Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (38 of 2024)
Schedule 1 Treasury
Part 1 Main amendments
Australian Charities and Not-for-profits Commission Act 2012
4 Sections 165-5 to 165-45
Repeal the sections, substitute:
165-5 ART Act applies subject to this Division
(1) The ART Act applies in relation to:
(a) the review of objection decisions; and
(b) the review of extension of time refusal decisions; and
(c) ART extension applications;
subject to this Division.
(2) Subsection (3) applies if the ART President refers to the guidance and appeals panel under section 128 of the ART Act a decision made by the ART to affirm, vary or set aside either of the following decisions (each of which is an original decision ):
(a) an objection decision;
(b) an extension of time refusal decision.
(3) The ART Act, as modified by this Division (other than by the provisions mentioned in subsection (4)), applies in relation to:
(a) the application for review that is taken to be made under subsection 130(2) of that Act; and
(b) the review of the decision made by the ART;
in the same way as it applies to the review of, and the application for review of, the original decision.
(4) The provisions are:
(a) subsections 165-10(1), (2) and (3); and
(b) section 165-15; and
(c) subsections 165-25(1) and (2).
165-10 Special rules for objection decisions or extension of time refusal decisions
(1) Sections 17 (who can apply) and 18 (when to apply - general rule) of the ART Act do not apply in relation to:
(a) an objection decision; or
(b) an extension of time refusal decision.
(2) The President of the ART may allow a longer period to make an application to refer a decision of the ART on the review of an objection decision or an extension of time refusal decision to the guidance and appeals panel under section 125 (when to apply to refer Tribunal decision) of the ART Act only if the period for making the application has not expired.
(3) If the President of the ART decides to allow a longer period under section 125 of the ART Act (as modified by subsection (2) of this section), the President of the ART must notify the Commissioner as soon as practicable after making the decision.
(4) Section 32 (reviewable decision continues to operate unless Tribunal orders otherwise) of the ART Act does not apply in relation to:
(a) an objection decision; or
(b) an extension of time refusal decision.
(5) Section 127 (Tribunal decision continues to operate unless Tribunal orders otherwise) of the ART Act does not apply in relation to an objection decision or an extension of time refusal decision.
(6) Section 178 (operation and implementation of Tribunal's decision) of the ART Act does not apply in relation to an objection decision.
165-15 When and how to apply to the ART
(1) Despite section 18 (when to apply - general rule) of the ART Act, an application to the ART for review of a decision must be made within 60 days after the person making the application is served with notice of the decision.
Note: A person may, under section 19 of the ART Act, apply to the ART to extend the period.
(2) Despite subsection 34(1) of the ART Act, an application to the ART for a review of a decision must be in writing.
(3) An application to the ART for a review of a decision must set out a statement of the reasons for the application.
(4) Subsection (3) applies in addition to subsection 34(2) of the ART Act.
Note: Subsection 34(2) of the ART Act requires applications to include the information specified for the application in practice directions made by the President of the ART.
(5) A failure to comply with subsection (3) does not affect the validity of the application.
165-20 Parties to proceedings for review
Despite paragraph 22(1)(c) of the ART Act:
(a) a person (the affected person ) whose interests are affected by an objection decision or an extension of time refusal decision may apply to become a party to a proceeding for review of the decision; and
(b) the ART may make the affected person a party to the proceeding only if the ART is satisfied that the applicant for review of the decision consents.
165-25 Giving documents to the ART
(1) Section 23 (decision-maker must give Tribunal reasons and documents - general rule) of the ART Act does not apply in relation to an application for review of an objection decision.
(2) Instead, the decision-maker of an objection decision must give the ART the following documents within 28 days after the ART notifies the decision-maker of the application for review of the decision:
(a) a statement giving the reasons for the decision;
(b) the notice of the administrative decision concerned;
(c) the objection concerned;
(d) the notice of the objection decision;
(e) every other document that is:
(i) in the Commissioner's possession or under the Commissioner's control; and
(ii) considered by the Commissioner to be necessary to the review of the objection decision concerned;
(f) a list of the documents (if any) being given under paragraph (e).
(3) Section 25 (decision-maker must give Tribunal additional documents within 28 days - general rule) of the ART Act does not apply in relation to the ART's review of an objection decision.
(4) Instead, if:
(a) at any time during the ART's review of an objection decision a document that is necessary to the review comes into the possession or under the control of the decision-maker; and
(b) the document has not been given to the ART for the purposes of the review;
the decision-maker must give a copy of the document to the ART within 28 days after the day on which the document came into the possession or under the control of the decision-maker.
(5) In addition to subsection (4), if, at any time during the ART's review of an objection decision, the ART is satisfied that documents that may be relevant to the review are in the possession or under the control of the decision-maker of the objection decision, the Tribunal may require the decision-maker to give a list of those documents to the Tribunal within a specified period.
(6) To avoid doubt, the ART's power in subsection (5) of this section is in addition to the ART's power in section 26 (decision-maker must give Tribunal additional documents on request - general rule) of the ART Act.
(7) For the purposes of the ART Act:
(a) the requirement to give a statement giving the reasons for the decision under paragraph (2)(a) of this section is taken to be the requirement to give a statement of reasons for the decision under paragraph 23(a) of that Act; and
(b) the requirement to give other documents under subsection (2), (4) or (5) of this section is taken to be the requirement to give other documents under Subdivision B of Division 4 of Part 3 of that Act; and
(c) a statement giving the reasons for a decision, given under subsection (2) of this section, is taken to have been given under paragraph 23(a) of that Act; and
(d) any other document, given under subsection (2), (4) or (5) of this section, is taken to have been given under Subdivision B of Division 4 of Part 3 of that Act.
Note: As a result of this subsection, the decision-maker must, under section 27 of the ART Act, give a copy of the statement or documents to each other party to the proceedings within the relevant period. Also, exceptions under sections 28 and 29 of that Act in relation to giving documents might apply, and under section 24 of that Act the ART may order the decision-maker to give the ART further information.
165-30 Grounds of objection and burden of proof
On an application for review of an objection decision:
(a) the applicant is, unless the ART orders otherwise, limited to the grounds stated in the objection to which the objection decision relates; and
(b) the applicant has the burden of proving that the administrative decision concerned should not have been made or should have been made differently.
165-35 Implementation of ART decisions
(1) When the decision of the ART on the review of an objection decision or an extension of time refusal decision becomes final, the Commissioner must, within 60 days, take such action as is necessary to give effect to the ART's decision.
(2) For the purposes of subsection (1), if:
(a) no appeal is lodged against the ART's decision within the period for lodging an appeal; and
(b) no application to refer a decision of the ART to the guidance and appeals panel is made within the period for making the application;
the decision becomes final at the end of the period.