7)-(11) of the AAT Act, and insert a new subsection 10(7).

190. Existing subsection 10(7) provides that a person acting as a Deputy President or as a non-presidential member shall act in that capacity on such terms or conditions as the Minister determines.

191. New subsection 10(7) re-enacts this rule with simpler drafting. The new provision maintains existing policy.

192. Existing subsections 10(9)-(11) provide rules relating to the resignation, exercise of powers and validity of decisions made by acting members. These rules are adequately covered by the standard provisions found in sections 33AB and 33A of the Acts Interpretation Act, and are accordingly repealed. Removal of these provisions does not affect existing policy.

Item 25 - Section 10A

193. Item 25 would repeal existing section 10A of the AAT Act and substitute a new section 10A.

194. Existing section 10A of the AAT Act empowers the President to delegate to a member any or all of the President's powers under the Act, except for the power of delegation.

195. New section 10A would more comprehensively provide for delegations by the Minister, the President and the Registrar, as follows:

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the Minister would be able to delegate the Minister's powers and functions to the President

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the President would be able to delegate the President's powers and functions to a member of the Tribunal, and

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the Registrar would be able to delegate the Registrar's powers and functions to an officer of the Tribunal or a member of the staff of the Tribunal.

196. New subsection 10A(4) would provide that in exercising powers or performing functions under a delegation, the delegate must comply with any directions of the delegator.

197. It is appropriate to allow for delegation of the full range of the powers and functions of each of these officers. The management responsibilities of the amalgamated Tribunal for each of these officers would be administratively burdensome for any individual. The classes of persons to whom delegations may be made under each of new subsections 10A(1)-(3) has been chosen to ensure that delegates are at an appropriate level given the functions that may be delegated to them.

198. Sections 34AA, 34AB and 34A of the Acts Interpretation Act provide general rules for delegations that would apply to delegations made under new section 10A.

Item 26 - Sections 11 to 14

199. Item 26 would repeal existing sections 11 (outside employment), 12 (leave of absence), 13 (removal from office) and 14 (disclosure of interests by members) of the AAT Act, and substitute new sections 10A (delegation), 11 (outside employment), 12 (leave of absence), 13 (termination of appointment (not Judges)), and 14 (disclosure of interests by members).

Outside employment (existing section 11; new section 11)

200. Existing section 11 of the AAT Act provides that a full-time member shall not, except with the consent of the Minister, engage in paid employment outside the duties of his or her office. However, the Minister's consent is not required to hold an office or appointment in the Defence Force. A similar provision appears for the SSAT in subclause 15(1) of Schedule 3 to the SSA Act, and is implied by paragraphs 403(2)(g) and 468(2)(g) of the Migration Act, which provide a ground of termination for a full-time member engaging in paid employment without the written approval of the Minister.

201. New section 11 would make a similar provision, with the following changes:

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outside employment of full-time members should be approved by the President rather than the Minister, and

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part-time members must not engage in paid employment that, in the President's opinion, conflicts or may conflict with the proper performance of the member's duties.

202. Given the large numbers of members in the amalgamated Tribunal, it is appropriate that the President should have the power to approve outside employment. This power may be delegated to Division heads under new section 10A.

203. The inclusion of a provision regarding paid employment of part-time members is important to allow the Tribunal to independently manage the possibility of conflicts of interest amongst these members, most of whom would have roles in addition to their Tribunal responsibilities.

Leave of absence (existing section 12; new section 12)

204. Existing section 12 of the AAT Act provides that:

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a full-time member has the recreation leave entitlements determined by the Remuneration Tribunal, and

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the Minister may grant a full-time member leave of absence, other than recreation leave, on the terms and conditions that the Minister determines.

205. New section 12 re-enacts this provision with the following changes:

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the power to grant full-time members leave other than recreation leave would be transferred to the President, and

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a new power would be introduced for the President to grant leave o88

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f absence to part-time members on the terms and conditions that the President determines.

206. The transfer of the power to grant leave other than recreation leave to the President, and the introduction of a power for the President to grant leave to part-time members, would allow the Tribunal to independently manage its resourcing and workload.

Termination of appointment (not Judges)(existing section 13; new section 13)

207. Existing section 13 of the AAT Act provides a procedure for terminating or suspending officers of the Tribunal.

208. Existing subsection 13(1) provides that the Governor-General may remove a member from office on an address from each House of Parliament in the same session of Parliament asking for the member's removal on the ground of proved misbehavior or incapacity. Procedures are also provided for suspension of members. Existing subsections 13(12)-(14) provide rules relating to retirement for invalidity for members who are covered by the CSS, PSS or PSSap superannuation schemes.

209. New subsection 13(1) would provide for termination of a member's appointment on the ground of proved misbehavior or incapacity that renders the person unable to perform his or her duties on an address from each House of Parliament, in substantially the same terms as existing subsection 13(1). New subsection 13(2) would be closely based on the standard Commonwealth model for termination provisions. It would permit termination by the Governor-General only on clearly specified grounds, including:

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bankruptcy and related grounds

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absence without leave

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engaging in outside employment without the approvals required by new section 11, and

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failing to disclose interests as required by new section 14.

210. New subsection 13(3) would provide a specific ground of termination where a member has a direct or indirect pecuniary interest in an immigration advisory service. This recognises the specialised nature of the Migration and Refugee Division and the potential for members assigned to that Division to have ties with, or a background in, immigration assistance that may give rise to a conflict of interest. New subsection 13(3) is modelled on paragraphs 403(2)(e) and 468(2)(e) of the Migration Act, which currently apply to the MRT-RRT.

211. Importantly, new subsection 13(4) would provide that a member's appointment may not be terminated otherwise than in accordance with section 13, and new subsection 13(5) would confirm that section 13 would not apply to members who are Judges.

212. Maintenance of the suspension provisions is not necessary. In the event that a member is suspected of conduct that would warrant termination, the President would be able to effectively suspend a member by exercising the power to reconstitute the Tribunal in any proceedings that the member is involved in.

Disclosure of interests by members (existing section 14; new section 14)

213. Existing section 14 of the AAT Act requires members to disclose interests that could conflict with the proper performance of their duties in relation to a proceeding, and provides that members can then only participate in a proceeding with the consent of the parties. Under existing subsection 14(2), the President is also empowered to prevent a member from participating in a proceeding if the President becomes aware that the member has a conflict, or to require the member to disclose the conflict to the parties.

214. Rules for disclosure of conflicts of interests are also provided in slightly different terms for the MRT-RRT by sections 402 and 467 of the Migration Act.

215. New section 14 would re-enact section 14 with improvements modelled on the Migration Act provisions. In particular:

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the member would be required to disclose their conflict to the President (or if the member is the President, to the Minister) as well as to the parties

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the member would be prohibited from participating in the proceeding without the President's consent (or the Minister's, if the member is the President) in addition to requiring the parties' consent, and

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a new provision (subsection 14(2)) would be included to clarify that a member would have a conflict of interest where the member has any interest that could conflict with the proper performance of the member's functions in relation to the proceeding. This reflects the wording of existing subsection 14(1).

Item 27 - Parts III and IIIAA

216. Item 27 would repeal Parts III and IIIAA of the AAT Act, which provide rules for the organisation of the Tribunal and for the Small Taxation Claims Tribunal.

217. Part III would be re-enacted to provide comprehensive rules for the organisation of the amalgamated Tribunal.

218. Division 1 of Part III would include provisions regarding Divisions of the Tribunal, to:

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establish the Divisions of the Tribunal (new section 17A)

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allocate business to the Divisions (new section 17B)

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establish procedures for assigning members to Divisions (new Subdivision B, sections 17C-17J), and

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establish the roles of Division head (new section 17K) and deputy Division head (new section 17L).

219. Division 2 of Part III would include provisions regarding the arrangement of the business of the Tribunal, to:

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provide the President with responsibility for arranging the business of the Tribunal (new section 18A)

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empower the President to make practice directions regarding the arrangement of business (new section 18B), and

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provide for sittings of the Tribunal (new section 18C).

220. Division 3 of Part III would include provisions regarding the constitution of the Tribunal (that is, the selection of members to deal with particular proceedings), to:

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empower the President to make directions as to the constitution of the Tribunal (new section 19A)

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provide rules for the constitution (new sections 19B and 19C) and reconstitution (new section 23) of the Tribunal, and

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provide rules for the constitution and reconstitution of the Security Division of the Tribunal (new sections 19E and 19F).

221. Part IIIAA of the AAT Act, which establishes the concept of a 'Small Taxation Claims Tribunal', would not be replaced. The Small Taxation Claims Tribunal is part of the AAT. The Taxation Appeals Division is known as the Small Taxation Claims Tribunal when dealing with applications for review of certain types of tax decisions, including where the amount of tax in dispute is less than $5,000 and where the decision relates to release from paying a tax debt (regardless of the amount involved). The principal result of a matter being heard in the Small Taxation Claims Tribunal is that a lower application fee is payable. The lower application fee for these types of taxation matters would be maintained in the Tribunal's fee structure. However, it is not necessary to maintain Part IIIAA to achieve this, and it would accordingly be repealed.

New section 17A - Divisions of the Tribunal

222. New section 17A would re-enact existing subsections 19(1) and (2) of the AAT Act to provide that the Tribunal is to exercise its powers in seven core Divisions, and any further Divisions to be established by Regulations.

223. It is intended that the business of the existing Divisions and Tribunals would be allocated as follows:

224. The Medical Appeals Division and the Valuation and Compensation Division would not be maintained in the new Tribunal as they are not presently used.

New section 17B - Allocation of business to Divisions

225. New section 17B would provide rules for determining which Division should hear particular types of matters.

226. Under new subsection 17B(1), allocation of particular types of proceedings to Divisions would be undertaken by Regulations, or, if Regulations do not provide for the allocation of a particular type of proceeding to a Division, by Presidential practice directions. However, migration and refugee applications would be reviewable only in the Migration and Refugee Division under new subsections 336N(2) and 409(2) of the Migration Act, which would be inserted by Items 26 and 71 of Schedule 2 to the Bill.

227. New subsection 17B(2) would provide that certain powers relating to the Australian Security Intelligence Organisation (ASIO) or its records would only be exercised by the Tribunal in the Security Division. This provision preserves the policy of existing subsection 19(6) of the AAT Act.

New section 17C - Assignment of members to Divisions

228. New section 17C would provide rules for the assignment of members to Divisions.

229. Assignment of members is critical to organising the business of the Tribunal by allocating members to Divisions in which they have particular expertise.

230. Process for assigning members: the Minister must assign a non-presidential member to one or more Divisions of the Tribunal (new subsection 17C(1)). Before doing so, the Minister must consult the President (new subsection 17C(2)). An assignment may only be varied with the consent of the member (new subsection 17C(3)). The requirement of consent before variation of an assignment is critical to maintaining Tribunal independence, by ensuring that members cannot be arbitrarily reallocated. These provisions reflect the requirements of existing subsections 19(3) and 19(3AA) of the AAT Act. Additional requirements for assignment to particular Divisions would be provided by new sections 17D-19EA.

231. Effect of assignment: A non-presidential member (that is, a senior member or other member) may only exercise the powers of the Tribunal in a Division to which the member is assigned (new subsection 17C(4)). It is important to note that presidential members (the President and Deputy Presidents) are accordingly able to exercise powers in any Division of the Tribunal, without a requirement of assignment. This would enable presidential members to sit across the Tribunal on more complex matters.

232. Assignment not a legislative instrument: new subsection 17C(5) would provide that if an assignment is made in writing, the assignment is not a legislative instrument. This provision is included to assist readers. An instrument of assignment is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003.

New sections 17CA - 17H: requirements for assignment to particular Divisions

233. New sections 17CA - 17H provide requirements for assignment to particular Divisions.

234. Consultation requirements: The Minister would be required to consult with other Ministers before assigning a member to particular Divisions, as follows:

235. The consultation requirements for the National Disability Insurance Scheme Division and the Taxation and Commercial Division reflect the requirements of existing subsections 19(3C) and 19(3A) respectively. The consultation requirements for assignment to the Migration and Refugee Division and the Social Services and Child Support Division are appropriate given the need for members exercising powers in those Divisions to have specific subject-matter expertise.

236. Requirement for appointment to particular Divisions: specific requirements would also be provided for assignment to particular Divisions, as follows:

237. The requirements of new subsection 17E(2) and section 17F reflect the existing requirements in subsections 19(3D) and (3B) respectively.

New section 17J - Validity

238. New section 17J would provide that new sections 17A-17H of the AAT Act do not affect the validity of any exercise of powers by the Tribunal. New section 17J reproduces the policy of existing subsection 19(5).

New section 17K - Division heads

239. New section 17K would create a new role of Division heads for the amalgamated Tribunal. This reflects the expansion in the workload of the Tribunal as a consequence of the amalgamation and provides a structure for more specialised management of the workload of particular Divisions.

240. Process for assigning Division heads: new subsection 17K(1) would provide that the Minister may assign a Deputy President to be the head of one or more Divisions. The limitation of eligibility for the role of Division heads to Deputy Presidents reflects the significant responsibility and skills required of Division heads.

241. Before making a Division head assignment, the Minister would be required to consult the President (new paragraph 17K(2)(a)), and to comply with the same requirements as apply to assigning a non-presidential member to the relevant Division (new paragraph 17K(2)(b) and subsection 17K(3)). As set out above, these include ministerial consultation requirements for certain Divisions, specific qualifications for assignment to the National Disability Insurance Scheme Division and the Freedom of Information Division, and restrictions on who may be assigned to the Security Division.

242. New subsection 17K(4) would provide that if the assignment of a Division head is made in writing, the assignment is not a legislative instrument. This provision is included to assist readers. An instrument of assignment would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

243. New subsection 17K(5) would provide that:

•

an assignment as a Division head must be for the duration of a person's appointment as Deputy President

•

may be varied only with the Division head's consent, and

•

cannot be revoked.

244. These restrictions on assignments of Division heads are intended to promote Tribunal independence by providing stability to assignments, and ensuring that Division heads' assignments can only be varied with the Division head's consent.

245. Function of Division heads: new subsection 17K(6) would provide that the head of a Division has the function of assisting the President in the performance of the President's functions by directing the business of the Tribunal in the Division. In practice, it is expected that the President would delegate a range of functions to Division heads for matters arising within their respective Divisions.

246. Acting Division heads: new subsection 17K(7) would provide that the Minister may assign a Deputy President or a senior member to act as head of a Division when the Division head is absent from duty or outside Australia. The provision would clarify that such an acting assignment is taken to be an appointment for the purposes of the Acts Interpretation Act. As a result, the standard rules provided by section 33A of the Acts Interpretation Act for acting appointments would apply. These include, amongst others:

•

provision that the acting Division head has and may exercise all the powers, and must perform all the functions and duties, of the holder of the office

•

a limitation of acting appointments to 12 months

•

provision for the terms and conditions of acting appointments, and

•

rules for resignation

New section 17L - Deputy Division heads

247. New section 17L would create new roles of deputy Division heads for the amalgamated Tribunal. This reflects the expansion in the workload of the Tribunal as a consequence of the amalgamation and provides a structure for more specialised management of the workload of particular Divisions. It is envisaged that deputy Division heads would only be required in larger Divisions, particularly the Migration and Refugee Division and the Social Services and Child Support Division.

248. Process for assigning deputy Division heads: the process for assigning a deputy Division head would be similar to the process provided for assigning a Division head by new section 17K. The Minister would be able to assign a Deputy President or senior member to be the deputy head of one or more Divisions (new subsection 17L(1)).

249. Before doing so, the Minister would be required to consult the President (new paragraph 17L(2)(a)), and to comply with the same requirements for assigning a non-presidential member to the relevant Division (new paragraph 19GA(2)(b) and subsection 19GA(3)). As set out above, these include ministerial consultation requirements for certain Divisions, specific qualification for assignment to the National Disability Insurance Scheme Division, and restrictions on who may be assigned to the Security Division.

250. New subsection 17L(4) would provide that if the assignment of a deputy Division head is made in writing, the assignment is not a legislative instrument. This provision is included to assist readers. An instrument of assignment would not be a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

251. New subsection 17L(5) would provide that:

•

an assignment as a deputy Division head must be for the duration of a person's appointment as Deputy President

•

may be varied only with the deputy Division head's consent, and

•

cannot be revoked.

252. These restrictions on assignments of deputy Division heads are intended to promote Tribunal independence by providing stability to assignments, and ensuring that deputy Division heads' assignments can only be varied with the deputy Division head's consent.

253. Function of deputy Division heads: new subsection 17L(6) would provide that the deputy Division head has the function of assisting the head of the Division in the performance of the head of the Division's functions. The head of the Division's function would be defined by new subsection 17K(6) as assisting the President in the performance of the President's functions by directing the business of the Tribunal in the Division.

254. Acting deputy Division heads: new subsection 17L(7) would provide that the Minister may assign a member to act as deputy head of a Division when the deputy Division head is absent from duty or outside Australia. The provision would clarify that such an acting assignment is taken to be an appointment for the purposes of the Acts Interpretation Act. As a result, the standard rules provided by section 33A of the Acts Interpretation Act for acting appointments would apply. These include, amongst others:

•

provision that the acting deputy Division head has and may exercise all the powers, and must perform all the functions and duties, of the holder of the office

•

a limitation of acting appointments to 12 months

•

provision for the terms and conditions of acting appointments, and

•

rules for resignation

New section 18A - Arrangement of business

255. New section 18A would provide that, subject to the Act and regulations, the President is responsible for ensuring:

•

the expeditious and efficient discharge of the business of the amalgamated Tribunal, and

•

that the Tribunal pursues the objective in new section 2A.

256. New section 18A reflects the policy of existing subsection 20(1) of the AAT Act, which provides that the President is responsible for ensuring the expeditious and efficient discharge of the business of the Tribunal. However, new section 18A makes more explicit the President's responsibility to ensure that the Tribunal pursues the objective in new section 2A to provide a mechanism of review that:

•

is accessible

•

is fair, just, economical, informal and quick

•

is proportionate to the importance and complexity of the matter, and

•

promotes public trust and confidence in the decision making of the Tribunal.

New section 18B - President's directions-arrangement of business

257. New section 18B would provide for the President's power to make practice directions for the Tribunal.

258. New subsection 18B(1) would empower the President to make written directions in relation to:

•

the operations of the Tribunal

•

the procedure of the Tribunal

•

the conduct of reviews by the Tribunal

•

the arrangement of the business of the Tribunal, and

•

the places at which the Tribunal may sit.

259. New subsection 18B(1) is intended to reproduce the policy of existing subsections 20(2) and (4) of the AAT Act with simplified drafting. Practice directions made under new subsection 18B(1) would be able to apply across the Tribunal, or to particular Divisions.

260. New subsection 18B(1A) would provide that before the President makes a practice direction, the President must consult the head of any Division to which the direction would apply. This amendment would ensure that heads of specialised Divisions can contribute to the development of applicable practice directions. For example, if practice directions about alternative dispute resolution are being developed, the Division heads for Divisions in which alternative dispute resolution can occur would be consulted. This amendment would not prevent the President from delegating to Division heads the power to make directions.

