Administrative Appeals Tribunal Act 1975
PART I - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the
Administrative Appeals Tribunal Act 1975.
SECTION 2
2
COMMENCEMENT
This Act shall come into operation on a day to be fixed by Proclamation.
History
This Act was proclaimed to commence on 1 July 1976.
SECTION 2A
2A
TRIBUNAL'S OBJECTIVE
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)
is accessible; and
(b)
is fair, just, economical, informal and quick; and
(c)
is proportionate to the importance and complexity of the matter; and
(d)
promotes public trust and confidence in the decision-making of the Tribunal.
History
S 2A substituted by No 60 of 2015, s 3 and Sch 1 item 1, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 2A formerly read:
SECTION 2A TRIBUNAL'S OBJECTIVE
2A
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.
S 2A inserted by No 38 of 2005. No 38 of 2005, Sch 1[201]-[202], contained the following provisions:
Transitional - acts or things done on basis that provision of
Administrative Appeals Tribunal Act 1975
referred to furnishing etc.
201(1)
This item applies to an act or thing if:
(a)
the act or thing was done before the commencement of this item; and
(b)
the act or thing was done on the basis that a particular provision of the Administrative Appeals Tribunal Act 1975 referred to:
(i)
furnish; or
(ii)
furnished; or
(iii)
furnishing; or
(iv)
serve; or
(v)
served; or
(vi)
service.
201(2)
After the commencement of this item, the act or thing is as valid as it would have been if it had been done on the basis that the provision had referred instead to whichever of the following expressions is appropriate:
(a)
give;
(b)
given;
(c)
giving.
201(3)
This item is enacted for the avoidance of doubt.
Transitional regulations
202
The Governor-General may make regulations in relation to transitional matters arising out of the amendments made by this Schedule.
SECTION 3
INTERPRETATION
3(1)
In this Act, unless the contrary intention appears:
ACT enactment
(Repealed by No 38 of 2005)
History
Definition of "ACT enactment" inserted by No 109 of 1988.
adduce
includes give.
History
Definition of "adduce" inserted by No 175 of 1995.
agency party
means a party who is:
(a)
the Secretary of a Department; or
(b)
the Chief Executive Medicare; or
(c)
the Chief Executive Centrelink; or
(d)
the Child Support Registrar.
History
Definition of "agency party" inserted by No 60 of 2015, s 3 and Sch 1 item 2, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
alternative dispute resolution processes
means procedures and services for the resolution of disputes, and includes:
(a)
conferencing; and
(b)
mediation; and
(c)
neutral evaluation; and
(d)
caseappraisal; and
(e)
conciliation; and
(f)
procedures or services specified in the regulations;
but does not include:
(g)
arbitration; or
(h)
court procedures or services.
Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.
History
Definition of "alternative dispute resolution processes" inserted by No 38 of 2005.
ASIO affiliate
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "ASIO affiliate" inserted by No 108 of 2014, s 3 and Sch 1 item 31, effective 30 October 2014.
ASIO employee
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "ASIO employee" inserted by No 108 of 2014, s 3 and Sch 1 item 31, effective 30 October 2014.
ASIO Minister
means the Minister administering the Australian Security Intelligence Organisation Act 1979.
History
Definition of "ASIO Minister" inserted by No 31 of 2018, s 3 and Sch 2 item 1, effective 11 May 2018. For transitional rules, see note under s 39B(2).
authorised member
means a member who has been authorised by the President under section 59A for the purposes of the provision in which the expression occurs.
History
Definition of "authorised member" inserted by No 38 of 2005.
authorised officer
means an officer of the Tribunal who has been authorised by the President under section 59B for the purposes of the provision in which the expression occurs.
History
Definition of "authorised officer" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
authority of Norfolk Island
means an authority, tribunal or other body, whether incorporated or not, that is established by a Norfolk Island enactment.
History
Definition of "authority of Norfolk Island" inserted by No 139 of 2010, s 3 and Sch 1 item 126, effective 1 January 2011.
authority of the Commonwealth
means an authority, tribunal or other body, whether incorporated or not, that is established by an enactment.
History
Definition of "authority of the Commonwealth" amended by No 58 of 1977.
Chief Executive Centrelink
has the same meaning as in the Human Services (Centrelink) Act 1997.
History
Definition of "Chief Executive Centrelink" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Chief Executive Medicare
has the same meaning as in the Human Services (Medicare) Act 1973.
History
Definition of "Chief Executive Medicare" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
child support first review
means 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 Child Support (Registration and Collection) Act 1988.
History
Definition of "child support first review" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Commonwealth agency
means a Minister or an authority of the Commonwealth.
History
Definition of "Commonwealth agency" inserted by No 175 of 1995.
Conference Registrar
(Repealed by No 60 of 2015)
History
Definition of "Conference Registrar" repealed by No 60 of 2015, s 3 and Sch 1 item 4, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
Conference Registrar
means a Conference Registrar of the Tribunal.
Definition of "Conference Registrar" inserted by No 175 of 1995.
CSC
(short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
History
Definition of "CSC" inserted by No 58 of 2011, s 3 and Sch 1 item 1, effective 1 July 2011.
Deputy President
means a member appointed as a Deputy President of the Tribunal.
History
Definition of "Deputy President" substituted by No 60 of 2015, s 3 and Sch 1 item 5, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
Deputy President
means 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.
