PART II
-
ESTABLISHMENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Division 2
-
Members of Tribunal
History
Div 2 heading inserted by No 38 of 2005. For transitional provisions see note under s
2A
.
SECTION 10
ACTING APPOINTMENTS
Acting President
10(1)
The Minister may, by written instrument, appoint a Judge of the Federal Court of Australia to act as the President:
(a)
during a vacancy in the office of President (whether or not an appointment has previously been made to the office); or
(b)
during any period, or during all periods, when the President:
(i)
is absent from duty or from Australia; or
(ii)
is, for any reason, unable to perform the duties of office.
Note:
For rules that apply to acting appointments, see sections
33AB
and
33A
of the
Acts Interpretation Act 1901
.
History
S 10(1) substituted by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(1) formerly read:
10(1)
Acting President.
The Governor-General may appoint a Judge of the Federal Court of Australia to act as President during any period, or during all periods, when the President is absent from duty or from Australia or during a vacancy in the office of President.
S 10(1) substituted by No 58 of 1977; amended by No 26 of 1982.
Acting member (other than President)
10(2)
The Minister may, by written instrument, appoint a person to act as a member (other than the President) during any period, or during all periods, when:
(a)
a full-time member is absent from duty or from Australia; or
(b)
a part-time member is unavailable to perform the duties of office.
Subject to this section, a person so appointed must not continue to act in that appointment for more than 12 months.
History
S 10(2) amended by No 3 of 2022, s 3 and Sch 1 item 46, by inserting
"
Subject to this section, a person so appointed must not continue to act in that appointment for more than 12 months.
"
, effective 18 February 2022. For application, saving and transitional provisions, see note under s
10(2A)
.
S 10(2) substituted by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(2) formerly read:
10(2)
Acting Deputy President.
If a Deputy President is, or is expected to be:
(a)
in the case of a full-time Deputy President
-
absent from duty or from Australia; or
(b)
in the case of a part-time Deputy President
-
unavailable to perform the duties of his or her office;
the Governor-General may appoint a person qualified to be appointed as a Deputy President:
(c)
in a case to which paragraph (a) applies
-
to act as a full-time Deputy President during the absence; or
(d)
in a case to which paragraph (b) applies
-
to act as a part-time Deputy President during the period of unavailability.
S 10(2) substituted by No 58 of 1977; No 26 of 1982; No 38 of 2005.
No 38 of 2005, Sch 1
[
28], provides:
Transitional
-
subsection 10(2) of the
Administrative Appeals Tribunal Act 1975
28(1)
This item applies to an appointment if:
(a)
the appointment was made under subsection 10(2) of the
Administrative Appeals Tribunal Act 1975
; and
(b)
the appointment was in force immediately before the commencement of this item.
28(2)
The appointment has effect, after the commencement of this item, as if it had been made under subsection 10(2) of the
Administrative Appeals Tribunal Act 1975
as amended by this Schedule.
Provisions relevant to Act No 38 of 2005 (Sch 1
[
201] and
[
202]) are reproduced after s 2A of this Act.
10(2A)
The Minister may, by written instrument, appoint a person to act as a Deputy President during any period, or during all periods, when there are no Deputy Presidents. A person so appointed must not continue to act in that appointment for more than 12 months.
History
S 10(2A) inserted by No 3 of 2022, s 3 and Sch 1 item 47, effective 18 February 2022. No 3 of 2022, s 3 and Sch 1 item 60 contain the following application, saving and transitional provisions:
60 Application, saving and transitional provisions
(1)
The amendment of subsection
10(2)
of the
Administrative Appeals Tribunal Act 1975
made by this Part applies in relation to appointments made on or after the commencement of this item.
(2)
An assignment in force under subsection
17L(1)
or
(7)
of the
Administrative Appeals Tribunal Act 1975
immediately before the commencement of this item, being an assignment of a person to be the deputy head of a Division or of a person to act as the deputy head of a Division, continues in force on and after that commencement as if it were an assignment of the person to be a deputy head of that Division or of a person to act as a deputy head of that Division.
(3)
The amendments made by this Part do not affect the validity of:
(a)
a conferral of a function or power by the President, as mentioned in section
24P
of the
Administrative Appeals Tribunal Act 1975
, before the commencement of this item; or
(b)
an appointment under section
24PA
of the
Administrative Appeals Tribunal Act 1975
made before the commencement of this item.
(4)
The amendments of sections
59A
and
59B
of the
Administrative Appeals Tribunal Act 1975
made by this Part apply in relation to authorisations given on or after the commencement of this item.
Qualification for acting appointment
10(3)
A person must not be appointed to act in an office under subsection
(2)
or
(2A)
unless the person meets the requirements in section
7
for appointment to the office.
History
S 10(3) amended by No 3 of 2022, s 3 and Sch 1 item 48, by substituting
"
subsection (2) or (2A)
"
for
"
subsection (1) or (2)
"
, effective 18 February 2022. For application, saving and transitional provisions, see note under s
10(2A)
.
S 10(3) substituted by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(3) formerly read:
10(3)
Acting non-presidential member.