261. In addition, new subsections 18B(2) and (3) provide new rules to clarify the effect of practice directions. New subsection 18B(2) would provide that a failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal. New subsection 18B(3) would provide that if the Tribunal deals with a proceeding in a way that complies with directions given under the section, the Tribunal is not required to take any other action in dealing with the proceeding.

262. The rule in new subsection 18B(2) is intended to prevent Tribunal decisions being overturned due to minor non-compliance with practice directions and reflects the policy of existing subsections 353A(3) and 420A(3) of the Migration Act.

263. These subsections ensure that non-compliance with directions does not lead to invalidity, in order to provide certainty around when decisions by the Tribunal are taken to be finalised. A presumption of regularity for decisions is particularly important in the migration and refugee jurisdiction. It has significant implications for the cessation of bridging visas and consequently the lawfulness of an applicant's immigration detention.

264. The rule in new subsection 18B(3) reflects the intent of existing subsections 353A(4) and 420A(4) of the Migration Act to provide certainty around when decisions by a review Tribunal are taken to be finalised. In the context of decisions that are made under a legislative code of procedure, the provision operates to ensure that where the Tribunal complies with the code of procedure and any relevant directions, then the procedural prerequisites to making a lawful decision have been satisfied. As indicated above in relation to new subsection 18B(2), this presumption of regularity has significant implications in the migration and refugee jurisdiction where decisions made by the MRT and the RRT are the subject of more litigation challenges than those of any other Commonwealth review body.

265. New subsection 18B(4) would make specific provision for directions relating to the provision of documents under sections 37 and 38AA of the AAT Act to ensure those provisions operate as effectively as possible for the purposes of reviews.

New section 18C - Sittings of Tribunal

266. New section 18C would provide that sittings of the Tribunal are to be held from time to time as required, in such places in Australia or an external Territory as are convenient. New section 18C reflects the policy of existing section 20A with simplified drafting.

New section 19A - President's directions-constitution

267. New section 19A would empower the President to make directions relating to the constitution of the Tribunal, and presiding members.

268. Constitution: New paragraph 19A(1)(a) would provide that the President may give written directions in relation to the member or members who are to constitute the Tribunal for the purposes of a proceeding. This reproduces the policy of existing subsection 20B(1).

269. Presiding member: New paragraph 19A(1)(b) would provide that the President may give written directions as to the member to preside on multi-member panels. New subsection 20B(2) would provide that the President cannot make directions as to the member to preside in a proceeding in the Security Division. Specific rules relating to the presiding member in such proceedings would be provided by new subsections 19E(4) and 19F(4). The ability of the President to make directions as to the member to preside replaces the existing complex policy of section 22 of the AAT Act, which provides a complex series of rules for determining the presiding member based on seniority. This change would provide the President with greater flexibility in managing the business of the Tribunal and significantly simplify the drafting of the Act. The exception for the Security Division reflects the existing policy of sections 21AA(4) and 21AB(9) of the AAT Act.

New section 19B - Constitution

270. New section 19B would provide rules governing the constitution of the Tribunal (that is, the selection of the particular member or members who would hear the application for the Tribunal).

271. General rule for constitution of the Tribunal: New subsection 19B(1) would provide that the Tribunal as constituted for the purposes of a proceeding

•

must not have more than three members (unless another provision of the AAT Act or another enactment provides otherwise), and

•

must not have more than one member who is a Judge.

272. New subsection 19B(1) reproduces the policy of existing subsections 21(1) and 21(1AA) and subsection 354(1) of the Migration Act, but differs from existing policy for the SSAT (which allows constitution by up to four members under existing clause 11 of Schedule 3 to the SSA Act), and the RRT (which only allows single-member panels under existing subsection 421(1) of the Migration Act). It is anticipated that the Tribunal would, consistently with current practice, generally be constituted by single-member panels, with use of multi-member panels reserved for particularly complex or novel matters, and the small number of provisions which require them (for example, new subsection 21AA(2) in relation to certain reviews in the Security Division).

273. Exercise of powers before the hearing commences: new subsection 19B(2) would provide that, at any time before the hearing of a proceeding commences, the powers of the Tribunal in relation to the proceeding may be exercised by the President or an authorised member. Members would be authorised by the President under new section 59A inserted by Item 132.

274. This provision allows the Tribunal flexibility in dealing efficiently with issues arising before the hearing of an application and reflects the policy of existing paragraph 21(1A)(a) of the AAT Act. However, while existing paragraph 21(1A)(a) empowers presidential members and authorised members to exercise these powers, new subsection 19B(2) would empower the President and authorised members. In practice, it is expected that the President would authorise all Deputy Presidents, as well as other members in accordance with the existing practice of the tribunals.

275. New subsection 19B(3) would provide that certain powers cannot be exercised by the President or an authorised member in the pre-hearing phase under new subsection 17D(2). These include:

•

the power under section 34J to review a proceeding on the papers without a hearing where the parties consent

•

the power under section 43 to make a decision on the proceeding

•

the power under section 59 for the Tribunal to give an advisory opinion, and

•

any powers required or permitted to be exercised by specific persons by the Act or another enactment, or by the Tribunal as constituted in accordance with the provision.

276. It would be inappropriate for these powers to be exercised otherwise than by the Tribunal as constituted for a matter, or by the person specified by the relevant provision. This approach reflects the policy of existing subsection 21(1A) but simplifies and clarifies the drafting.

277. Scope: New subsection 19B(4) would provide the new section 19B does not apply to proceedings in the Security Division. Subdivision B provides rules for constitution of the Tribunal in the Security Division (see new sections 19E and 19F below).

New section 19C - Constitution for review of taxing of costs

278. New section 19C would provide rules for the constitution of the Tribunal for a review of the taxing of costs in another proceeding. Both new and existing subsections 69A(2) allow parties to apply for a review of costs taxed by an officer of the Tribunal. New section 19C would replace the rules currently provided by existing sections 23E and 23F for the constitution of the Tribunal to hear these reviews in simplified form.

279. New subsection 19C(1) would provide that for a review of taxing of costs, the Tribunal must be constituted by the member who dealt with the other proceeding, or if multiple members heard the proceeding, the member who presided in the proceeding. This reflects the policy of existing section 23E.

280. New subsection 19C(2) would allow the President to direct another member to constitute the Tribunal for this purpose if the member who would constitute the Tribunal under subsection (1) cannot deal with the proceeding, because the member:

•

has ceased to be a member

•

is unavailable, or

•

has been directed by the President not to take part in the review.

281. This reflects the policy of existing section 23F.

282. New subsection 19C(3) would provide that the President must not give directions that would result in none of the members who constituted the Tribunal for purposes of the other proceeding constituting the Tribunal for the purposes of the review, unless the President is satisfied that it is in the best interests of justice to do so. This reflects the policy of existing subsections 23F(5) and (6).

New section 19D - Reconstitution

283. New section 19D would provide rules for the reconstitution of the Tribunal for a proceeding. The rules for reconstitution would be simplified by removing the explicit ability for parties to request reconstitution of the Tribunal under existing section 21A of the AAT Act. In practice, the President would carefully consider any such requests, and this does not need to be provided in legislation.

284. Reconstitution before the hearing commences: new subsection 19D(1) would provide that, at any time before the hearing of a proceeding commences, the President may revoke a direction under subsection 19A(1) constituting the matter for the proceeding, and issue another direction. This reflects the policy of existing subsection 20B(2).

285. Reconstitution after the hearing commences: new subsections 19D(2)-(4) would provide rules for reconstitution of the Tribunal after a hearing commences. The President would be able to reconstitute the Tribunal after a hearing has commenced where either:

•

a member constituting the Tribunal for the proceeding stops being a member, is unavailable, or is directed by the President not to take part in the proceeding, or

•

the President considers that reconstituting the Tribunal is in the interests of achieving the expeditious and efficient conduct of the proceeding.

286. This reflects the policy of existing section 23 of the AAT Act, sections 355 and 422 of the Migration Act and clause 12 of Schedule 3 to the SSA Act (reconstitution where a member is unavailable) and existing section 23A of the AAT Act, sections 355A and 422A of the Migration Act, and clause 12A of Schedule 3 to the SSA Act (reconstitution to achieve expeditious and efficient conduct of proceeding.

287. However, new subsection 19D(3) would provide that new subsection 19D(2) would not apply to proceedings in the Security Division. This reflects the policy of existing subsections 23(1) and 23A(1). Subdivision B provides rules for reconstitution of the Tribunal in the Security Division (see new sections 19E and 19F below).

288. New subsection 19D(4) would provide that the reconstituted Tribunal must continue the proceeding, and in doing so, may have regard to any record of the proceeding before the Tribunal as previously constituted.

289. The requirement of existing subsection 23(10) that the President consult the parties before reconstituting the Tribunal has not been reproduced. This is not a requirement for either the MRT-RRT or the SSAT and need not be retained.

290. President's directions: new subsection 19D(5) would provide that the President must not direct a member not to take part in a proceeding under new subparagraph 19D(2)(a)(iii) unless the President is satisfied that it is in the interests of justice to do so, and has consulted the member concerned. This reflects the requirements of existing paragraph 23(9)(b) of the AAT Act, and existing paragraph 12(1AA)(b) of Schedule 3 to the SSA Act, but is not a requirement in the MRT-RRT.

291. New subsection 19D(6) would provide that the President must not revoke a direction under new subsection 19D(2) unless the President is satisfied that it is in the interests of justice to do so, and has consulted each member of the Tribunal who would cease to be a member of the Tribunal as reconstituted. The requirement to consult with members in these circumstances reflects the requirements of existing paragraph 23(11)(b), but is not currently a requirement for the MRT-RRT or the SSAT.

292. New subsection 19D(7) would provide that in giving directions for reconstitution, the President must have regard to the Tribunal's objectives in new section 2A, that is, to provide a mechanism of review that:

•

is accessible

•

is fair, just, economical, informal and quick

•

is proportionate to the importance and complexity of the matter, and

•

promotes public trust and confidence in the decision making of the Tribunal.

293. This reflects the policy of existing subsection 23(12).

New section 19E - Constitution of Security Division

294. New section 19E would provide rules for the constitution of the Security Division (other than for proceedings in relation to records of ASIO, which are dealt with in new section 19F) to be applied by the President in exercising the power to constitute the Tribunal under new section 19A. These rules would apply instead of the general rules regarding constitution and reconstitution of the Tribunal, which would not apply in the Security Division under new subsections 19B(4) and 19D(3).

295. The new section reflects the policy of existing section 21AA of the AAT Act. However, subsection 21AA(5), which provides specific qualifications for review of particular matters in the Security Appeals Division (as it is currently known), has not been reproduced. The President of the Tribunal is expected give appropriate weight to the expertise required to deal with an application in determining the constitution of the Tribunal to hear matters in the Division.

296. Scope: new subsection 19E(1) would provide that the rules in new section 21AA apply to any proceeding in the Security Division other than a proceeding to which new section 19F applies, subject to subsection 65(2) of the Australian Security Intelligence Organisation Act 1979, which provides that for certain inquiries into security assessments, the constitution and procedure of the Tribunal shall be as determined by the President. New subsection 19E(1) reproduces the policy of existing subsection 21AA(1).

297. Rules regarding constitution: new subsections 19E(2) and (3) would provide rules regarding constitution of the Tribunal to deal with proceedings in the Security Division. New subsection 19E(2) would provide that the Division is to be constituted by a presidential member (either the President or a Deputy President) and two other members. However, new subsection 19E(3) would provide that the presidential member must not participate in the proceeding if the presidential member is, or has been, the Director-General of Security or an ASIO employee or affiliate. The provisions reproduces the policy of existing subsections 21AA(2) and (3).

298. Presiding member: new subsection 19E(4) would provide that the presidential member is to preside at a hearing of the proceeding. This reproduces the policy of existing subsection 21AA(4).

299. Reconstitution: new subsections 19E(5) and (6) would provide rules regarding the reconstitution of the Tribunal in the Security Division. New subsection 19E(5) would provide that if, after a hearing commences and before the Tribunal determines the proceeding, a member becomes unavailable the President may revoke a direction constituting the Tribunal for the proceeding and make a new one. New subsection 19E(6) provides that, in these circumstances, the reconstituted Tribunal must continue the proceeding, and in doing so, may have regard to any record of the proceeding before the Tribunal was reconstituted. These provisions reproduce the policy of existing subsection 21AA(6).

New section 19F - Constitution of Security Division for proceedings to review certain Archives decisions

300. New section 19F would provide rules for the constitution of the Security Division in relation to proceedings relating to records of ASIO to be applied by the President in exercising the power to constitute the Tribunal under new section 19A. These rules would apply instead of the general rules regarding constitution and reconstitution of the Tribunal, which would not apply in the Security Division under new subsections 19B(4) and 19D(3).

301. The new section reflects the policy of existing section 21AB of the AAT Act. However, provisions relating to reconstitution of the Tribunal at the request of a party (existing subsections 21AB(4)-(8)) have not been reproduced. This is consistent with the approach that would be adopted in relation to proceedings in Divisions other than the Security Division.

302. Rules regarding constitution: new subsections 19F(2) and (3) would provide rules regarding constitution of the Tribunal to deal with proceedings in the Security Division relating to records of ASIO. New subsection 19F(2) would provide that the Division is to be constituted by three presidential members, or a presidential member alone. However, new subsection 19F(3) would provide that a presidential member must not participate in the proceeding if the presidential member is, or has been, the Director-General of Security or an ASIO employee or affiliate. The provisions reproduces the policy of existing subsections 21AB(2) and (3).

303. Presiding member: new subsection 19F(4) would provide rules for determining the presiding member:

•

if the President is one of the members constituting the Tribunal, the President will preside

•

if the President is not one of the members constituting the Tribunal, but one or more members who are Judges is, the (most senior) Judge will preside, and

•

if neither the President nor a member who is a Judge constitutes the Tribunal, the Deputy President whom the President directs will preside.

304. New subsection 19F(4) reproduces the policy of existing subsection 21AB(9).

305. Reconstitution: new subsections 19F(5) and (6) would provide rules regarding the reconstitution of the Tribunal in the Security Division. New subsection 19F(5) would provide that if, after a hearing commences and before the Tribunal determines the proceeding, a member becomes unavailable, the President may revoke a direction constituting the Tribunal for the proceeding and make a new one. New subsection 19F(6) provides that, in these circumstances, the reconstituted Tribunal must continue the proceeding, and in doing so, may have regard to any record of the proceeding before the Tribunal was reconstituted. These provisions reproduce the policy of existing subsections 21AB(10) and (11).

Items 28-38: amendments to Part IIIA of the AAT Act (Management of the Tribunal)

306. Items 28-38 would amend Part IIIA of the AAT Act, which provides for the management of the Tribunal.

307. The amendments made by these Items make a number of changes to the approach to the management of the Tribunal:

•

greater clarity would be provided as to the distinction between the President's responsibility for the administrative affairs of the Tribunal and the Registrar's role as public service Agency Head and accountable authority for financial matters (see particularly Item 27)

•

the specific references to Conference, District and Deputy Registrars in the Act would be replaced by a general concept of 'officers of the Tribunal' (see particularly Item 36), and

•

provisions relating to the Registrar would be made consistent with the approach applied to other statutory officers of the Tribunal in relation to acting appointments, terms and conditions, leave of absence, and outside employment of the Registrar (see Items 29, 31, 32, and 34).

Item 28 - Section 24A

308. Item 28 would repeal existing section 24A of the AAT Act and substitute a new section 24A.

309. Existing section 24A provides that the President is responsible for managing the administrative affairs of the Tribunal, and empowers the President to do all things necessary or convenient to be done, including entering into contracts, and acquiring or disposing of personal property.

310. New section 24A would maintain the President's responsibility for the administrative affairs of the Tribunal (new subsection 24A(1)), but clarify the interaction between the President's administrative powers and the powers of the Registrar as Agency Head for staffing matters and accountable authority for financial matters. In particular, as the Registrar is the primary obligation-holder in relation to these matters, it is appropriate that the Registrar is given primary responsibility in these fields to ensure that the Registrar can discharge his or her responsibilities under those Acts.

311. To give effect to this policy:

•

new subsection 24A(2) would provide that the President is not responsible under subsection 24A(1) for matters relating to the Tribunal under the Public Governance, Performance and Accountability Act 2013 (PGPA Act), or the Public Service Act 1999

•

new subsection 24A(3) would provide that the Registrar is not subject to direction by the President in relation to the Registrar's functions and powers under those Acts (reproducing the policy of existing subsection 24D(4)), and

•

new subsection 24A(4) would require the Registrar to consult with the President in relation to the Registrar's performance of functions or exercise of powers under the PGPA Act or the Public Service Act.

312. This approach is consistent with the existing policy position, but is intended to more clearly delineate responsibilities. The Registrar and the APS staff of the Tribunal would have a crucial role in supporting the President and the members of the Tribunal to pursue their responsibilities under the Act. It is appropriate that the President and Registrar work closely together, as the Registrar's performance of his or her functions and powers can have a clear bearing in the President's responsibilities to manage the Tribunal's administrative affairs and the discharge of business in line with its statutory objectives.

313. It is expected that the consultation requirement in subsection 24A(4) would be met in the normal course of the Registrar's working relationship with the President. No particular formal arrangement is necessary and the nature and extent of consultation may differ depending on the matter at hand. The validity of any decision taken by, or any action or omission of, the Registrar would not be affected by the consultation requirement.

Item 29 - Paragraph 24BA(a)

314. Item 29 would repeal paragraph 24BA(a) of the AAT Act and substitute a new paragraph 24BA(a).

315. Existing paragraph 24BA(a) provides for a listed entity for the purposes of the PGPA Act consisting of:

•

the Registrar

•

the District Registrars, Conference Registrars, Deputy Registrars, and

•

the staff of the Tribunal.

316. New paragraph 24BA(a) include the Registrar and the staff of the Tribunal, but would not include the reference to the District, Conference, and Deputy Registrars. As all registrars are staff of the Tribunal, this reference is redundant.

317. The specific references to District, Conference and Deputy Registrars in the AAT Act would also be replaced by the concept of 'officers of the Tribunal' by new section 24PA, which would be inserted by Item 36. It is not appropriate to refer to officers of the Tribunal in this provision, as the officers would potentially include other APS employees and Registrars of the Supreme Court of Norfolk Island, who are not part of the Tribunal but may exercise certain functions under the AAT Act or another enactment.

Item 31 - Subsections 24D(4) and 24E(4)

318. Item 31 would repeal existing subsections 24D(4) and 24E(4) of the AAT Act.

319. Existing subsection 24D(4) provides that the Registrar is not subject to direction by the President in relation to the Registrar's performance of functions, or exercise of powers under the Public Service Act and PGPA Act.

320. Item 31 would repeal subsection 24D(4) as this policy would be reflected in the new section 24A inserted by Item 28.

321. Existing subsection 24E(4) provides that the remuneration and allowances payable to the Registrar are to be paid out of money appropriated by the Parliament for the purposes of the Tribunal.

322. Item 31 would repeal subsection 24E(4) as this provision is unnecessary.

Item 32 - Subsection 24F(4)

323. Item 32 would amend existing subsection 24F(4) of the AAT Act by omitting the words 'President' and substituting 'Minister'.

324. Existing subsection 24F(4) provides that the Registrar holds office on such terms and conditions (if any) in respect of matters not provided for by the AAT Act as are determined by the President.

325. The amendment in Item 32 would make the Minister responsible for managing the terms and conditions of the Registrar, consistent with other statutory appointments under the Act under section 8(7) as amended by Item 21.

Item 33 - Subsection 24G(2)

326. Item 33 would amend existing subsection 24G(2) of the AAT Act to omit the words 'President, with the approval of the Minister' and substitute 'Minister'.

327. Existing subsection 24G(2) provides that the President may grant the Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the President, with the approval of the Minister, determines.

328. The amendment in Item 33 would provide that the Minister should approve the terms and conditions relating to leave of absence. The President would remain the approver for the Registrar's leave of absence. This is consistent with the approach to other statutory appointments under the Act under new section 12 inserted by Item 26.

Item 34 - Section 24K

329. Item 34 would repeal existing section 24K of the AAT Act and substitute a new provision.

330. Existing section 24K provides the grounds upon which the Registrar of the Tribunal may be terminated by the Governor-General. These include misbehaviour, physical or mental incapacity, and grounds related to bankruptcy, absence without leave, unapproved paid outside employment, and failure to disclose conflicts of interest. The section also provides complex rules relating to the superannuation arrangements of the Registrar and retirement.

331. Item 34 would replace this provision with a new section 24K with drafting consistent with the current standard model for termination provisions.

332. New subsection 24K(1) would provide that the Governor-General may terminate the appointment of the Registrar for misbehaviour (new paragraph 24K(1)(a)), or if the Registrar is unable to perform the duties of his or her office because of physical or mental incapacity (new paragraph 24K(1)(b)). New paragraph 24K(1)(b) slightly modifies the policy of existing subsection 24K(1) by making it clearer that termination for incapacity can only occur where there incapacity renders the Registrar unable to perform the duties of his or her office.

333. New subsection 24K(2) would provide that the Governor-General may terminate the appointment of the Registrar on bankruptcy-related grounds, absence without leave, for unapproved outside paid employment, and failure without reasonable excuse to disclose a conflict of interest. This provision reproduces the policy of existing subsection 24K(2) with simplified drafting.

334. New subsection 24K(3) would provide that the appointment of the Registrar may not be terminated other than in accordance with new section 24K. This is a new provision, and is intended to remove any doubt as to the options available for terminating the Registrar.

335. Existing subsections 24K(4)-(6) are not reproduced. It is not necessary to specify arrangements in relation to superannuation in the AAT Act, and doing so is not consistent with the standard model for termination provisions in Commonwealth legislation.

Item 35 - Section 24M

336. Item 35 would amend existing section 24M of the AAT Act by omitting the word 'President' and substituting the word 'Minister'.

337. Existing section 24M provides that the President may appoint an acting Registrar of the Tribunal during a vacancy in the Registrar's office, or during any period when the Registrar is absent from duty or outside Australia.

338. The amendment made by Item 35 would make the Minister responsible for appointing an acting Registrar rather than the President, consistent with the approach for appointing an acting President under new subsection 10(1) inserted by Item 22.

Item 36 - Sections 24N and 24P

339. Item 36 would repeal existing sections 24N and 24P of the AAT Act and substitute new sections 24N, 24P and 24PA.

340. Existing sections 24N of AAT Act provides for the engagement and functions of the staff of the Tribunal and Conference, District and Deputy Registrars.

341. Existing section 24P establishes the AAT as a Statutory Agency for the purposes of the Public Service Act.

342. These provisions would be replaced by Item 36 with simplified provisions providing for the staff of the Tribunal, officers of the Tribunal, and the functions of the Registrar and staff.

New section 24N - Staff

343. Item 36 would insert a new section 24N providing for the staff of the Tribunal.

344. New subsection 24N(1) would provide that the staff of the Tribunal must be engaged under the Public Service Act. This reproduces the policy of existing subsection 24N(3) of the AAT Act, and section 472 of the Migration Act.

345. New subsection 24N(2) would provide that for the purposes of the Public Service Act, the Registrar and the staff of the Tribunal form a Statutory Agency, and the Registrar is the Head of that agency. This reproduces the policy of existing section 24P of the AAT Act. However, the other Tribunals differ in their management arrangements:

•

the SSAT is not a separate APS agency; its staff are provided by the Department of Social Services, and the Registrar of the SSAT holds Public Service Act powers by delegation from the Secretary of that Department, and

•

the MRT-RRT has a fused management whereby the Principal Member is, in addition to the chief statutory officer, also the public service Agency Head, accountable authority for the purposes of the PGPA Act.

New section 24P - Functions of Registrar and staff

346. Item 36 would insert a new section 24P providing for the functions of the Registrar and staff. It would provide that the Registrar and staff of the Tribunal have the functions conferred on them by:

•

the AAT Act or any other enactment, and

•

by the President.

347. This would extend existing subsection 24N(5) by recognising that the Registrar and staff may have functions conferred on them by other enactments. A number of Commonwealth Acts confer specific functions on officers of the Tribunal.

New section 24PA - Officers of the Tribunal

348. Item 36 would insert a new section 24PA providing for officers of the Tribunal.

349. Existing section 24N provides that there will be District, Conference and Deputy Registrars of the Tribunal (existing subsection 24N(1)). Conference Registrars are appointed by the President (existing subsection 24N(1A)), while other registrars are appointed by the Registrar (existing subsection 24N(2)). Registrars may be appointed as any combination of District, Conference or Deputy Registrar (subsection 24N(1B), and must be staff of the Tribunal (subsection 24N(3)). The Registrars are given the powers, duties, and functions given by the Act or the President.

350. References to specific types of Registrar would no longer be included in the Act. While positions of this kind would continue to exist in the amalgamated Tribunal, the Act would be simplified by retaining only the concept of 'officer of the Tribunal'. Under new subsection 24PA the Registrar would be able to appoint a person to be an officer of the Tribunal if the person is a member of the staff of the Tribunal, an APS employee made available to the Tribunal, or an officer of the Supreme Court of Norfolk Island, and the Registrar is satisfied that the person has appropriate qualifications and experience. Officers of the Tribunal would then be able to carry out the functions and exercise the powers identified throughout the AAT Act and other enactments that are conferred on officers of the Tribunal.

351. This approach would provide significantly greater flexibility in the allocation of functions to Registrars, and would allow a structure reflecting the use of officers across the AAT, MRT-RRT and SSAT. The principal policy differences between new section 24PA and the existing provisions is that the Registrar would be the appointer for all officers, and appointment as an officer would be opened to officers of the Supreme Court of Norfolk Island. The latter amendment is intended to improve the efficiency of the amalgamated Tribunal's operations on Norfolk Island. Under new section 59B (which would be inserted by Item 132) the President would continue to have the power to authorise officers of the Tribunal for the purposes of particular powers under the AAT Act or other enactments.

Item 37 - Subsection 24R(1)

352. Item 37 would amend existing subsection 24R(1) of the AAT Act by inserting the words 'including the operation of the Divisions' after 'administrative affairs'.

353. Existing section 24R provides for the Tribunal's annual reports.

354. The addition of the proposed words would require the Tribunal to report on the operations of its Divisions. This is appropriate given the size, complexity and importance of the new jurisdictions being brought into the amalgamated Tribunal in the Social Services and Child Support Division and the Migration and Refugee Division.

Item 38 - Section 24V

355. Item 38 would repeal existing section 24V of the AAT Act.

356. Existing section 24V provides the President with a delegation power.

357. New section 10A which would be inserted by Item 25 would provide the President with a broad power of delegation. Existing section 24V is no longer necessary and Item 38 would therefore repeal it.

Item 39 - Before Division 1 of Part IV

358. Item 39 would insert new Division 1A, comprising section 24Z, into Part IV of the AAT Act. Part IV provides for the procedure to be followed by the Tribunal on review of decisions. New subsection 24Z(1) would exclude the application of Part IV in relation to proceedings in the Migration and Refugee Division, subject to two exceptions in new subsection 24Z(2).

359. The procedures that apply to review of decisions in the Migration and Refugee Division would continue to be set out in the Migration Act: specifically, in Part 5 in relation to decisions reviewed by the MRT and in Part 7 in relation to decisions reviewed by the RRT. While there are elements in common between the procedure set out in Parts 5 and 7 of the Migration Act and the procedure set out Part IV of the AAT Act, there are certain different or additional rules that reflect the particular characteristics of the migration and refugee jurisdiction. Schedule 2 contains proposed amendments to the Migration Act, including in relation to procedures for the conduct of reviews.

360. New subsection 24Z(2) would provide that, notwithstanding subsection 24Z(1), sections 25 and 42 of the AAT Act apply in relation to proceedings in the Migration and Refugee Division:

•

Section 25 is the core provision that empowers the Tribunal to review a decision where jurisdiction is conferred on it under another enactment. The Migration Act would confer jurisdiction on the Tribunal to review decisions under Parts 5 and 7 of that Act.

•

Section 42 provides for the resolution of disagreements between Tribunal members where more than one member participates in a review. It is appropriate to have a consistent rule across the Tribunal for how any such disagreements between members are to be resolved.

Item 40 - Subsection 25(4)

361. Item 40 would repeal existing subsection 25(4) of the AAT Act, consistent with other changes to simplify the Act.

362. Existing subsection 25(4) provides that the Tribunal has power to review any decision in respect of which an application is made under another enactment. This statement is essentially declaratory, as subsection 25(1) provides that other enactments may provide for applications to be made to the Tribunal for review of decisions.

363. The repeal of this provision would not change the existing scope of the Tribunal's jurisdiction or powers.

Item 40A - Subsection 25(6)

364. Item 40A would amend subsection 25(6) of the AAT Act, which permits other enactments to modify certain provisions of the AAT Act if the enactment provides for applications to the Tribunal. 'Enactment' is broadly defined in section 3 of the AAT Act and includes, for example, regulations. Subsection 25(6) preserves the validity of enactments which would not otherwise be permitted to modify the AAT Act.

365. It is desirable to preserve the status quo that the AAT Act may be modified where appropriate in relation to particular types of applications. Item 40A would retain subsection 25(6) and amend it to also include new sections 29AB and 29AC in the list of provisions that may be modified by other enactments. This technical amendment is necessary because the matters dealt with in new sections 29AB and 29AC (inserted by Item 51 of Schedule 1) about applications to the Tribunal were previously dealt with in section 29 of the Act, which is a provision that may be modified under existing subsection 25(6).

Item 41 - Paragraph 25(8)(c)

366. Item 41 would repeal existing paragraph 25(8)(c) of the AAT Act and substitute new paragraph 25(8)(c).

367. The effect of existing paragraph 25(8)(c) is that a Norfolk Island enactment cannot alter the operation of subsection 21(1) of the Act. Existing subsection 21(1) provides that the Tribunal is not to be constituted by more than three members. New paragraph 25(8)(c) would update the reference to subsection 21(1) so that it is a reference to new paragraph 19B(1)(a), as a consequence of changes to section 21 at Item 27. This consequential amendment does not affect existing policy.

Item 42 - After subsection 26(1)

368. Item 42 would insert new subsection 26(1A) of the AAT Act to exclude the operation of paragraph 26(1)(b) in relation to child support first reviews.

369. Existing paragraph 26(1)(b) empowers the Tribunal to alter the decision under review with the consent of the parties. No such power currently exists in relation to child support first reviews. It is inappropriate to extend it to child support first reviews, because it would introduce scope for delay and result in disagreement between the parties as to whether and how the power should be used.

Item 43 - Subsection 28(1AAA)

370. Item 43 would repeal subsection 28(1AAA) of the AAT Act and substitute a new subsection 28(1AAA).

371. Existing subsection 28(1) provides that any person who may apply to the Tribunal for the review of a decision is entitled to request, and receive, a statement of reasons for the decision from the person who made the decision. Existing subsection 28(1AAA) provides that subsection 28(1) does not apply in relation to decisions reviewable in the Security Appeals Division (as it is currently known). New paragraph (1AAA)(a) would continue this position. This is existing policy and reflects the sensitive nature of information that may form the basis of such decisions.

372. New paragraph (1AAA)(b) would provide that subsection 28(1) does not apply in relation to a decision that is a decision on AAT first review within the meaning of the FAA Act, CSRC Act, SA Act, SSA Act and PPL Act. This exclusion is appropriate because those Acts provide parties with an entitlement to obtain a written statement of reasons in respect of all decisions made by the Tribunal: see new section 178 of the SSA Act, inserted by Item 64 of Schedule 3, new section 95P of the CSRC Act, inserted by Item 64 of Schedule 4, new section 126 of the FAA Act, inserted by Item 22 of Schedule 5, new section 235 of the PPL Act, inserted by Item 20 of Schedule 6, and new section 318 of the SA Act, inserted by Item 11 of Schedule 7.

Item 44 - Subsection 28(1AC) and Item 45-subsection 28(5)

373. Item 44 would repeal subsection 28(1AC) of the AAT Act and substitute a new subsection 28(1AC) and Item 45 would repeal subsection 28(5) and substitute new subsections 28(5)-(6).

374. Existing subsection 28(1AC) provides that if a decision-maker refuses to provide a statement of reasons in respect of a reviewable decision, a person may apply to the Tribunal for a decision as to whether a statement must be provided. It provides that an application may be made as prescribed by Regulations. New subsection 28(1AC) would remove the requirement for application processes to prescribed but otherwise preserve existing policy.

375. Existing subsection 28(5) permits the Tribunal, upon application, to declare that the statement of reasons provided by a decision-maker is inadequate and that an additional statement must be provided. New subsections 28(5)-(6) are redrafted in a simplified way. The only change to existing policy would be the removal of the requirement for application processes to be prescribed in Regulations.

376. The removal of the requirement to prescribe in Regulations how certain types of applications may or must be made, including prescribed forms and their use, is proposed consistently throughout the Bill. This change would not prevent such matters being prescribed in Regulations but would also permit the President in appropriate circumstances to specify application processes that are not otherwise specified in the Act in practice directions made under new section 18B and approve forms administratively. This would provide more flexibility to the Tribunal to meet the needs of its various jurisdictions.

Item 46 - Paragraphs 29(1)(a), (b) and (c)

377. Item 46 would repeal paragraphs 29(1)(a), (b) and (c) of the AAT Act and substitute new paragraphs 29(1)(a), (b) and (c). The existing paragraphs deal with requirements for making applications to the Tribunal. The new paragraphs would make three changes to existing policy, as follows.

378. Existing paragraph 29(1)(a) requires that applications must be made in writing. New subparagraph 29(1)(a)(ii) would provide an exception so that if a decision is reviewable in the Social Services and Child Support Division, a person may make an oral application to the Tribunal. The AAT Regulations would determine which decisions are reviewable in the Social Services and Child Support Division (see Item 27). The ability to make oral applications is an important feature of the SSAT that would be preserved. However, new section 224 of the PPL Act (inserted by Item 20 of Schedule 6) would be an exception to the general position and would require applications to be made in writing notwithstanding subparagraph 29(1)(a)(ii).

379. Existing paragraph 29(1)(b) provides that a person may use a prescribed form when making an application. New paragraph 29(1)(b) would not include this requirement. The removal of the requirement for the application forms to be a prescribed form would permit the President to approve forms administratively, thereby providing more flexibility to the Tribunal to create and amend forms from time to time to meet the needs of its various jurisdictions. This change is proposed consistently throughout the Bill.

380. New paragraph 29(1)(b) would instead require applications to the Tribunal to be accompanied by any prescribed fee. This would promote early payment of fees and assist the Tribunal in managing applications expeditiously. New paragraph 29(1)(b) would not have any effect on existing arrangements whereby certain applications do not attract any fee, or prevent applicants seeking a reduction of fees in appropriate circumstances. The existing AAT Regulations also deal with the effect of not paying a prescribed fee that is payable. The application is taken to have been lodged but the Tribunal is not required to deal with it unless and until the fee is paid. If the fee is not paid within the time period prescribed in the AAT Regulations, existing section 69C would continue to empower the Tribunal to dismiss the application.

381. New paragraph 29(1)(c) would preserve the policy of existing paragraph 29(1)(c) that, in most circumstances, an application must contain a statement of reasons for the application. The exception from this requirement has been extended to oral applications, to reflect the amendment to allow applications to be made orally for decisions reviewable in the Social Services and Child Support Division.

Item 47 - Subsection 29(1B)

382. Item 47 would repeal subsection 29(1B) of the AAT Act. Existing subsection 29(1B) provides that the Tribunal may request applicants to amend their statement of reasons for their application if it is insufficient. Item 51 would insert an equivalent provision as new section 29AB.

Item 48 - Subsection 29(9)

383. Item 48 would repeal subsection 29(9) of the AAT Act and substitute new subsection 29(9). Existing subsection 29(9) provides that if a person has sought an extension of time in which to apply to the Tribunal, the Tribunal may require the applicant to give notice of the application to other persons whose interests the Tribunal considers may be affected. This is a discretionary power.

384. New subsection 29(9) would continue to provide that the Tribunal has discretion as to whether any persons should be notified of applications for extension of time that may affect their interests. However, the power to require such notification would be extended to officers of the Tribunal as well as the Tribunal. Further, the Tribunal or an officer of the Tribunal could give the notification, or require the applicant to do so. These changes provide more flexibility to the Tribunal to manage applications for extension of time.

Item 49 - Subsection 29(10)

385. Item 49 would amend subsection 29(10) of the AAT Act to remove the requirement for the way in which a person notifies the Tribunal that they oppose an application for extension of time to be prescribed in Regulations. Similar changes to prescription requirements are proposed consistently throughout the Bill. The amendment to subsection 29(10) would not prevent such matters being prescribed in Regulations but would also would permit the President to specify them in practice directions made under section 18B, providing more flexibility to the Tribunal. There would be no other change to existing policy in subsection 29(10).

Item 50 - Subsection 29(11)

386. Item 50 would repeal subsection 29(11) of the AAT Act. Existing subsection 29(11) requires a Registrar, District Registrar or Deputy Registrar to give notice of an application for review of a decision to the person who made the decision. Item 50 would insert an equivalent provision as new section 29AC.

Item 51 - After section 29

387. Item 51 would insert new sections 29AA, 29AB and 29AC after section 29 of the AAT Act.

New section 29AA - Oral applications

388. New section 29AA is consequential to new subparagraph 29(1)(a)(ii), which would permit oral applications in the Social Services and Child Support Division(Item 46). New subsection 29AA(1) would require the Tribunal to make a written record of an oral application. New subsection 29AA(2) would ensure that Part IV has effect in relation to oral applications in the same way as written applications.

New section 29AB - Insufficient statement of reasons for application

389. New section 29AB would replace subsection 29(1B) of the AAT Act, which would be repealed by Item 47. Existing section 29(1B) provides that the Tribunal may request applicants to amend their statement of reasons for their application if it is insufficient. No change to existing policy is intended. The drafting of new subsection 29AB is simplified and its placement at the end of section 29 is more logical.