Where a non-presidential member is, or is expected to be
-
(a)
in the case of a full-time member
-
absent from duty or from Australia; or
(b)
in the case of a part-time member
-
unavailable to perform the duties of his or her office,
the Governor-General may appoint a person
-
(c)
in a case to which paragraph (a) applies
-
to act as a full-time non-presidential member during the absence; or
(d)
in a case to which paragraph (b) applies
-
to act as a part-time non-presidential member during the period of unavailability.
S 10(3) substituted by No 58 of 1977; amended by No 26 of 1982; by No 175 of 1995.
10(4)
(Repealed by No 60 of 2015)
History
S 10(4) repealed by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(4) formerly read:
10(4)
A person shall not be appointed under subsection (3) to act as a senior member, or as a non-presidential member other than a senior member, unless the person is qualified to be appointed as a senior member or as such a non-presidential member, as the case requires.
S 10(4) substituted by No 58 of 1977; amended by No 26 of 1982.
10(5)
Extension of acting appointment.
Where a person has been appointed under subsection
(2)
, the Minister may, by reason of a pending proceeding or other special circumstances, direct, before the absent or unavailable member ceases to be absent or unavailable, that the person so appointed shall continue to act under the appointment after the member ceases to be absent or unavailable until he or she resigns the appointment or the Governor-General terminates the appointment, but a person shall not continue to act by virtue of this subsection for more than 12 months after the member ceases to be absent or unavailable.
History
S 10(5) amended by No 60 of 2015, s 3 and Sch 1 item 23, by omitting
"
or (3)
"
after
"
subsection (2)
"
, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 10(5) substituted by No 58 of 1977; amended by No 175 of 1995.
10(6)
Where a person has been appointed under this section to act as a member during the absence or unavailability of a member and the member ceases to hold office without having resumed duty or become available to perform the duties of his or her office, the period of appointment of the person so appointed shall, subject to this Act, be deemed to continue until he or she resigns the appointment, the appointment is terminated by the Governor-General or a period of 12 months elapses from the day on which the absent or unavailable member ceases to hold office, whichever first happens.
History
S 10(6) substituted by No 58 of 1977; amended by No 175 of 1995; amended by No 43 of 1996.
Terms and conditions of acting appointment
10(7)
Subject to this Part, a person (other than a Judge) appointed to act in an office under subsection
(2)
or
(2A)
is to act on such terms and conditions as the Minister determines in writing.
History
S 10(7) amended by No 3 of 2022, s 3 and Sch 1 item 49, by inserting
"
or (2A)
"
, effective 18 February 2022. For application, saving and transitional provisions, see note under s
10(2A)
.
S 10(7) substituted by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(7) formerly read:
10(7)
Terms and conditions.
A person acting as a Deputy President or as a non-presidential member shall act in that capacity on such terms and conditions as the Minister determines.
S 10(7) substituted by No 58 of 1977; amended by No 26 of 1982.
10(8)
(Repealed by No 26 of 1982)
10(9)
(Repealed by No 60 of 2015)
History
S 10(9) repealed by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(9) formerly read:
10(9)
Resignation.
A person who is acting as:
(a)
President; or
(b)
a Deputy President; or
(c)
a non-presidential member;
may resign his or her acting appointment by giving the Governor-General a written resignation. The resignation takes effect on the day it is received by the Governor-General or, if a later day is specified in the resignation, on that later day.
S 10(9) substituted by No 38 of 2005. For transitional provisions see note under s
2A
.
S 10(9) substituted by No 58 of 1977; amended by No 26 of 1982; by No 175 of 1995.
10(10)
(Repealed by No 60 of 2015)
History
S 10(10) repealed by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(10) formerly read:
10(10)
Exercise of powers.
A person acting as the President, as a Deputy President, as a senior member or as a non-presidential member other than a senior member in accordance with this section has and may exercise all the powers, and shall perform all the functions and duties, conferred or imposed by this Act on the President, on a Deputy President, on a senior member or on a non-presidential member other than a senior member, as the case may be, and, for the purposes of the exercise of those powers, or the performance of those functions and duties, this Act has effect as if a reference to the President, to a Deputy President, to a senior member or to a non-presidential member other than a senior member included a reference to a person acting as the President, as a Deputy President, as a senior member, or as a non-presidential member other than a senior member, as the case may be.
S 10(10) substituted by No 58 of 1977; No 26 of 1982.
10(11)
(Repealed by No 60 of 2015)
History
S 10(11) repealed by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(11) formerly read:
10(11)
Validity of decisions etc.
Where the Tribunal is constituted for the purposes of a proceeding by, or the Tribunal as constituted for the purposes of a proceeding includes, a person acting or purporting to be appointed under this section, or a person so acting or purporting to be appointed has done any act, the validity of any decision of, or of any direction given or other act done by, the Tribunal as so constituted or of the act done by the person so acting or purporting to be appointed shall not be called in question in any proceeding on the ground that the occasion for the person to act or for the appointment of the person had not arisen or that the occasion for his or her appointment had passed or his or her appointment had ceased to have effect.
S 10(11) substituted by No 58 of 1977; amended by No 175 of 1995.
History
S 10(11) repealed by No 60 of 2015. For transitional and saving provisions, see note under the title of the Act.
S 10(11) substituted by No 58 of 1977; amended by No 175 of 1995.
View history note
Hide history note