New section 29AC - Notice of application

390. New section 29AC would replace subsection 29(11) of the AAT Act, which would be repealed by Item 50. Existing subsection 29(11) requires a Registrar, District Registrar or Deputy Registrar to give notice of an application for review of a decision to the person who made the decision. New paragraph 29AC(1)(b) would preserve this requirement, while simplifying the provision by placing the obligation solely on the Registrar (who may delegate the power under new subsection 10A(3) at Item 25). New paragraph 29AC(1)(a) would further require the Registrar to give written notice that the application has been received to the applicant. This would reflect existing practice where the Tribunal provides applicants with confirmation of the receipt of their application.

391. New subsection 29AC(2) would deal with notification of applications to third parties whose interests may be affected by the decision under review. There is no current legislative requirement in the AAT Act to notify third parties of applications for review. However, in practice the Tribunal does so in appropriate cases. Further, section 160 of the SSA Act, section 235 of the PPL Act, section 102 of the CSRC Act and section 122 of the FAA Act all require the SSAT Principal Member to take all reasonable steps to give written notice of the application to persons whose interests are affect but are not a party, and their right to be added as a party. Accordingly, this requirement has been moved into the AAT Act to preserve these provisions and to codify existing practice.

392. The power in new subsection 29AC(2) would be vested in the Tribunal or an officer of the Tribunal. It would be discretionary. This reflects the fact that in some cases there may be a large class of persons whose interests may be affected by a decision, such that individual notification is neither necessary nor practical. Pursuant to new paragraphs 29AC(2)(a) and (b) respectively, the Tribunal or an officer of the Tribunal may give notification of the application, or the applicant may be required to do so.

Item 52 - Section 29B (heading)

393. Item 52 would repeal the heading to section 29B of the AAT Act and substitute a new heading which would clarify that section 29B relates to review of security assessments only. No change to the scope of the provision is intended.

Item 53 - Subsections 30(1AA), 30A(1AA) and 31(2)

394. Item 53 would make consequential amendments to subsections 30(1AA), 30A(1AA) and 31(2) of the AAT Act to update the references to the 'Security Appeals Division' to the 'Security Division', to reflect the names of the Division in the amalgamated Tribunal in section 17A at Item 27. No other policy change is intended.

Item 54 - Section 32

395. Item 54 would repeal section 32 of the AAT Act and substitute new section 32. Existing section 32 provides that parties may appear in person at a hearing or be represented by some other person. New paragraph 32(1)(a) would preserve this position in relation to Divisions of the Tribunal other than the Social Services and Child Support Division. New paragraph 32(1)(a) would apply in relation to second review of decisions, which would be dealt with in the Tribunal's General Division. The Migration Act contains rules concerning representation in proceedings in the migration and refugee proceedings. These provisions would be maintained in the Migration Act. Rules regarding representation in section 32 would not apply in the Migration and Refugee Division under new section 24Z, inserted by Item 39.

396. Representation in the Social Services and Child Support Division would be dealt with in new paragraph 32(1)(b) and subsection 32(2), which would preserve the existing rules in the SSAT: see subsections 161(2) and (3) of the SSA Act, 103C(2) and (2A) of the CSRC Act, 123(3) and (3A) of the FAA Act, and 237(2) and (2A) PPL Act, and sections 160A of the SSA Act, 236 of the PPL Act, 122A of the FAA Act, and 103B of the CSRC Act.

397. New paragraph 32(1)(b) would provide that an agency party may be represented at a hearing in a proceeding in the Social Services and Child Support Division. This is necessary as an agency party cannot appear other than by way of representative. New section 39AA at Item 90 would provide the manner in which an agency party may participate, consistently with existing rules in the SSAT.

398. New subsection 32(2) would provide that a party (other than an agency party) may be represented at a hearing in a proceeding in the Social Services and Child Support Division with the permission of the Tribunal, or may appear in person.

399. New subsection 32(3) would require the Tribunal, in considering whether to grant permission to a party in the Social Services and Child Support Division to be represented, to have regard to the objective of the Tribunal in section 2A, the wishes of the parties and the need to protect their privacy.

400. The Tribunal's power to determine whether parties (other than agency parties) in the Social Services and Child Support Division should be represented would promote the inquisitorial and informal nature of proceedings as well as the efficient conduct of reviews. It also reflects the sensitive and personal nature of the matters dealt with in social services and child support reviews.

401. New subsection 32(4) would replace existing subsection 40(4), which provides that a person who is summoned to appear before the Tribunal may be legally represented with the permission of the Tribunal. New subsection 32(4) is deliberately broader in two respects. First, it would permit representation other than legal representation. In respect of new section 32 generally, representation is not limited to legal representation and could include, for example, support persons. Second, the phrase 'persons required to appear' would capture not only persons who are given a summons under new section 40A at Item 103, but also persons who are required to appear by virtue of similar powers in Acts conferring jurisdiction on the Tribunal.

Item 55 - After subsection 33(1AA)

402. Item 55 would insert a new subsection 33(1AB) after subsection 33(1AA) of the AAT Act, that would require parties and their representatives to use their best endeavours to assist the Tribunal to fulfil its statutory objective in section 2A (Item 1). This is intended to assist the Tribunal in managing the conduct of reviews, by encouraging parties and their representatives to conduct themselves in a manner that would facilitate the fair, just, economical, informal and quick resolution of the matter at hand (amongst the other aspects of the Tribunal's objective). New subsection 33(1AA) would reinforce the nature of merits review in the Tribunal as an administrative process that must be accessible to users and produce the correct or preferable decision with the least possible attendant cost and delay.

Item 56 - Paragraph 33(2)(a)

403. Item 56 would amend paragraph 33(2)(a) of the AAT Act to replace the reference to 'Conference Registrar' with 'officer' of the Tribunal.

404. Existing paragraph 33(2)(a) provides that where the hearing of a proceeding has not commenced, a Conference Registrar authorised by the President under subsection 33(4) may give directions in relation to the proceeding.

405. Amended paragraph 33(2)(a) would remove the reference to authorised Conference Registrar and replace it with authorised officer of the Tribunal. This is consequential to Item 4, which removes the definition of 'Conference Registrar'. Amended paragraph 33(2)(a) would provide that, where the hearing of a proceeding has not commenced, officers of the Tribunal may give directions as to the procedure to be followed in a particular proceeding, if authorised to do so by the President under new section 59B (inserted at Item 132).

Item 57 - At the end of subsection 33(2A)

406. Item 57 would insert new paragraphs (d) to (g) in subsection 33(2A) of the AAT Act.

407. Existing subsection 33(2A) provides a non-exhaustive list of the types of directions the Tribunal may make in relation to the procedure to be followed at or in connection with the hearing of a particular proceeding. New paragraphs 33(2A)(d) to (g) would insert additional examples, such that the Tribunal could make directions:

•

limiting the number of witnesses who may be called

•

requiring witnesses to give evidence at the same time

•

limiting the time for giving evidence or making oral submissions, or

•

limiting the length of written submissions.

408. The matters in paragraphs (d)-(g) would be within the Tribunal's existing power. However, the amendment would put beyond doubt the Tribunal's ability to control the manner in which parties call witnesses and provide evidence or submissions. This is consistent with the overarching principles in subsection 33(1) that the procedure of the Tribunal is within its discretion, and that proceedings shall be conducted with minimum formality and with as much expedition as a proper consideration of the matters before the Tribunal permits.

Item 58 - Subsections 33(3) to (7)

409. Item 58 would repeal subsections 33(3) to (7) of the AAT Act.

410. Existing subsection 33(3) permits a member or authorised Conference Registrar to vary or revoke a direction as to the procedure to be followed at or in connection with the hearing of a proceeding. Subsections 33(4)-(7) permit the President to authorise Conference Registrars (either in specific or general terms) as persons who may give directions under paragraph 33(2)(a).

411. These provisions are not necessary. In relation to subsection 33(3), the power to vary or revoke a direction is inherent in the power to make such directions. Subsections 33(4)-(7) are unnecessary in light of the amendment to paragraph 33(2)(a) at Item 56, which would remove the concept of authorised Conference Registrars from section 33 and replace it with the concept of authorised officers. As the new concept of authorised officers would appear in other provisions, including under new section 40B (inserted by Item 103), the President's power to authorise certain officers of the Tribunal to be authorised officers would be moved to new section 59B (inserted at item 132).

Item 59 - At the end of Division 2 of Part IV

412. Item 59 would insert new section 33A at the end of Division 2 of Part IV of the AAT Act.

413. New section 33A is intended to replace existing subsection 35A(1) and section 34G, which deal with participation by telephone in directions hearings and hearings, and alternative dispute resolution processes, respectively.

414. The use of technology to facilitate participation in proceedings other than in person is common in the Tribunals and is increasing. New section 33A would provide a single rule that in a hearing, directions hearing or alternative dispute resolution process, the Tribunal or the person conducting the directions hearing or alternative dispute resolution process may allow or require a person to participate by telephone or other means of electronic communications equipment.

415. The only change to existing policy under the AAT Act is that in addition to allowing persons to participate by means other than in person, new subsection 33A would empower the Tribunal to require a person to do so. This preserves the existing position in the SSAT under subsections 161(4) and (5) of the SSA Act, subsections 123(4) and (5) of the FAA Act, subsections 103C(3) and (4) of the CSRC Act and subsections 237(3) and (4) of the PPL Act. These provisions would be repealed. The power to proactively direct that a party may participate by telephone or other means of communication is regularly utilised by the SSAT and can be critical to the proper conduct of the review, for example in cases where there may be a history of violence between the parties.

Item 60 - Section 34

416. Item 60 would repeal section 34 of the AAT Act and substitute new section 34.

417. Existing section 34 provides that Division 3, on alternative dispute resolution processes, does not apply to a proceeding in the Security Appeals Division (as it is currently known) to which existing section 39A applies. Paragraph (a) of new section 34 would maintain this exclusion.

418. Paragraph (b) of new section 34 would provide that Division 3 does not apply to proceedings in the Social Services and Child Support Division. This would maintain the existing position in the SSAT where alternative dispute resolution is not used. The informal and non-adversarial nature of social services and child support reviews, as well as the expedition with which reviews are conducted, means alternative dispute resolution is not suitable in these situations. Having a member deal directly with the review is an equally effective means of reaching the correct or preferable decision in any proceeding.

Item 61 - Sections 34A to 34C

419. Item 61 would repeal sections 34A-34C of the AAT Act and substitute new section 34A.

420. Existing sections 34A and 34C deal with a range of matters, including the President's power to make directions about referring a proceeding to an alternative dispute resolution process and who is to conduct that process, as well as about the procedures to be followed generally in relation to alternative dispute resolution processes.

421. New section 34A would replicate key aspects of the policy in existing sections 34A and 34C in a single, simpler provision. In addition to there being no change to the powers of the President in relation to particular alternative dispute resolution processes, the obligation on parties to act in good faith in relation to the conduct of alternative dispute resolution processes would be preserved as would be the general requirement that only a member, officer of the Tribunal or a person engaged under section 34H may conduct an alternative dispute resolution process. The President's powers to give directions about the procedure to be followed in alternative dispute resolution processes would be within the scope of new section 18B.

422. Existing section 34B concerns the conduct of alternative dispute resolution in proceedings before the Small Taxation Claims Tribunal. Its repeal would be a consequential amendment in light of the repeal of Part IIIAA of the Act relating to the Small Taxation Claims Tribunal at Item 27. Alternative dispute resolution would continue to be available in small tax reviews under the rules generally applicable to other reviews to which Division 3 would apply.

Item 62 - At the end of section 34D

423. Item 62 would insert a new subsection (4) at the end of section 34D of the AAT Act.

424. Existing section 34D provides that if the parties to a proceeding reach agreement during the course of an alternative dispute resolution process as to the decision the Tribunal should make in respect of the whole proceeding (existing subsection 34D(2)) or part of the proceeding (existing subsection 34D(3)), the Tribunal may act in accordance with the parties' agreement, if it is satisfied that the terms of the agreement are within the powers of the Tribunal.

425. New subsection 34D(4) would permit the Tribunal to vary or revoke a decision made under section 34D, with the consent of the parties and where the Tribunal is satisfied that it is within its powers and otherwise appropriate to do so. This would rectify the omission that at present the Tribunal does not have an explicit legislative power to vary or revoke such decisions in appropriate circumstances. New subsection 34D(4) would enable the Tribunal to implement outcomes satisfactory to the parties where it is within the scope of its powers to do so.

Item 63 - Section 34G

426. Item 63 would repeal section 34G of the AAT Act, which would be replaced by new section 33A inserted at Item 59.

Item 66 - Section 35

427. Item 66 would repeal section 35 of the AAT Act and substitute new section 35.

428. Existing section 35 deals with the public nature of hearings in the Tribunal and the powers of the Tribunal to make orders that a hearing be heard in private and that certain information must not be published or otherwise disclosed. It does not apply in the Security Appeals Division (as it is currently known).

429. In relation to hearings, existing subsection 35(1) sets out the general principle that hearings in the Tribunal shall be in public, except where the Tribunal determines otherwise under section 35. Existing paragraph 35(2)(a) permits the Tribunal to order that a hearing shall take place in private where it is satisfied that this is appropriate, including by reason of the confidential nature of the evidence. The Tribunal may give directions in relation to who may be present in a private hearing. New subsection 35(2) would preserve the existing position in relation to hearings under subsection 35(1) and paragraph 35(2)(a). Amendments in Table Item 4 of new section 147 of the SSA Act inserted by Item 42 of Schedule 3, new section 95K of the CSRC Act inserted by Item 64 of Schedule 4, and new section 232 of the PPL Act inserted by Item 20 of Schedule 6 would ensure that new subsections 35(1) and (2) would not apply in the Social Services and Child Support Division, and instead the legislative requirement for private hearings in social services and child support matters would be retained.

430. Existing subsection 35(1A) provides that if a hearing is in public and a person participates by telephone or other means under existing section 35A, the Tribunal must take steps to ensure that the public nature of the hearing is preserved. This is unnecessary to state and is accordingly not reproduced.

431. Existing paragraphs 35(2)(aa), (b) and (c) contain broad powers for the Tribunal to make non-disclosure or non-publication orders, to restrict or prohibit the publication or disclosure of various matters related to a proceeding, for example the names of witnesses and the content of evidence and documents lodged with the Tribunal. New subsections 35(3)-(4) would empower the amalgamated Tribunal to make such orders. No change is intended to the current broad scope of the Tribunal's power. By modernising the drafting, new subsections 35(3) to (4) would set out more clearly and logically the types of matters that non-publication or non-disclosure directions could cover.

432. New subsection 35(3) would empower the Tribunal to prohibit or restrict the publication or other disclosure of information that: (a) tended to reveal the identity of a party, witness or other person related to a party or witness in a proceeding, or (b) otherwise concerned any of those persons. New subsection 35(4) would empower the Tribunal to prohibit or restrict the publication or other disclosure of information, including to some or all of the parties, of information relating to a proceeding that comprises evidence (or associated information) or information given to the Tribunal. New subsections 35(3)-(4) are modelled on section 37AF of the Federal Court of Australia Act 1976.

433. The powers in new subsections 35(3) to (4) would apply in the Social Services and Child Support Division, thereby allowing for the repeal of equivalent provisions in the SSA Act, CSRC Act, FAA Act, PPL Act, and SA Act. Certain provisions relating to non-disclosure orders would be retained in the CSRC Act given the particular sensitivity of that jurisdiction: see new section 98 and 98C of the CSRC Act at Item 64 of Schedule 4.

434. New subsection 35(5) would largely reproduce existing subsection 35(3), which governs the Tribunal's exercise of its discretion to make a direction under section 35 that hearings be held in private or that certain matters are not to be published or otherwise disclosed. The starting point for the Tribunal is the principle that hearings should be held in public, evidence given before the Tribunal and the contents of documents received in evidence should be made available to the public and all parties and the contents of documents lodged with the Tribunal should be made available to all the parties. However, the Tribunal must pay due regard to any reasons given to it as to why a private hearing is appropriate, or why a non-publication or non-disclosure direction should be made.

435. New subsection 35(5) would further clarify that the Tribunal is not required necessarily to seek the views of the parties before making a direction under section 35. While in many cases it is expected that the Tribunal would hear the parties on this point, it may be necessary for the Tribunal to make directions urgently in some cases. For example, it is common practice in the SSAT to make non-disclosure directions in child support matters at the very outset of a proceeding, in light of the sensitive information involved (for example, the detailed information about the current financial affairs of a party's former spouse or partner).

436. New subsection 35(6) would preserve the policy of existing subsection 35(1AA) that section 35 does not apply to a proceeding in the Security Division (as it would be known) to which section 39A applies.

Item 67 - Section 35AA

437. Item 67 would repeal existing section 35AA of the AAT Act and substitute new section 35AA. Existing section 35AA empowers the Tribunal to make non-publication or non-disclosure directions in a proceeding in the existing Security Appeals Division (as it is currently known). The drafting of new section 35AA would be aligned with new section 35 where relevant (inserted at Item 66). No change to the existing scope of section 35AA is intended.

Item 68 - Section 35A

438. Item 68 would repeal section 35A of the AAT Act, which deals with participation in reviews by means other than in person. Proposed new section 33A (inserted at Item 59) renders section 35A unnecessary.

Item 69 - Subsections 36(1AA), 36A(1AA), 36B(1AA), 36C(1AA) and 36D(1AA)

439. Item 69 would make consequential amendments to subsections 36(1AA), 36A(1AA), 36B(1AA), 36C(1AA) and 36D(1AA) of the AAT Act to update the references to the 'Security Appeals Division' to the 'Security Division', to reflect the name of the Division in the amalgamated Tribunal in new section 17A at Item 27. No other policy change is intended.

Item 70 - Subsection 36D(3)

440. Item 70 would amend subsection 36D(3) of the AAT Act to omit the word 'presidential'. This is not intended to change the effect of the provision. Subsection 36D(3) is concerned with ensuring that in certain reviews the Tribunal must be constituted by a judge of the Federal Court of Australia. As all judges are presidential members, the term 'presidential' serves no purpose in this provision.

Item 71 and 72 - Subsection 36D(5)

441. Items 71 and 72 would amend subsection 36D(5) of the AAT Act to remove the references to Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar and substitute with a reference to an officer of the Tribunal. This is consequential to the amendments proposed at Item 4 and 6 that would remove the definitions of District Registrar, Conference Registrar and Deputy Registrar.

Items 73 - 86 - Amendments to section 37

442. Items 73 to 86 would make various amendments to section 37 of the AAT Act. Existing section 37 is a core provision of the Act dealing with the process by which material documents-a statement of reasons for the decision under review and other relevant documents-are lodged with the Tribunal. In particular, section 37 sets out obligations on decision-makers to lodge documents, the process by which these documents are provided to other parties, and the circumstances in which documents are not required to be lodged. Key amendments include:

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amendments to minimise the administrative burden on decision-makers in relation to the provision of documents, including by reducing the number of copies that must be provided initially to the Tribunal

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amendments to provide greater flexibility to the Tribunal to use practice directions in appropriate circumstances to specify the types of documents it requires for the purposes of particular classes of review

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amendments to remove references to parts of a document, as the definition of document in section 2B of the Acts Interpretation Act is sufficiently broad to ensure that parts of documents would continue to be captured under section 37, and

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amendments to establish a process for the provision of documents on second reviews.

443. Amended section 37 would apply across the amalgamated Tribunal, with the exception of the Migration and Refugee Division, in respect of which the existing procedures in the Migration Act would continue to govern the provision of documents. Provisions in the social services legislation dealing with the provision of documents to the SSAT would generally be repealed: see subsections 157(3)-(5) of the SSA Act, subsections 232(3)-(6) PPL Act, subsections 119(3)-(5) of the FAA Act and subsections 95(3)-(6) and sections 95 and 97 of the CSRC Act. However, in relation to reviews in the Social Services and Child Support Division, the Acts conferring jurisdiction on the Tribunal would contain one additional power to obtain documents on an expedited basis (see, for example, new subsection 148(1) of the SSA Act which would be inserted by Item 42 of Schedule 3). The key change in practice for users of the SSAT in transitioning to the rules under section 37 would be that decision-makers would be required to provide copies of documents lodged with the Tribunal to other parties. There is no requirement under existing SSAT rules (other than for child support or paid parental leave matters) for the decision-maker (or the SSAT) to do so but it is the practice of the SSAT to give the parties a copy of the documents received from the decision-maker.

444. Item 87, which would amend section 38, is also related to the provision of documents.

Item 73 - Subsection 37(1AAA)

445. Item 73 would make consequential amendments to subsection 37(1AAA) of the AAT Act to update the references to the 'Security Appeals Division' to the 'Security Division', to reflect the name of the Division in the amalgamated Tribunal in section 17A at Item 27. No other policy change is intended.

Item 74 - Subsections 37(1) to (1AB)

446. Item 74 would repeal existing subsections 37(1), (1AA) and (1AB) of the AAT Act and substitute new subsections 37(1), (1AAB), (1AA) and (1AB).

447. Existing subsection 37(1) requires that within 28 days after receiving notice of the application for review, the person who has made a decision that is the subject of review by the Tribunal must lodge with the Tribunal two copies of a statement of reasons for the decision and every other document in that person's possession or control that is relevant to the review.

448. New subsection 37(1) would preserve the 28 day time frame for providing documents. It would reduce the number of copies of documents which a primary decision-maker must lodge with the Tribunal from two to one. In practice, one copy is generally sufficient for the Tribunal's purposes, and this change would reduce the regulatory burden on primary decision-makers. If further copies are necessary, the Tribunal would continue to have the power to request additional copies under amended subsection 37(1AA). Consequential amendments to provisions in other Acts conferring jurisdiction on the Tribunal to reflect this reduction in the number of copies of documents required are in Schedule 8. The arrangement whereby the decision-maker could give the SSAT documents electronically will continue.

449. New paragraph 37(1)(b) would provide that the obligation on decision-makers to provide any relevant documents to the Tribunal (apart from the statement of reasons) would be subject to practice directions of the President under new section 18B at Item 27. This would permit the President to define the types of documents which may be required in relation to particular classes of proceedings. Such directions would assist decision-makers by clarifying and, where appropriate, limiting their obligation to provide documents.

450. New subsection 37(1) would not apply to second review. Instead, new subsection 37(1AAB) would deal with the provision of documents on second review. It would require that the person who made the decision to provide, within 28 days after receiving notice of the application for second review, any relevant documents (other than a statement of reasons) that are required to be lodged by virtue of a practice direction of the President under new section 18B. This change would be appropriate because following amalgamation both first and second review would be undertaken by the same Tribunal.

451. Existing subsection 37(1AA) permits the Tribunal to direct a decision-maker who has lodged two copies of any document under subsection 37(1) to lodge with the Tribunal such additional copies as the Tribunal sees fit, within a timeframe specified by the Tribunal.

452. No policy change to the powers of the Tribunal in existing subsection 37(1AA) is intended. However, in light of the changes to subsection 37(1) to reduce the number of copies required from two to one, new subsection 37(1AA) would no longer refer to a person who has lodged two copies of a document under subsection 37(1). New subsection 18B(4) would also make clear that the President may giving directions relating to requirements to provide additional copies of documents in relation to classes of cases.

453. Existing subsection 37(1AB) allows the President to direct, in relation to a particular decision or class of decisions, that a decision-maker who is obliged to lodge a statement of reasons under existing subsection 37(1) may, in lieu of lodging the statement of reasons, lodge two copies of a document setting out the reasons for the decision that is the subject of the application for review.

454. New subsection 37(1AB) would change this provision to enable the Tribunal to exercise the power in relation to a particular proceedings only. New subsection 18B(4) would enable the President to continue to make directions of this kind in relation to classes of cases.

455. In light of the changes to subsection 37(1) to reduce the number of copies required from two to one, new subsection 37(1AB) would no longer refer to a person who has lodged two copies of a document under subsection 37(1).

Item 75 - Subsection 37(1AC)

456. Item 75 would amend subsection 37(1AC) of the AAT Act so that instead of referring to two copies of a document being lodged with the Tribunal, it would refer to one copy. This is a consequential amendment from the changes proposed to subsection 37(1) at Item 74. Subsection 37(1AC) permits the Tribunal to direct a decision-maker who has lodged a document in lieu of a statement of reasons under subsection 37(1AB) to lodge a statement of reasons under paragraph 37(1)(a).

Item 76 - Subsection 37(1AE)

457. Item 76 would repeal subsection 37(1AE) of the AAT Act and substitute new subsection 37(1AE).

458. Existing subsection 37(1AE) has the effect that the decision-maker is required to provide to the other parties to the proceeding a copy of the statement of reasons and other relevant documents lodged with the Tribunal within the same period as required for lodgement with the Tribunal.

459. New subsection 37(1AE) would preserve this obligation on the decision-maker unless the Tribunal directs otherwise. The ability of the Tribunal to exempt the decision-maker from the requirement to provide to the other parties a copy of the statement of reasons and other relevant documents would be the only policy change. This is designed to ensure that in circumstances where there are multiple parties, documents, or parts of documents, would not be provided to another party where this would be inappropriate for any reason. A key example would be in child support matters where there may be a history of violence between the parties, which may make it inappropriate to disclose documents containing details from which the whereabouts of a party may be ascertained. In the SSAT, other than in a child support or paid parental leave matter, there is no obligation on the decision-maker or the SSAT to provide a copy of documents other than the statement about the reviewable decision to the other parties. However, it is the SSAT's practice to do so. The amendment proposed to subsection 37(1AE) would permit the Tribunal to continue to exercise its judgment in relation to such confidentiality issues, as a limited exception to the general principle in subsection 37(1AE) that relevant documents should always be made available to the parties.

460. The effect of existing subsection 37(1AF) is to exempt decision-makers from the obligation in subsection 37(1AE) to provide copies of documents to other parties where the decision-maker applies for an order under section 35 in relation to those documents. The amendment to subsection 37(1AE) made by Item 76 would ensure that the Tribunal may act on its own initiative to prevent disclosures.

Item 77 - Paragraph 37(1AF)(a), Item 78-Subparagraph 37(1AF)(b)(i); Item 79-Subsection 37(1AF); Item 80- Subsection 37(1AG); Item 81- Subsection 37(1A); Item 82-Subsection 37(1A); Item 84-Subsection 37(1A); Item 85-Subsection 37(1B)

461. Items 77, 78, 79 and 80 would make consequential amendments to subsection 37(1AF) of the AAT Act. Items 81, 82 and 84 would make consequential amendments to subsection 37(1A) of the AAT Act. Item 85 would make consequential amendments to subsection 37(1B) of the AAT Act.

462. In each case these consequential amendments would flow from the other changes to section 37 and otherwise simplify the drafting of the Act. These items are not in themselves intended to change policy.

463. Item 77 would amend paragraph 37(1AF)(a) to:

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omit references to lodging two copies of a document, in light of the change proposed at Item 74 on subsection 37(1) to only require one copy of any document lodged,

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remove references to parts of a document as unnecessary due to the definition of document in section 2B of the Acts Interpretation Act, and

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insert a reference to subsection 37(1AAB) to ensure that subsections 37(1AF) and 37(1AG) apply in relation to second reviews in the same way as they apply under existing policy to all reviews conducted by the AAT.

464. Item 78 would repeal subparagraph 37(1AF)(b)(i) and substitute new subparagraph 37(1AF)(b)(i). New subparagraph 37(1AF)(b)(i) would:

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update the reference in existing subparagraph 37(1AF)(b)(i) to subsection 35(2), which provides the Tribunal's power to make non-disclosure orders, so that it refers to subsections 35(3) and (4), which would be the Tribunal's power to make non-disclosure orders as amended by Item 66, and

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omit reference to lodging two copies of a document, in light of the change proposed at Item 74 to subsection 37(1) to only require one copy of any document lodged.

465. Items 79 and 80 would amend subsection 37(1AF) and subsection 37(1AG) to:

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insert a reference to subsection 37(1AAB). This would have the effect that a person who is required to lodge a document in relation to a second review is exempt from the requirement to lodge a copy with the Tribunal under subsection 37(1AAB) and therefore to give a copy to each other party to the proceeding where they have applied for a non-disclosure direction under section 35 in relation to the document pending the determination of that application. This amendment would ensure that subsection 37(1AF) and 37(1AG) apply in relation to second reviews in the same way as they apply under existing policy to all reviews conducted by the AAT. Subsection 37(1AG) requires the decision-maker to comply with subsection 37(1AAB) in relation to any documents not the subject of the application for an order under section 35, and

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remove references to parts of a document, this being unnecessary due to the definition of 'document' in section 2B of the Acts Interpretation Act 1901.

466. Item 81 would amend subsection 37(1A) to insert a reference to subsection 37(1AAB). This would have the effect that the Tribunal may make a direction shortening the deadline for lodging documents in a second review. This amendment would ensure that subsection 37(1A) applies in relation to second reviews in the same way as it applies under existing policy to all reviews conducted by the AAT.

467. Items 82 and 84 would amend subsection 37(1A) to omit references to lodging two copies of a document, in light of the change proposed at Item 74 on subsection 37(1) to only require one copy of any document lodged.

468. Item 85 would amend subsection 37(1B) to insert a reference to subsection 37(1AAB). This would have the effect that where a person lodges an application for review that is not within the time limit specified in section 29, the time limit for the decision-maker to lodge documents in relation to a second review is adjusted to be the later of 28 days after the application, or 28 days after the decision to grant an extension of time. This amendment would ensure that subsection 37(1B) applies in relation to second reviews in the same way as it applies under existing policy to all reviews conducted by the AAT.

Item 83 - Subsection 37(1A) and Item 86- Subsection 37(1C)

469. Item 83 would amend subsection 37(1A) of the AAT Act, and Item 86 would amend subsection 37(1C) of the AAT Act, to omit the words 'as prescribed'. The removal of the requirement to prescribe procedures in Regulations is consistent with other amendments that would be made by the Bill. This change would not prevent such matters being prescribed in Regulations but would also permit the President in appropriate circumstances to specify how requests may be made in practice directions made under new section 18B. This would provide more flexibility to the Tribunal.

Item 87 - Section 38

470. Item 87 would repeal section 38 of the AAT Act, and substitute new sections 38 and 38AA.

New section 38 - Power of Tribunal to obtain additional statements

471. Existing subsection 38(1) of the AAT Act empowers the Tribunal to order a person who has lodged a statement of reasons for a decision under paragraph 37(1)(a) to lodge an additional statement containing further and better particulars, if the Tribunal considers that the statement lodged initially was inadequate. Subsection 38(2) provides that subsection (1) does not apply to a proceeding in the Security Appeals Division, as it is now known, to which section 39A applies.

472. New section 38 would not change existing policy, but the drafting would be simplified and updated to reflect the name change of the Security Division (see Item 27).

New section 38AA - Ongoing requirement for lodging material documents with Tribunal

473. New subsection 38AA(1) would impose an ongoing obligation on persons to whom subsections 37(1) or (1AAB) apply-that is, persons who have made a decision that is subject to first or second review-to lodge with the Tribunal a copy of any document that comes into their possession that is relevant to the review and has not been lodged previously, until such time as the Tribunal determines the review. Decision-makers would be required to lodge such documents as soon as practicable after obtaining possession of them. The obligation would be subject to any practice directions given by the President under new section 18B.

474. The continuous disclosure obligation in new section 38AA would reflect existing policy within the SSAT: see subsections 157(3)-(5) of the SSAT Act, subsections 232(3)-(6) of the PPL Act, subsections 119 (3)-(5) of the FAA Act and subsections 95(3)-(6) and sections 95 and 97 of the CSRC Act. The proper conduct of reviews is assisted by the Tribunal having all relevant information before it. The President's ability to make practice directions to define the scope of the continuous disclosure obligation would ensure that it is not unduly burdensome on decision-makers.

475. New subsection 38AA(2) would apply subsections 37(1AA), (1AE), (1AF) and (1AG) to the continuous disclosure obligation in the same way as those sections apply to the primary obligation on decision-makers to lodge material documents with the Tribunal. This would have the effect that the Tribunal could order that additional copies of documents provided under section 38AA be lodged; that unless the Tribunal orders otherwise, the decision-maker would be required to provide copies of documents lodged under section 38AA to other parties; and that the decision-maker could seek an exemption from the requirement to lodge documents under section 38AA where the document is the subject of an application for a non-disclosure direction under section 35.

Item 88 - Section 39 (heading)

476. Item 88 would repeal the heading to section 39 of the AAT Act and substitute a new heading that would reflect the scope of section 39 as amended by Item 89.

Item 89 - Subsection 39(2)

477. Item 89 would repeal subsection 39(2) of the AAT Act, and substitute new subsections 39(2)-(3).

478. Existing subsection 39(2) states that subsection 39(1)-which requires the Tribunal to ensure that each party to a proceeding has a reasonable opportunity to present their case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision and to make submissions in relation to those documents-does not apply to a proceeding in the Security Appeals Division (as it is currently known) to which section 39A applies.

479. New subsection 39(2) would continue to exclude the Security Division from the application of subsection 39(1). This reflects the sensitive nature of information that may form the basis of decisions reviewable in that Division.

480. New subsection 39(2) would also exclude the Social Services and Child Support Division from the application of subsection 39(1). New section 39AA (Item 90) would provide for the right of parties in that Division to make submissions, consistent with existing policy in the SSAT. New section 39AA would better promote the expeditious and informal nature of proceedings, which is a critical feature of the SSAT that should be preserved in the amalgamation.

481. New subsection 39(3) would provide that section 39 does not limit subsection 25(4A). This is intended as a statement that confirms existing policy. Existing subsection 25(4A) provides that the Tribunal may determine the scope of the review by limiting the questions of fact, evidence and issues it considers. This rule is central to the Tribunal's function of reaching the correct or preferable decision in a manner that is fast, just, economical, informal, and quick. It is the Tribunal that controls the conduct of the review and the parties are expected to present their case in a manner that is focussed on the real issues in dispute and does not lead to obfuscation or unwarranted delay. The Tribunal may also assist parties, especially the majority of parties who are not represented, to make submissions that are directed to the most relevant issues or information before the Tribunal.

Item 90 - After section 39

482. Item 90 would insert a new section 39AA that would deal with the manner in which parties to proceedings in the Social Services and Child Support Division may make submissions.

483. New section 39AA reflects existing policy in the SSAT on the making of submissions by parties: see subsection 161(1) and section 163A of the SSA Act, subsection 237(1) and section 240 of the PPL Act, subsection 123(2) and section 126A of the FAA Act, and subsection 103C(1) and section 103F of the CSRC Act.

484. New subsection 39AA(1) would entitle parties (other than agency parties) to make oral and/or written submissions to the Tribunal. This would ensure that parties have an opportunity to present their case.

485. New subsections 39AA(2)-(5) would deal with the making of submissions by agency parties. In general terms, the provisions would permit the Tribunal to exercise a degree of control over the participation by agency parties in reviews in the Social Services and Child Support Division, consistent with the existing powers of the SSAT:

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new subsection 39AA(2) would permit an agency party to make written submissions

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new subsections 39AA(3)-(4) would have the effect that the Tribunal could permit an agency party to make oral submissions, where this would assist the Tribunal, and

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new subsection 39AA(5) would permit the Tribunal to order an agency party to make written, oral or written and oral submissions, where this would assist the Tribunal. This power is helpful given that agencies typically do not participate in reviews before the SSAT.

486. New section 39AA is silent on the inspection of documents. The SSAT does not have explicit legislative rules concerning this matter but the SSAT gives parties a copy of any documents which are before it in the review. In practice, the operation of new subsection 37(1AE) (see Item 76) would provide parties with access to a copy of all documents before the Tribunal, subject to any restrictions necessary for confidentiality or other reasons.

Item 91 - Section 39A (heading)

487. Item 91 would repeal the heading to section 39A of the AAT Act and substitute a new heading which would clarify that section 39A relates to review of security assessments only. No change to the scope of the provision is intended.

Item 92 - Subsection 39A(4) and Item 93- Subsection 39A(17)

488. Item 92 would amend subsection 39A(4) and Item 93 would amend subsection 39A(17) of the AAT Act. These amendments would simplify the drafting by omitting the word 'presidential' as it serves no purpose in either subsection. No change to existing policy is intended.

Item 94 - Section 39B (heading)

489. Item 94 would repeal the heading to section 39B of the AAT Act and substitute a new heading which would clarify that section 39B relates to review of security assessments only. No change to the scope of the provision is intended.

Item 95 - Subsection 39B(1)

490. Item 95 would make consequential amendments to subsection 39B(1) of the AAT Act to update the references to the 'Security Appeals Division' to the 'Security Division', to reflect the names of the Divisions in the amalgamated Tribunal in section 17A at Item 27. No other policy change is intended.

Item 96 - Paragraph 39B(5)(b); Item 97- Subsection 39B(5) and Item 98-Subsection 39B(6) (heading); and Item 99-Paragraphs 39B(6)(a) and (b)

491. Item 96 would amend existing paragraph 39B(5)(b), Item 97 would amend subsection 39B(5), Item 98 would repeal the heading to subsection 39B(6) and substitute a new heading, and Item 99 would amend paragraphs 39B(6)(a) and (b) of the AAT Act to simplify the drafting by replacing references to 'presidential member' with 'presiding member'. No change to existing policy is intended.

Item 100 - Subsections 40(1A) to (1E)

492. Item 100 would repeal existing subsections 40(1A) to (1E) of the AAT Act, which deal with the power of the Tribunal to issue summonses. Item 103 would insert new sections 40A and 40B, which would deal with matters related to summonses and replace subsections 40(1A) to (1E).

Item 101 - Paragraphs 40(2)(b) and (c)

493. Item 101 would repeal existing paragraphs 40(2)(b) and (c) of the AAT Act, and substitute new paragraph 40(2)(b).

494. Existing paragraph 40(2)(b) provides that the Tribunal may administer an oath or affirmation to a person appearing before the Tribunal. New paragraph 40(2)(b) is in the same terms.

495. Existing paragraph 40(2)(c) provides that where a person appears before the Tribunal by telephone or other electronic means, the Tribunal may make appropriate arrangements to administer an oath or affirmation to a person. This is a minor administrative matter which would be handled routinely by Tribunal members. It is unnecessary for legislation to refer to it.

Item 102 - Subsections 40(3) to (6)

496. Item 102 would repeal subsections 40(3) to (6) of the AAT Act, and substitute new subsections 40(3) to (5).

497. Existing subsection 40(3) states that the oath or affirmation taken or made by a person is that the person's answers to questions will be true. This is unnecessary to state in legislation and can be dealt with by the Tribunal administratively.

498. Existing subsection 40(4) provides for persons summoned to appear before the Tribunal to be represented, with the permission of the Tribunal. A new provision to this effect would be incorporated into section 32, which deals with representation of other persons involved in proceedings (at Item 54).

499. Existing subsections 40(5)-(6) have the effect that the presiding member may authorise another person (whether or not a member of the Tribunal) to take evidence on oath or affirmation, within or outside Australia, subject to any limitations specified by the Tribunal. The power to have another person taking evidence on behalf of the Tribunal is useful, albeit rarely required in practice. New subsections 40(3) to (5) preserve this power, with simplifications in drafting that are not intended to change existing policy.

Item 103 - After section 40

500. Item 103 would insert new sections 40A and 40B into the AAT Act, to empower the Tribunal to issue summonses and deal with the inspection of documents produced under summons. The new sections are drafted in simpler terms, but would largely replicate the policy of existing subsections 40(1A)-(1E). Minor changes would streamline and codify existing procedures around summonses.

New section 40A - Power to summon person to give evidence or produce documents

501. Existing subsection 40(1A) of the AAT Act permits the member presiding at a hearing, the Registrar, a District Registrar or Deputy Registrar to summon a person to appear before the Tribunal to give evidence or produce documents or both at that hearing. Failure to comply with a summons would be an offence under new section 61 (see Item 135).

502. New subsection 40A(1) would provide that the President, an authorised member, or an officer of the Tribunal may summon a person to appear before the Tribunal to give evidence, to produce any document or thing, or to do both of those things on the day and at the time and place specified in the summons. No change to the scope of matters that may be the subject of a summons is intended. New subsection 40A(1) would give the Tribunal greater flexibility in relation to specifying the date, time and place for complying with the summons.

503. The issuing of summonses in routine or uncontroversial matters is a function typically undertaken in the AAT by a District Registrar or Deputy Registrar. In complex or sensitive matters, the request would be referred to a member. The minor policy change of vesting the summons power in the President or an authorised member rather than the presiding member would reflect that summons are generally issued before the hearing of a proceeding and would be consistent with the approach to the exercise of the Tribunal's powers before a hearing commences specified in subsection 19B(2). It is expected that members would generally be authorised for the purpose of this provision and therefore the power would be exercisable by the presiding member. The minor policy change of vesting the power in an 'officer of the Tribunal' reflects the removal of references in the Act to District Registrar and Deputy Registrars by Item 6 and the creation of a general category of officers of the Tribunal (see new section 24PA inserted by Item 38).

504. Existing section 40(1B) provides that summons may also be issued for the production of documents at directions hearings. It is unnecessary to replicate this provision, as new subsection 40A(1) provides sufficient scope to include directions hearings.

505. Summons power would not apply in the Social Services and Child Support Division: The note in new subsection 40A(1) would state that this section does not apply in relation to proceedings in the Social Services and Child Support Division, by virtue of provisions in Acts conferring jurisdiction on the amalgamated Tribunal in respect of applications for reviews in that Division. Relevant amendments to those other Acts are in Schedules 3-7). Instead of subsection 40A(1) applying, a comprehensive suite of alternative information gathering powers that are better suited to those reviews currently dealt with by the SSAT would be retained.

506. Power to refuse a request to issue a summons: Existing subsection 40(1C) has the effect that where a party requests that a summons be issued, only a presidential member, a senior member or an authorised member may refuse the request.

507. New subsection 40A(2) is drafted in simplified form, and would permit the President or an authorised member to refuse a request to issue a summons. This would permit the President to authorise members (including classes of members) to decide whether requests to issue summons should be refused.

508. Attendance by persons required to produce documents: Existing subsection 40(1E) provides that a person who is summoned to produce documents may produce them earlier than the specified date, and is not required to attend a hearing unless the Tribunal directs otherwise or the person is also required to give evidence. New subsection 40A(3) replicates existing subsection 40(1E).

New section 40B - Inspection of documents produced under summons

509. Existing subsection 40(1D) of the AAT Act has the effect that a party cannot inspect documents produced under a summons unless a presidential member, senior member or authorised member grants leave for this to occur. The Tribunal may refuse to grant parties leave to inspect documents produced under summons on a number of grounds, including relevance, legal professional privilege, or public interest immunity.

510. New subsection 40B(1) largely replicates existing policy, however, it would provide that leave to inspect documents produced under summons may be granted by the President, an authorised member or authorised officer. This would streamline the categories of persons who may grant leave and provide flexibility to the President to authorise members (or classes of members) and officers (or classes of officers) with appropriate expertise to handle these matters. The exercise of this power by officers would be consistent with other case management duties they perform.

511. New subsections 40B(2)-(3) would effect minor policy changes by establishing procedures for oversight by the Tribunal of the exercise of decisions by officers in relation to leave to inspect documents.

512. New subsection 40B(2) would provide that an authorised officer must not make a decision about granting leave, and must instead arrange for the President or an authorised member to do so, if either the officer considers that it is not appropriate for the officer to make the decision, or a party applies to the officer to have the decision made by a member of the Tribunal. This would ensure that decisions about which parties may see which documents are handled by members in complex or sensitive matters, or where parties have serious concerns about access to documents.

513. New subsection 40B(3) sets out a process for the Tribunal to reconsider decisions of authorised officers in relation to leave to inspect documents produced under summons. Paragraph 40B(3)(a) would provide that where an authorised officer makes a decision about whether or not to grant leave to a party to inspect documents produced under summons, a party to the proceeding may apply to the Tribunal, within 7 days or such further timeframe as the Tribunal allows, to reconsider the decision. Paragraph 40B(3)(b) would permit the Tribunal to reconsider the decision either on such an application from a party or on its own initiative. Paragraph 40B(3)(c) would permit the Tribunal to make such order as it thinks fit in relation to leave to inspect the document.

514. The proposed note in new section 40B would state that this section does not apply in relation to proceedings in the Social Services and Child Support Division. The exclusion of section 40B in relation to that Division follows from the position that section 40A would also not apply.

Item 104 - Subsection 41(2) and Item 106-Subsection 41(3)

515. Item 104 would amend existing subsection 41(2), and Item 106 would amend existing subsection 41(3) of the AAT Act, to omit the words 'as prescribed'.

516. The removal of the requirement to prescribe in Regulations the process for making requests under these subsections is consistent with other amendments in the Bill. This change would not prevent such matters being prescribed in Regulations but would also permit the President in appropriate circumstances to specify how requests may be made in practice directions made under new section 18B. This would provide more flexibility to the Tribunal.

Item 105 - At the end of subsection 41(2)

517. Item 105 would add a note to inform readers that existing section 41 of the AAT Act does not apply to proceedings in the Social Services and Child Support Division, as a result of provisions in Acts conferring jurisdiction on the amalgamated Tribunal in respect of applications for reviews in that Division. Amendments to those other Acts that would ensure that section 41 would not apply in that Division are in Table Item 4 of new section 147 of the SSA Act at Item 42 of Schedule 3, new section 95A of the CSRC Act at Item 64 of Schedule 4, new sections 112 and 131 of the FAA Act at Items 22 and 23 of Schedule 5, new section 225 of the PPL Act at Item 20 of Schedule 6, and new section 313 of the SA Act at Item 11 of Schedule 7.

518. Section 41 empowers the Tribunal to make orders staying or otherwise affecting the operation or implementation of the decision under review. The SSAT does not currently have the ability to make stay orders. The exclusion of section 41 would preserve the existing position. The power for the Tribunal to make stay orders is unnecessary in social services and child support first reviews, given that reviews are typically conducted quickly and there are alternate mechanisms in place to ensure that parties are not disadvantaged by the operation of the decision under review. Social security and family assistance recipients may receive payment of their entitlement pending review in some circumstances: see sections 145 of the SSA Act and 112 of the FAA Act. Further, in some cases where the Tribunal varies, or sets aside and substitutes, the decision under review, it may determine that its decision has effect such that an applicant may be entitled to back payment: see, for example, existing section 152 of the SSA Act and section 111B of the FAA Act.

519. Section 41 would continue to apply to second reviews of social services and child support matters, in accordance with existing policy in relation to the review of these matters by the AAT.

Item 107 - Section 42

520. Item 107 would repeal existing section 42 of the AAT Act and substitute new section 42.

521. Existing section 42 provides rules for how disagreements between members are resolved in the event they arise. Existing subsection 42(1) provides that if the Tribunal is constituted by 2 members, and they disagree about any matter arising in the proceeding, the view of the presiding member prevails. Similar rules are provided by subsection 356(2) of the Migration Act and subsection 172(2) of the SSA Act. New subsection 42(2) would preserve this rule.

522. Existing subsections 42(2)(3) deal with three member panels. The rules around resolving disagreements distinguish between questions of fact and questions of law. In disagreements over questions of fact, subsection 42(2) provides that if the majority agree, the view of the majority prevails, while otherwise the view of the presiding member prevails. In disagreements over questions of law, subsection 42(3) provides that the view of the presiding member prevails.

523. New subsection 42(1) would provide a single, simplified rule whereby a disagreement between members on a three member panel is to be settled according to the opinion of the majority of the members. This rule is appropriate for the amalgamated Tribunal. The distinction between fact and law is difficult to apply in practice, and does not recognise that cases may turn on mixed questions of fact and law, or questions of both fact and law. Further, the members constituting the Tribunal in a particular matter may not always have legal qualifications, particularly in the Migration and Refugee Division and the Social Services and Child Support Division. New subsection 42(1) would reflect the existing position in the MRT and the SSAT: see sections 356 Migration Act, 174 SSA Act, 138 FAA Act, 254 PPL Act, 103U CSRC Act. The RRT has no existing rule on resolving disagreements as it is always constituted by a single member.

524. New section 42 would apply across the amalgamated Tribunal: see new section 24Z at Item 39 concerning the application of Part IV to the Migration and Refugee Division generally.

Item 108 - After subsection 42A(1)

525. Item 108 would insert new subsection 42A(1AAA) into the AAT Act, to provide that the consent of the agency party to a proceeding in the Social Services and Child Support Division is not required for the purposes of subsection 42A(1). Subsection 42A(1) permits the Tribunal to dismiss an application without reviewing the decision where all of the parties consent.

526. New subsection 42A(1AAA) would preserve the existing position in relation to the dismissal of applications by consent in the SSAT, where there are legislative provisions to the effect that the consent of the Child Support Registrar, the Secretary, the Chief Executive Centrelink, or the Chief Executive Medicare (as the case may be) is not required in circumstances where the other party or parties consent to dismissal (see, for example, subsections 171(6) and 172(6) of the SSA Act). These provisions would be repealed in the social services law. New subsection 42A(1AAA) would promote the efficient resolution of applications in the Social Services and Child Support Division, where it is expected that, as with the SSAT at present, agency parties would not typically participate in proceedings.

Item 109 - After subsection 42A(1A)

527. Item 109 would insert new subsection 42A(1AA) into the AAT Act. Subsection 42A(1A) permits the applicant to notify the Tribunal in writing at any time that the application is discontinued or withdrawn.

528. New subsection 42A(1AA) would provide that if a proceeding is in the Social Services and Child Support Division, and is not a child support first review, the person who has made an application to the Tribunal may notify the Tribunal orally of the withdrawal or discontinuance. This would preserve the existing position in the SSAT that applicants in matters other than child support matters may notify the Tribunal orally or in writing that they do not wish to proceed with their application (see, for example, subsection 172(2) of the SSA Act). New subsection 42A(1AA) would require the person who receives the oral notification to make a written record of the day of its receipt, as is done now in the SSAT.

Item 110 - Subsection 42A(1B)

529. Item 110 would make a consequential amendment to subsection 42A(1B) of the AAT Act, in light of the proposed insertion of new subsection 42A(1AA) at Item 109. Existing subsection 42A(1B) has the effect that if an applicant notifies the Tribunal under subsection 42A(1A) that they wish to withdraw or discontinue the application, the Tribunal is taken to have dismissed the application. New subsection 42A(1B) would refer to notification provided under both subsections 42A(1A) and (1AA). This amendment is necessary to ensure that oral notifications are effective to dispose of the proceeding.

Item 111 - Subsections 42A(3) to (4)

530. Item 111 would repeal existing subsections 42A(3)-(4) of the AAT Act, and substitute a new subsection (4).

531. Existing subsections 42A(3) and (3A) provide that, for the purposes of subsection 42A(2) (dismissal where a party fails to appear) where a person or the person's representative participates at a directions hearing or hearing (existing subsection 42A(3)) or an alternative dispute resolution process (existing subsection 42A(3A)), by a means specified in sections 34A or 34G (for example, by telephone), then they are taken to appear at the hearing or process.

532. Appearance by telephone or video conferencing is an established and uncontroversial process. Existing provisions are no longer necessary and can be repealed. New section 33A (inserted by Item 59) would continue to clarify that a person may participate in a hearing by telephone or other electronic means.

533. Existing subsection 42A(4) provides for dismissal of an application where the applicant cannot demonstrate that the decision that is being challenged is reviewable.

534. Item 111 would repeal existing subsection 42A(4) and substitute a new, simpler provision. New subsection 42A(4) would provide that the Tribunal may dismiss an application without reviewing the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal. The requirement of existing subsection 42A(4) that the Tribunal give the applicant an opportunity to demonstrate that the decision is reviewable is a requirement of procedural fairness and need not be stated in legislation.

Item 112 - Subsection 42A(6)

535. Item 112 would repeal existing subsection 42A(6) of the AAT Act.

536. Existing subsection 42A(6) provides that if the Tribunal dismisses an application, or an application is dismissed on its behalf, the proceeding to which the application relates is taken to be concluded (unless the application is reinstated under existing subsection 42A(9) or (10).

537. This provision is unnecessary to state explicitly and can be removed to simplify the section.

Item 113 - Subsection 42A(7)

538. Item 113 would amend existing subsection 42A(7) of the AAT Act by omitting the words 'conference, mediation' and substituting the phrase 'alternative dispute resolution process', which is defined in existing subsection 3(1) to include both conferences and mediation (as well as other forms of alternative dispute resolution).

539. Existing subsection 42A(7) provides that, before exercising its powers under subsection 42A(2) to dismiss an application because a party failed to appear, the Tribunal must be satisfied that appropriate notice was given, to the person who failed to appear, of the time and place of the directions hearing, conference, mediation or hearing.

540. Item 113 would amend this provision to replace the reference to conference or mediation with a reference to an alternative dispute resolution process. This reflects the approach of new section 34A that would be inserted by Item 61, which does not differentiate between these forms of alternative dispute resolution.

Items 114 - Subsection 42A(8), and Item 115-After subsection 42A(8)

541. Items 114 and 115 would amend and restructure existing subsection 42A(8) of the AAT Act.

542. Existing subsection 42A(8) provides that, where the Tribunal has dismissed an application under existing subsection 42A(2) (other than an application relating to a proceeding in respect of which a stay order has been made under subsection 41(2)), the person who made the application may apply within 28 days of notification of the dismissal for the application to be reinstated.

543. Item 114 would amend existing subsection 42A(8) to make two key changes:

•

The reference to the person who made the application is changed to a party to the proceeding. In matters with two citizen parties (eg child support), the applicant may decide not to pursue an application but the other party may wish to proceed. Accordingly, it is proposed that subsection 42A(8) be amended to refer to a 'party' to allow the non-applicant party to request reinstatement.

•

The time to apply would be provided in new subsection 42A(8A).

544. Item 115 would insert a new subsection 42A(8A) to provide that an application for reinstatement must be made within:

•

28 days after the person making the application for reinstatement receives notification that the application has been dismissed, or

•

if the person requests an extension, such longer period as the Tribunal, in special circumstances, allows.

545. New paragraph 42A(8A)(a) would reflect the policy of existing subsection 42A(8). New paragraph 42A(8A)(b) is intended to preserve the policy of provisions in the child support legislation (subsections 100(3) and 100A(3) of the CSRC Act) and of social services legislation (such as subsections 171(3), 172(4) of the SSA Act; 135(3), 136(4) of the FAA Act).

Item 116 - Section 42B

546. Item 116 would repeal existing section 42B of the AAT Act and substitute a new section 42B.

547. Existing section 42B empowers the Tribunal to take action at any stage of a proceeding where it determines that an application is frivolous or vexatious to:

•

dismiss the application, and

•

if appropriate, on the application of a party to the proceeding, direct that the person who made the application must not make another application to the Tribunal of a kind specified in the direction without leave.

548. The SSAT has a similar dismissal power under existing paragraph 171(1)(b) and subsection 171(2) of the SSA Act and elsewhere in the social services legislation.

549. New section 42B would maintain this policy and provide for additional circumstances in which the Tribunal may dismiss an application for review.

550. New subsection 42B(1) would provide that the Tribunal may dismiss an application for review of a decision at any stage of a proceeding, if the Tribunal is satisfied that the decision is:

•

frivolous, vexatious, misconceived or lacking in substance

•

has no reasonable prospect of success, or

•

is otherwise an abuse of process of the Tribunal.

551. This amendment would modernise the language of existing paragraph 42B(1)(a) and clarify the policy surrounding the grounds for dismissal. The proposed new grounds are similar to dismissal powers available to other bodies. For example Rule 26.01 of the Federal Court Rules 2011 allow for summary judgment on matters which have no reasonable prospect of success, or are an abuse of process. Similarly, section 47 of the Queensland Civil and Administrative Tribunal Act 2009 provides for dismissal of applications where the application is frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process. These powers would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.

552. New subsection 42B(2) would provide that, where the Tribunal dismisses an application under new subsection 42B(1) it may on the application of a party to the proceeding, give a written direction that the person who made the application must not make another application to the Tribunal of a kind specified in the direction without leave. This reproduces the policy of existing paragraph 42B(1)(b).

553. New subsection 42B(3) would provide that a direction under subsection 42B(2) has effect despite any other provision of the AAT Act or any other Act. This reproduces the policy of existing subsection 42B(2).

554. Existing subsection 42B(3), which provides that the Tribunal may discharge or vary such a direction, has not been reproduced as the ability of the Tribunal to vary or revoke its direction is made clear by subsection 33(3) of the Acts Interpretation Act.

Item 117 - At the end of section 42C

555. Item 117 would add new subsections 42C(4), (5) and (6) at the end of existing section 42C of the AAT Act.

556. Existing section 42C provides that if the parties to a proceeding reach agreement as to the decision the Tribunal should make in respect of the whole proceeding (existing subsection 42C(2)) or part of the proceeding (existing subsection 42C(3)), the Tribunal may act in accordance with the parties' agreement, if it is satisfied that the terms of the agreement are within the powers of the Tribunal.

557. Item 117 would add new provisions to the end of existing section 42C to:

•

provide additional safeguards around such decisions in relation to child support matters, based on existing child support law

•

provide for variation or revocation of such decisions, and

•

provide that variation or revocation of such decisions is not possible for child support first review.

558. New subsection 42C(4) would provide that the Tribunal must not make a decision in terms agreed by the parties in relation to a departure from administrative assessment of child support in accordance with Part 6A of the CSA Act, unless it is satisfied that it is just and equitable and otherwise proper to do so, having regard to the matters in subsections 117(4) and (5) of the CSA Act. Those subsections provide a wide range of factors relating to the best interests of the child and the financial circumstances of the parents. This preserves the policy of existing subsection 103W(4) of the CSRC Act.

559. New subsection 42C(5) would insert a new provision enabling the Tribunal to vary or revoke a decision made under subsections 42C(2) or (3) where the parties reach agreement to the variation or revocation, the agreement is reduced to writing, the Tribunal considers it appropriate, and the decision would be within the Tribunal's powers. At present, the Tribunal does not have an explicit legislative power to vary or revoke such decisions in appropriate circumstances. New subsection 42C(5) would enable the Tribunal to implement outcomes satisfactory to the parties where it is within its powers to do so.

560. New subsection 42C(6) would provide that new subsection 42C(5) does not apply to a decision on child support first review. This preserves the policy of existing section 103W of the CSRC Act.

Item 118 - Subsection 42D(1)

561. Item 118 would amend existing subsection 42D(1) of the AAT Act to insert the words 'other than a proceeding in the Social Services and Child Support Division' after 'review of a decision'.

562. Existing subsection 42D(1) provides that any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

563. The amendment made by Item 118 would prevent a member in the Social Services and Child Support Division exercising this power to remit a matter for reconsideration. Use of this power in the social services jurisdiction would add delay to the resolution of matters and is undesirable given the particular need for efficiency and timeliness in the review of decisions relating to social services.

Item 119 - After subsection 43(5)

564. Item 119 would insert provisions at the end of existing section 43(5) of the AAT Act to provide that the Tribunal must notify parties of further review rights.

565. The AAT Act does not currently require the Tribunal to notify parties of their appeal rights under section 44 of the AAT Act, although this is done in practice. However, the SSAT must provide a written notification to the non-agency parties of any appeal rights to the AAT: see, for example, section 177 of the SSA Act, section 141 of the FAA Act, and section 257 of the PPL Act. In addition, under section 103X of the CSRC Act, the SSAT must provide a written notification to non-agency parties of their right to appeal to a court on a question of law, and in relation to care percentage decisions, of their right to apply to the AAT for second review. Under the social services legislation, failure to comply with these notification requirements does not invalidate the decision.

566. New subsection 43(5) would preserve this policy from the social services legislation by requiring the Tribunal to notify parties of:

•

their right to apply for second review of a decision (where applicable), and

•

their right to appeal to a court on a question of law.

567. New subsection 43(5B) would provide that new subsection 43(5B) does not apply to an agency party in the Social Services and Child Support Division. Agency parties are regular participants in the system, and do not need to be notified of these rights.

568. New subsection 43(5C) would provide that a failure to comply with new subsection 43(5A) in relation to a decision of the Tribunal does not affect the validity of the decision. This preserves the current policy of the social services legislation.

Item 120 - Subsection 43(4)

569. Item 120 would omit references to District and Deputy Registrars from existing subsection 43(4) of the AAT Act.

570. Existing subsection 43(4) provides that a document purporting to be a copy of a Tribunal decision or order, and certified by the Registrar, a District Registrar or a Deputy Registrar to be a true copy of the decision or order is, in any proceeding, prima facie evidence of the decision or order.

571. Item 120 would change this rule to only empower the Registrar to certify decisions or orders of the Tribunal, by removing references to Deputy and District Registrars. However, under the delegation power in new subsection 10A(3) that would be inserted by Item 79M, the Registrar may delegate any of his or her powers to an officer of the Tribunal or a member of staff. Accordingly, this amendment would not change policy.

Item 121 - Section 43AAA (heading)

572. Item 121 would repeal the heading to section 43AAA of the AAT Act and substitutes a new heading, to reflect the change of name of the Security Appeals Division to Security Division (see new section 17A inserted by Item 27).

Item 122 - Subsection 43AAA(1)

573. Item 122 would amend existing subsection 43AAA(1) of the AAT Act to omit the words 'review conducted by the Security Appeals Division' and substitute the words 'review in the Security Division'.

574. This amendment to existing subsection 43AAA(1) reflects the change of name of the Security Appeals Division to Security Division (see new section 17A inserted by Item 27), and simplifies the drafting of the provision. It is not intended to change policy.

Item 123 - Section 43A

575. Item 123 would repeal existing section 43A of the AAT Act.

576. Existing section 43A provides that the Tribunal may return documents to the persons who provided them to the Tribunal (including where documents are returned to the Tribunal by a court), at the expiry of the applicable appeal period or when the appeal (if brought) is determined.

577. Arrangements for the return of documents can be dealt with in the context of the Tribunal's general record-keeping policies and procedures, and by practice directions if necessary.

Item 124 - After section 43B

578. Item 124 would insert new section 43C to provide that Part IVA of the AAT Act does not apply to applications or proceedings relating to the review of certain migration decisions, including privative clause decisions, purported privative clause decisions or AAT Act migration decisions as defined by the Migration Act.

579. Existing Part IVA of the AAT Act provides a clear framework for how a person can seek judicial review of AAT decisions.

580. Currently, judicial review of migration decisions is provided by the Migration Act. New section 43C would provide that Part IVA of the AAT Act does not apply to these migration proceedings for which this alternative judicial review framework exists. This Item would not change the existing policy.

Item 125 - At the end of subsection 44(1)

581. Item 125 would amend section 44 of the AAT Act by inserting notes at the end of existing subsection 44(1).

582. Existing subsection 44(1) provides that a party to a proceeding before the Tribunal may appeal on a question of law to the Federal Court of Australia from any decision of the Tribunal in that proceeding.

583. New note 1 would clarify that subsection 44(1), as a provision in Part IVA of the AAT Act, does not apply to certain migration proceedings as set out in new section 43C as inserted by Item 124.

584. New note 2 would clarify that a party to a child support first review may in certain circumstances appeal to the Federal Circuit Court as well as to the Federal Court of Australia, in accordance with new section 44AAA as inserted by Item 129.

Item 126 - After subsection 44(1)

585. Item 126 would amend existing section 44 of the AAT Act by inserting a new subsection 44(1A).

586. Existing subsection 44(1) provides that a party to a proceeding before the Tribunal may appeal on a question of law to the Federal Court of Australia from any decision of the Tribunal in that proceeding.

587. Social services legislation does not generally provide for appeals on a question of law from decisions of the SSAT. Child support decisions and certain paid parental leave decisions are an exception to this rule.

588. New subsection 44(1A) would provide that the right to judicial review of a Tribunal decision under subsection 44(1) does not apply in relation to a proceeding in the Social Services and Child Support Division, with the exception of child support decisions which are referred to in section 89 of the CSRC Act and reviewable employer decisions within the meaning of the PPL Act. This does not preclude judicial review of other social services decisions. However, in line with existing policy, an appeal on a question of law would only be provided for in the AAT Act for second review of these decisions.

Item 127 - At the end of subsection 44(2)

589. Item 127 would amend section 44 of the AAT Act by adding a note at the end of subsection 44(2).

590. Under existing subsection 27(1) a person whose interests are affected by a decision may apply to the Tribunal for review of that decision. Under existing subsection 30(1A), where an application for review of a decision has been made, any other person whose interests are affected by a decision may apply to be made a party. Existing section 31 of the AAT Act empowers the Tribunal to determine whether the interests of a person are affected for the purposes of these provisions. If the Tribunal decides that a person's interests are not affected, the result is that they cannot apply for review, or be made a party to a review.

591. Existing subsection 44(2) provides that a person may appeal to the Federal Court of Australia to review a decision of the Tribunal that determines that the interests of a person are not affected by a decision in these circumstances.

592. The new note would clarify that subsection 44(2), as a provision in Part IVA of the AAT Act, does not apply to certain migration proceedings as set out in new section 43C as inserted by Item 124.

Item 128 - Subparagraph 44(3)(b)(i)

593. Item 128 would omit the words 'presidential member' in existing subparagraph 44(3)(b)(i) of the AAT Act and substitute the words 'a Deputy President who is not a Judge'.

594. Existing subsection 44(3) sets out the circumstances in which an appeal on a question of law under existing subsection 44(1) (arising from a proceeding) or an appeal about standing under existing subsection 44(2) (arising from an application or proceeding) before the Tribunal may or must be heard by a Full Court of the Federal Court.

595. The subsection provides that such appeals:

•

may be heard by a Full Court of the Federal Court (existing paragraph 44(3)(a))

•

must be heard by a Full Court of the Federal Court where the Tribunal was constituted by at least one presidential member and, after consultation between the President of the Tribunal and the Chief Justice of the Federal Court of Australia, the Chief Justice considers it appropriate that the appeal be heard by a Full Court, (existing paragraph 44(3)(b), and

•

must be heard by a Full Court of the Federal Court where the Tribunal was constituted by at least one member who is a Judge (existing paragraph 44(3)(c).

596. The amendment made by Item 128 clarifies existing paragraph 44(3)(b) by replacing the reference to a presidential member with a reference to a Deputy President who is not a judge. The rule in relation to decisions involving the President and Deputy Presidents who are Judges is provided by paragraph 44(3)(c). The only presidential members who are not Judges are non-judicial Deputy Presidents. This amendment would not change existing policy.

Item 129 - After section 44

597. Item 129 would insert new section 44AAA into Part IVA of the AAT Act to provide for appeals on a question of law in relation to decisions in child support first reviews to be made to the Federal Circuit Court.

598. This Item maintains an avenue of appeal to the Federal Circuit Court available under the CSRC Act. The Federal Circuit Court is currently the most frequently used avenue of appeal for these matters, and has developed expertise in dealing with them. Under section 110B of the CSRC Act, a party to a review by the SSAT may appeal on a question of law from a decision of the SSAT under section 103S of that Act to affirm, vary or set aside a decision of the Child Support Registrar.

599. New subsection 44AAA(1) would provide that a party to a proceeding in a child support first review may appeal to the Federal Circuit Court on a question of law from any decision of the Tribunal in that proceeding, if the Tribunal as constituted for the proceeding does not include a presidential member (ie a Deputy President or the President). This jurisdiction for the Federal Circuit Court is concurrent with the jurisdiction of the Federal Court under subsection 44(1). Unless a decision was made by the Tribunal involving a presidential member, parties may choose whether to file in the Federal Court or the Federal Circuit Court. Where an appeal is lodged in the Federal Circuit Court, an appeal would lie to the Federal Court of Australia from the decision of the Federal Circuit Court under section 24 of the Federal Court of Australia Act.

600. New subsection 44AAA(2) would provide that in an appeal under subsection 44AAA(1), certain provisions of sections 44, 44A and 46 apply as though references to the Federal Court of Australia were references to the Federal Circuit Court. This provides rules regarding how and when an appeal may be instituted, the jurisdiction and powers of the court in relation to an appeal, the constitution of the Tribunal if the court remits a case to be heard and determined again by the Tribunal, stay orders, and sending of documents to the court.

601. New subsection 44AAA(3) would have the effect that for an appeal to the Federal Circuit Court under new subsection 44AAA(1), the rules made under the Federal Circuit Court Act 1999 apply rather than rules made under the Federal Court of Australia Act.

602. New subsection 44AAA(4) would clarify that new subsection 44AAA(1) would not affect the operation of existing subsection 44(1) in relation to a child support first review proceeding. As a result, except where a decision by the Tribunal involved a presidential member, parties would be able to choose between filing in the Federal Court or the Federal Circuit Court.

Item 130 - Subsections 45(1) and (2)

603. Item 130 would repeal existing subsections 45(1) and (2) of the AAT Act and substitute new subsections (1), (2) and (2A).

604. Existing subsection 45(1) provides that the Tribunal may, on its own motion or at the request of a party, refer a question of law arising in a proceeding to the Federal Court. In doing so, the Tribunal must have the agreement of the President. Additionally, if the proceeding is before the Small Taxation Claims Tribunal, the interests of the applicant seeking review of the relevant tax decision must be taken into account prior to the referral.

605. New subsection 45(1) would simplify the drafting of the provision and ensure its consistency with other amendments to the AAT Act. It would remove references to the Small Taxation Claims Tribunal as a result of the amendments made by Item 80. It would also insert a note to clarify that subsection 45(1), as a provision in Part IVA of the AAT Act, does not apply to certain migration proceedings as set out in new section 43C as inserted by Item 124.

606. Existing subsection 45(2) provides that the Federal Court must be constituted as a Full Court to determine a question of law referred to it under existing subsection 45(1). Item 130 would separate existing subsection 45(2) into new subsections 45(2) and 45(2A).

607. New subsection 45(2) would confer jurisdiction on the Federal Court of Australia to determine a question of law referred to it under section 45 of the AAT Act. This does not change current policy.

608. New subsection 45(2A) would provide that if, after consultation with the President of the Tribunal, the Chief Justice of the Federal Court decides that it would be appropriate for the application to be heard by a Full Court, the jurisdiction is to be exercised by the Court constituted as a Full Court. This would change policy to allow references on questions of law to be heard by the Federal Court sitting either as a single judge or as a Full Court. This amendment would provide greater flexibility to both the Tribunal and the Federal Court of Australia and would provide a more expeditious mechanism for the Federal Court of Australia to hear and decide less complex questions of law.

Item 131 - Paragraph 46(1)(a)

609. Item 131 would insert the words 'and are relevant to the appeal or reference' after the words 'appeal or reference relates' in existing paragraph 46(1)(a) of the AAT Act.

610. Existing paragraph 46(1)(a) provides that, when an appeal has been instituted in the Federal Court of Australia, the Tribunal shall cause all documents that were before the Tribunal in connection with the proceedings to which the appeal or reference relates to be sent to the Court.

611. The amendments would add a relevance requirement to the provision, to make it clearer that the Tribunal is only required to provide relevant documents to the Court.

Item 132 - Section 59A

612. Item 132 would repeal existing section 59A of the AAT Act, and substitute new sections 59A and 59B.

New section 59A - Authorised members

613. Existing section 59A allows the President to authorise a particular member to be an authorised member for the purpose of one or more specified provisions of the Act. The authorisations can be general or limited to, for example, a particular reviewable decision or decisions and reviewable decisions included in a particular class or classes of reviewable decision.

614. New section 59A would preserve the substance of the existing provision with simplified drafting.

615. New subsection 59A(1) would reproduce the President's power to authorise a member, in writing, for the purposes of one or more specified provisions of the AAT Act or another enactment. This extends policy to allow the President to authorise a member for the purposes of an Act other than the AAT Act.

616. New subsection 59A(2) would provide a general rule allowing the President to make general or limited authorisations. It is intended to enable the President to limit authorisations in any of the ways possible under existing subsection 59A(2).

617. Existing subsection 59A(3) is not reproduced as the power to revoke an instrument made under subsection 59A(1) should be interpreted as including a power to revoke the power under subsection 33(3) of the Acts Interpretation Act.

New section 59B - Authorised officers

618. New section 59B preserves and expands the President's power under the AAT Act to authorise certain officers of the Tribunal to undertake specified actions under the Act with simplified drafting and greater flexibility.

619. Existing subsection 33(4) empowers the President to authorise a Conference Registrar to give directions under paragraph 33(2)(a) with respect to a proceeding before the hearing of the proceeding commences.

620. New subsection 59B(1) would provide a general power that allows the President to authorise officers for the purposes of particular provisions that refer to authorised officers, giving the Tribunal greater flexibility in its operations. The following provisions would confer powers on authorised officers:

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new section 40B (leave to inspect documents produced under summons) (see Item 103), and

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paragraph 33(2)(a) (pre-hearing directions) (as amended by Item 56).

621. References to 'Conference Registrar' would no longer appear in the Act and such persons would be officers of the Tribunal for the purposes of the Act.

622. New subsection 59B(2) would provide a general rule allowing the President to make general or limited authorisations.

Item 133 - Section 60 (heading)

623. Item 133 would repeal the heading of existing section 60 of the AAT Act (Protection of members, alternative dispute resolution practitioners, Registrars, District Registrars, Conference Registrars, barristers and witnesses), and substitute a new heading (Protection of members, alternative dispute resolution practitioners, officers of the Tribunal, barristers and witnesses).

624. The omitted terms are no longer necessary as references to specific types of Registrar would be replaced by the concept of 'officer of the Tribunal' by the amendments in Item 36 of the Bill.

Item 134 - Subsections 60(1B) and (1C)

625. Item 134 would repeal existing subsections 60(1B) and (1C) of the AAT Act, and substitute a new subsection 60(1B).

626. Existing subsection 60(1B) provides a Registrar, a District Registrar or a Deputy Registrar, in the performance of their duties, the same protection and immunity as a Justice of the High Court. These duties include:

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section 40, in respect of procedural powers of the Tribunal, including the power to summon a person to give evidence or produce documents, and

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section 69A, in respect of taxing costs.

627. Existing subsection 60(1C) provides the same protection and immunity in relation to Conference Registrars when giving directions with respect to a proceeding before the hearing of the proceeding commences under existing paragraph 33(2)(a).

628. New subsection 60(1B) would provide an officer of the Tribunal the same protection and immunity as a Justice of the High Court in the performance of the following duties:

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subsection 29(9) (giving, or requiring the giving of, notice of an application for extension of time)

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subsection 29AC(2) (giving, or requiring the giving of, notice of an application for review of a decision to a person whose interests may be affected by the decision)

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paragraph 33(2)(a) (giving directions with respect to a proceeding before the hearing of the proceeding commences)

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section 40 (procedural powers of the Tribunal, and include issuing of summons and administering an oath or affirmation)

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section 40A (power to summon a person to give evidence or produce documents)

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section 40B (power to give leave to a party to inspect a document or thing produced under a summons), and

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section 69A (procedure for taxing costs).

629. This amendment would reflect the replacement of references to specific types of Registrar with the concept of 'officers of the Tribunal'. New subsection 60(1B) would instead provide these protections and immunities to an officer of the Tribunal in relation to the duties they may perform under the Act.

Item 135 - Section 61

630. Item 135 would repeal existing section 61 of the AAT Act, and substitute a new section 61.

631. Existing subsection 61(1) makes it an offence to fail to comply with a summons to appear as a witness, punishable by a penalty of 30 penalty units or imprisonment for 6 months (or both). Subsection 61(2) provides a defence of reasonable excuse. Subsection 61(3) provides an offence for failure to comply with a summons to produce a book, document or thing, punishable by a penalty of 30 penalty units or imprisonment for 6 months (or both). Subsection 61(4) provides a defence of reasonable excuse.

632. New subsection 61(1) would replace both offences with an offence of failing to comply with a summons issued by the Tribunal pursuant to section 40A, punishable by imprisonment for 12 months, 60 penalty units (or both). Subsection 61(2) would provide a defence where complying with the summons might tend to incriminate the person.

633. The new provision would preserve the substance of both existing offences with simplified drafting, and would mirror offence provisions that would apply in the Migration Act in relation to the Migration and Refugee Division (see Item 101 of Schedule 2 to the Bill, which inserts new sections 432 and 433 into the Migration Act).

634. Key changes in this provisions are removal of the defence of reasonable excuse, inserting a specific defence of self-incrimination, and changes to the penalty.

635. The defence of reasonable excuse would be removed because the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers advises against the use of reasonable excuse defences, noting that such defences are vague and therefore difficult to rely on. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

636. The privilege against self-incrimination applies at common law. However, for the avoidance of doubt new subsection 61(2) would insert a specific defence of self-incrimination to the offence in new subsection 61(1). This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the powers to compel information that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to provide information or produce documents that may incriminate others.

637. The note to subsection 61(2) would state that a defendant bears an evidential burden in relation to the matter in subsection 61(2)-see subsection 13.3(3) of the Criminal Code Act 1995. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is compelled to provide information or produce a document will be best placed to know whether complying might tend to incriminate the person.

638. With respect to legal professional privilege, the privilege applies at common law and has an equivalent in the Evidence Act 1995. Legal professional privilege is intended to be available.

639. The penalty would be raised from 30 penalty units or 6 months imprisonment (or both) to 12 months imprisonment or 60 penalty units (or both). This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Items 136 - Subsection 62(1) and Item 137-Subsection 62(1) (penalty)

640. Item 136 would omit the words 'is guilty of' and substitute the words 'commits' in subsection 62(1) of the AAT Act.

641. Existing subsection 62(1) makes it an offence for a person who appears as a witness before the Tribunal, and is required to take an oath or make an affirmation, to fail to comply with this requirement.

642. The amendment in Item 135 would simplify and modernise the provision without changing policy.

643. Item 137 would repeal the existing penalty for the offence in subsection 62(1) of 30 penalty units or imprisonment for 6 months (or both) and substitute a new penalty of imprisonment for 12 months or 60 penalty units, or both.

644. This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Item 138 - Subsection 62(2)

645. Item 137 would repeal existing subsection 62(2) of the AAT Act, which provides a defence of reasonable excuse to the offence in subsection 62(1).

646. The defence of reasonable excuse would be removed because the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers advises against the use of reasonable excuse defences, noting that such defences are vague and therefore difficult to rely on. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

Items 139 - Subsection 62(3) and Item 140-Subsection 62(3) (penalty)

647. Item 139 would omit the words 'is guilty of' and substitute the words 'commits' in subsection 62(3) of the AAT Act.

648. Existing subsection 62(3) makes it an offence for a person who appears as a witness before the Tribunal, and is required by the presiding member to answer a question, to fail to answer the question.

649. The amendment in Item 139 would simplify and modernise the provision without changing policy.

650. Item 140 would repeal the existing penalty for the offence in subsection 62(3) of 30 penalty units or imprisonment for 6 months (or both), and substitute a new penalty of imprisonment for 12 months or 60 penalty units (or both).

651. This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Item 141 - Subsections 62(4) to (6)

652. Item 141 would repeal existing subsections 62(4), (5) and (6) of the AAT Act, and substitute a new subsection 62(4).

653. Existing subsection 62(4) provides a defence of reasonable excuse for the offence in subsection 62(3) of appearing as a witness and failing to comply with a requirement to answer a question.

654. Item 140 would replace this defence with a defence in new subsection 62(4) where answering a question might tend to incriminate the person.

655. The defence of reasonable excuse would be removed because the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers advises against the use of reasonable excuse defences, noting that such defences are vague and therefore difficult to rely on. There are also general defences in the Criminal Code (duress, mistake or ignorance of fact, intervening conduct or event, and lawful authority) which a person can rely on in place of the reasonable excuse defence.

656. With respect to self-incrimination, the privilege against self-incrimination applies at common law. However, for the avoidance of doubt new subsection 62(4) would insert a specific defence of self-incrimination to the offence in subsection 62(3). This provides certainty that the privilege would not be abrogated. The defence does not preclude or remove the power to compel an answer to a question that is not self-incriminatory from an individual. The defence also does not preclude the individual from having to answer questions that may incriminate others.

657. The note to new subsection 62(4) would state that a defendant bears an evidential burden in relation to the matter in subsection 63(4)-see subsection 13.3(3) of the Criminal Code Act. Section 13.3 of the Criminal Code provides that in the case of a standard 'evidential burden' defence, the defendant bears the burden of pointing to evidence that suggests a reasonable possibility that the defence is made out. If this is done, the prosecution must refute the defence beyond reasonable doubt (section 13.1). It is considered appropriate to cast the evidential burden on the defendant in these circumstances. The person who is being compelled to answer a question will be best placed to know whether complying might tend to incriminate the person.

658. With respect to legal professional privilege, the privilege applies at common law and has an equivalent in the Evidence Act. Legal professional privilege is intended to apply.

659. Existing subsection 62(5) makes it an offence for a person who appears as a witness before the Tribunal, and has been given a summons to produce a book, document or thing, to fail to comply with the summons. Existing subsection 62(6) provides a defence of reasonable excuse for this offence.

660. The conduct prohibited by existing subsection 62(5) is sufficiently provided for in new subsection 61(1). The consolidation of the offences would simplify and modernise the language but retain the substance of the existing provision. Existing subsections 62(5) and (6) are therefore not reproduced.

Item 142 - Section 62A and Item 143-Section 62A (penalty)

661. Item 142 would omit the words 'is guilty of' and substitute the words 'commits' in existing section 62A of the AAT Act.

662. Existing section 62A makes it an offence for a person to appear before the Tribunal, give evidence, and do so knowing the evidence is false or misleading.

663. The amendment in Item 142 would simplify and modernise the provision without changing policy.

664. Item 143 would repeal the existing penalty for the offence in section 62A of 30 penalty units or imprisonment for 6 months (or both) and substitute a new penalty of imprisonment for 12 months or 60 penalty units (or both).

665. This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

Item 144 - Sections 63 to 65

666. Item 144 would repeal existing sections 63, 64 and 65 of the AAT Act, and substitute new sections 62C, 63 and 64, to:

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create a new offence of breach of a non-disclosure order (new section 62C)

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modernise the offences for contempt of Tribunal (new section 63)

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modernise the provision for Tribunal registries (new section 64), and

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remove existing section 65, which provides for the powers, duties and functions of officers of the Tribunal.

667. Existing section 65 of the AAT Act provides that, in relation to a proceeding, the officers of the Tribunal have the duties, powers and functions conferred on them by the AAT Act or the President. This provision is unnecessary and would accordingly be repealed.

New section 62C - Breach of non-disclosure order

668. New section 62C would create a new offence for a person to engage in conduct that would contravene an order made under new subsections 35(3) or (4), or 35AA(2) of the AAT Act. New subsections 35(3) and (4) would empower the Tribunal to make non-disclosure or non-publication orders, to restrict or prohibit the publication or disclosure of various matters related to a proceeding, such as the names of witnesses and the content of evidence. New subsection 35AA(2) would empower the Tribunal to make non-publication or non-disclosure directions in respect of certain Security Division proceedings.

669. New section 62C would also provide a penalty of imprisonment for 12 months or 60 penalty units, or both.

670. This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

New section 63 - Contempt of Tribunal

671. Existing section 63 contains a series of contempt of Tribunal offences for:

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insulting a member (existing subsection 63(1))

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interrupting proceedings (existing subsection 63(2))

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creating a disturbance (existing subsection 63(3))

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taking part in or creating a disturbance (existing subsection 63(4)), or

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engaging in conduct that would be contempt if in a court of record (existing subsection 63(5)).

672. The penalty for each offence is set at 30 penalty units or imprisonment for 6 months (or both).

673. Item 144 would substitute a new section 63 containing two offences for contempt of Tribunal. These would:

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prohibit conduct that obstructs or hinders the Tribunal or a member in the performance of the functions of the Tribunal (new subsection 63(1)), and

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conduct that would, if the Tribunal were a court of record, constitute a contempt of court (new subsection 63(2)).

674. The prohibitions in existing subsections 62(3) and (4) of creating or taking part in disturbances are adequately covered by the offences in the Court Security Act 2013 and would not be re-enacted.

675. New section 63 would provide that the penalty for each action would be imprisonment for 12 months or 60 penalty units, or both. This is intended to bring the penalty for this offence into line with the penalties for other offences in the AAT Act, and would be consistent with those applying for similar offences in other Acts conferring jurisdiction on the AAT (such as the Migration Act) and the legislation establishing other courts and tribunals.

New section 64 - Registries

676. Existing section 64 provides that the Governor-General shall cause such Registries of the Tribunal to be established as the Governor-General sees fit, but so that at least one Registry shall be established in each State and one shall be a Principal Registry.

677. New section 64 would provide that the Minister may establish such registries of the Tribunal as the Minister sees fit. The amendment would simplify the provision and provide the Tribunal with greater flexibility in its operations.

Item 145 - Subsections 66(1) and (2)

678. Item 145 would repeal subsections 66(1) and (2) of the AAT Act and substitute new subsections 66(1) and (2).

679. Existing section 66 sets out circumstances in which confidential information or documents cannot be disclosed to a court.

680. Existing subsection 66(1) provides that current and former members and officers of the Tribunal are not competent and cannot be required to give evidence to a court where:

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to do so would be contrary to a non-disclosure order under subsection 35(2)

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an application has been made for a non-disclosure order under subsection 35(2) and has not yet been determined, or

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an Attorney-General's public interest certificate is in force under sections 36 or 36B and the Tribunal has restricted access to the relevant information from the parties.

681. Existing subsection 66(2) similarly provides that current and former members and officers of the Tribunal cannot be required to produce certain types of documents in a court where:

•

to do so would be contrary to a non-disclosure order under subsection 35(2)

•

an application has been made for a non-disclosure order under subsection 35(2) and has not yet been determined, or

•

an Attorney-General's public interest certificate is in force under sections 36 or 36B and the Tribunal has restricted access to the relevant information from the parties.

682. 'Court' is defined in for the purposes of these provisions in existing subsection 66(4) to include any tribunal, authority or person having power to require the production of documents or the answering of questions.

683. New subsection 66(1) would provide a similar protection as existing subsections 66(1) and (2) to current and former members from producing protected information to a court. However, the definition of 'protected information' that would be provided by subsection 66(4) (inserted by Item 146) expands the categories of protected information to any information concerning a person that was obtained by an entrusted person in the course of the entrusted person's duties. This reflects the broader scope of protection provided for persons with functions, duties or powers in the MRT-RRT and SSAT under existing sections 377 and 439 of the Migration Act and clause 19 of Schedule 3 to the SSA Act.

684. New subsection 66(2) would provide that an entrusted person must not be required to disclose protected information or documents to a parliament where the document or information relates to a Part 7-reviewable decision, within the meaning of the Migration Act, and the production or disclosure is not necessary for the purposes of carrying into effect the provisions of this Act of another enactment conferring powers on the Tribunal. This reproduces the protection in existing subsection 439(5) of the Migration Act, which protects the privacy and safety of applicants for protection visas.

Item 146 - Subsection 66(4)

685. Item 146 would insert new definitions of 'entrusted person', 'parliament' and 'protected' into subsection 66(4) of the AAT Act for the purposes of the protections in section 66:

•

'Entrusted person' would be defined as a person who is, or has been, a member, an officer or staff member of the Tribunal or someone engaged by the Tribunal to provide services to the Tribunal during a proceedings before the Tribunal. This would extend the scope of the protections in section 66 to staff of the Tribunal, and persons who are who have been engaged to provide services to the Tribunal during a proceeding. This extended scope is consistent with protections in existing sections 377 and 439 of the Migration Act and existing clause 19 of Schedule 3 to the SSA Act.

•

'Parliament' would be defined to mean a House of Parliament of the Commonwealth, or of a State or of a Territory, or a committee of a House or Houses of Parliament of the Commonwealth, of State or of a Territory.

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'Protected' would be defined to mean, in context, that a document or information is protected if it concerns a person and was obtained by an entrusted person in the course of the entrusted person's duties.

686. The additional definitions are consistent with existing provisions of the Migration Act and the SSA Act and provide clearer drafting.

Item 147 - After section 66A

687. Item 147 would insert new section 66B into the AAT Act, which would provide for the Tribunal to publish, by any means necessary, its decisions and reasons for decisions. An exception applies to the publication of information, the disclosure of which is prohibited or restricted by or under the Act or any other enactment conferring the Tribunal with jurisdiction.

688. There is no existing legislative requirement for the AAT to publish decisions, although the MRT and RRT are required to publish certain decisions. The amendment made by Item 146 would remedy that anomaly, by expressly providing that the tribunal may publish its decision, subject to statutory restrictions on disclosure.

Item 148 - Section 67

689. Item 148 would repeal existing section 67 of the AAT Act and substitute a new section.

690. Existing section 67 provides an entitlement to fees and allowances for expenses in respect of compliance with a summons, as set by Regulations, to be paid by the party requesting the summons or, in any other case or at the discretion of the Tribunal, by the Commonwealth. Similar provisions exist in sections 374 and 436 of the Migration Act, clause 22 of Schedule 3 to the SSA Act, subsections 244(5) and (6) of the PPL Act, and subsection 103K(4) of the CSRC Act.

691. New subsection 67 would provide a more general provision applicable across the amalgamated Tribunal that fees and allowances for complying with a requirement to give evidence, or produce a document or give information under a prescribed provision of the AAT Act or an Act conferring jurisdiction on the Tribunal, are payable to a person in accordance with details prescribed in the Regulations which may limit or prohibit entirely the payment of fees in certain circumstances.

692. The amendment would harmonise, and centralise, provisions about fees and allowances. It would also assist to preserve, where necessary, the unique characteristics of the migration and social security jurisdictions with respect to fees and allowances for expenses in Regulations.

Item 149 - Sections 68 and 68AA

693. Item 149 would repeal existing sections 68 and 68AA of the AAT Act, and substitute new sections 68 and 68AA.

New section 68 - Giving documents

694. Existing section 68 provides that any document that is required to be lodged must be lodged with a Registry and that, subject to requirements prescribed in Regulations, documents may be lodged electronically. Existing section 68AA details when a document, statement, notice or other notification is taken to have been given to a person.

695. New section 68 replaces both sections and would provide that Regulations may prescribe the manner in which a document or thing required or permitted to be provided must be lodged with or given to the Tribunal or given to a person, for the purposes of a proceeding (new paragraphs 68(1)(a) and 68(2)(a)). If the Regulations do not make a relevant prescription, Presidential practice directions can set out how this may be done (new paragraphs 68(1)(b) and 68(2)(b)). An exception applies if another Act or enactment specifies how a document or thing is to be lodged with or given to the Tribunal or given to a person (new subsection 68(3)).

696. The exception in subsection 68(3) would be particularly relevant in the Migration and Refugee Division, as procedures for giving and lodging documents would be set out in the Migration Act.

697. The amendment would allow for all aspects of how a document may be lodged or given to the Tribunal or given to a person to be set out in Regulations or directions, rather than specified in part in the Act and in part in Regulations as is currently the case. It would allow for sufficient flexibility to reconsider these procedures if appropriate. It would also allow for appropriate exclusions, where required.

New section 68AA - President's directions

698. New section 68AA would provide that if the President gives a direction that, under the AAT Act, must be written, failing to do so in writing does not invalidate anything done in accordance with or otherwise in relation to or as a consequence of the direction.

699. This provision is intended to prevent minor technical flaws being used to overturn Tribunal decisions.

Item 150 - Section 68A, and Item 151-At the end of section 68A

700. Item 150 would number existing section 68A of the AAT Act as subsection 68A(1) to reflect the insertion of a new subsection 68A(2) by Item 151.

701. Item 151 would insert a new subsection 68A(2) of the AAT Act, which would provide that subsection 68A(1), as numbered by Item 150, does not apply in relation to a proceeding in the Migration and Refugee Division.

702. Existing section 68A provides that if the time period for an action under the Act, another Act, or a Tribunal direction, in relation to a proceeding is less than 7 days, any day on which the Registry in which the application was lodged is closed is not counted in calculating the end of the time period.

703. This approach recognises that specific procedures relating to time periods currently apply to matters determined by the MRT and RRT under the codes of procedure in the Migration Act.

Item 152 - At the end of section 69

704. Item 152 would create new subsection 69(3) of the AAT Act.

705. Existing section 69 provides that a person who is a party to a proceeding or proposes to institute a proceeding in the Tribunal or a court in relation to matters under the AAT Act may apply to the Attorney-General for assistance. The Attorney-General may authorise the provision of legal or financial assistance by the Commonwealth to the person if the Attorney-General is satisfied that refusing to do so would involve hardship to that person and that it is reasonable in all circumstances to grant the assistance.

706. New subsection 69(3) would exclude the operation of section 69 for applications for review of a decision, or proceeding, in the Migration and Refugee Division or the Social Services and Child Support Division.

707. The amendment would reflect that such assistance is not currently available in relation to SSAT, MRT and RRT proceedings.

Item 153 - Section 69A

708. Item 153 would repeal section 69A of the AAT Act and substitute a new provision.

709. Existing section 69A deals with the procedure for taxing costs if the Tribunal makes a costs order and the parties cannot agree on the amount of the costs. Existing subsection 69A(1) provides that the President may give directions for costs to be taxed or settled by the Tribunal, or to be taxed by the Registrar, a District Registrar or a Deputy Registrar.

710. New section 69A would retain the substance of the provision but removes references to the President giving directions and references to 'the Registrar, a District Registrar or a Deputy Registrar', substituting a reference to 'an officer of the Tribunal'.

711. The amendment would reflect that references to specific types of Registrar are no longer necessary as they would be replaced by references to 'officer of the Tribunal' (see new section 24PA inserted by Item 35.

Item 154 - Section 69B (heading)

712. Item 154 would repeal the heading of section 69B of the AAT Act (Costs in certain proceedings in Security Appeals Division), and substitute a new heading (Costs in Security Division review of security assessment).

713. This amendment would reflect the change in Division name from Security Appeals Division to Security Division and the type of proceedings in relation to which a costs order may be made under this section.

Item 155 - After section 69B

714. Item 155 would insert a new section 69BA into the AAT Act.

715. At present, the Tribunal can only exercise its dismissal powers under sections 42A and 42B in relation to applications for a review of a decision.

716. New section 69BA would allow the Tribunal to exercise dismissal powers under sections 42A and 42B (except subsection 42A(4)) for most types of proceedings, including applications for an extension of time to lodge an application, applications to stay the operation of the decision under review, or applications for a confidentiality order.

717. Section 42A and 42B would not apply to proceedings in the Migration and Refugee Division. In accordance with new section 24Z (which would be inserted by Item 38) most provisions of Part IV of the AAT Act would not apply to proceedings in the Migration and Refugee Division.

Items 156 - Section 69C, and Item 157-At the end of section 69C

718. Item 156 would number existing section 69C of the AAT Act as subsection 68C(1) to reflect the insertion of a new subsection 69C(2) by Item 157.

719. Existing 69C provides that the Tribunal may dismiss an application if a fee payable in accordance with the AAT Regulations is not paid by the time specified in the Regulations.

720. Item 157 inserts a new subsection 69C(2) into the AAT Act to exclude the operation of existing section 69C for applications for review of a decision, or proceeding, in the Migration and Refugee Division.

721. The amendment would reflect that matters relating to fees for applications in the Migration Review Tribunal and Refugee Review Tribunal are dealt with under the provisions of the migration law