Definition of "Deputy President" substituted by No 26 of 1982.
Deputy Registrar
(Repealed by No 60 of 2015)
History
Definition of "Deputy Registrar" repealed by No 60 of 2015, s 3 and Sch 1 item 6(a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
Deputy Registrar
means a Deputy Registrar of the Tribunal.
District Registrar
(Repealed by No 60 of 2015)
History
Definition of "District Registrar" repealed by No 60 of 2015, s 3 and Sch 1 item 6(b), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
District Registrar
means a District Registrar of the Tribunal.
Definition of "District Registrar" inserted by No 175 of 1995.
enactment
means:
(a)
an Act;
(b)
an Ordinance of a Territory other than the Northern Territory, the Australian Capital Territory or Norfolk Island; or
(c)
an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance;
and includes an enactment as amended by another enactment.
Note:
See also subsection 25(8) (Norfolk Island enactments).
History
Definition of "enactment" amended by No 139 of 2010, s 3 and Sch 1 items 127 and 128, by substituting ", the Australian Capital Territory or Norfolk Island" for "or the Australian Capital Territory" in para (b) and inserting the note at the end, effective 1 January 2011.
Definition of "enactment" amended by No 38 of 2005, No 109 of 1988 and No 65 of 1978.
engage in conduct
has the same meaning as in the Criminal Code.
History
Definition of "engage in conduct" inserted by No 60 of 2015, s 3 and Sch 1 item 7, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
exempt security record
means:
(a)
a record of the Australian Security Intelligence Organisation; or
(b)
a record that is claimed to be an exempt record under the
Archives Act 1983 for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C) of that Act.
History
Definition of "exempt security record" amended by No 24 of 2024, s 3 and Sch 2 item 32, by inserting "or subsection 33(4A) or (4C)" in para (b), effective 22 May 2024.
Definition of "exempt security record" inserted by No 53 of 2023, s 3 and Sch 1 item 25, effective 12 August 2023.
full-time member
means a member who is appointed as a full-time member.
immigration advisory service
means a body that provides services in relation to the seeking by non-citizens (within the meaning of the Migration Act 1958) of permission to enter or remain in Australia.
History
Definition of "immigration advisory service" inserted by No 60 of 2015, s 3 and Sch 1 item 7, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Judge
means:
(a)
a Judge of a court created by the Parliament; or
(b)
a person who has the same designation and status as a Judge of a court created by the Parliament.
History
Definition of "Judge" amended by No 26 of 1982.
member
means:
(a)
the President; or
(b)
a Deputy President; or
(c)
a senior member; or
(d)
any other member (of any level referred to in subsection
6(3)).
History
Definition of "member" substituted by No 60 of 2015, s 3 and Sch 1 item 8, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
member
means a presidential member, a senior member, or any other member of the Tribunal.
Definition of "member" substituted by No 26 of 1982.
non-presidential member
means a member other than a presidential member.
Norfolk Island enactment
means:
(a)
an enactment (within the meaning of the
Norfolk Island Act 1979); or
(b)
an instrument (including rules, regulations or by-laws) made under such an enactment;
and includes a Norfolk Island enactment as amended by another Norfolk Island enactment.
History
Definition of "Norfolk Island enactment" inserted by No 139 of 2010, s 3 and Sch 1 item 129, effective 1 January 2011.
Norfolk Island Justice Minister
(Repealed by No 59 of 2015)
History
Definition of "Norfolk Island Justice Minister" repealed by No 59 of 2015, s 3 and Sch 1 item 86, effective 18 June 2015. The definition formerly read:
Norfolk Island Justice Minister
means the Norfolk Island Minister who is responsible, or principally responsible, for the administration of the Interpretation Act 1979 of Norfolk Island.
Definition of "Norfolk Island Justice Minister" inserted by No 139 of 2010, s 3 and Sch 1 item 130, effective 1 January 2011.
Norfolk Island Minister
(Repealed by No 59 of 2015)
History
Definition of "Norfolk Island Minister" repealed by No 59 of 2015, s 3 and Sch 1 item 87, effective 18 June 2015. The definition formerly read:
Norfolk Island Minister
means a Minister of Norfolk Island.
Definition of "Norfolk Island Minister" inserted by No 139 of 2010, s 3 and Sch 1 item 131, effective 1 January 2011.
officer of the Tribunal
means:
(a)
the Registrar; or
(b)
a person appointed as an officer of the Tribunal under section
24PA.
History
Definition of "officer of the Tribunal" substituted by No 60 of 2015, s 3 and Sch 1 item 9, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
officer of the Tribunal
means the Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar.
Definition of "officer of the Tribunal" amended by No 175 of 1995 and No 157 of 1989.
part-time member
means a member who is appointed as a part-time member.
person who made the decision
has a meaning affected by:
(a)
if a review of the decision is or would be an AAT first review within the meaning of the
A New Tax System (Family Assistance) (Administration) Act 1999 - section
111B of that Act; and
(b)
if a review of the decision is or would be an AAT first review within the meaning of the
Paid Parental Leave Act 2010 - section 224A of that Act; and
(c)
if a review of the decision is or would be an AAT first review within the meaning of the
Social Security (Administration) Act 1999 - section 142A of that Act; and
(d)
if a review of the decision is or would be an AAT first review within the meaning of the
Student Assistance Act 1973 - section
311A of that Act.
History
Definition of "person who made the decision" inserted by No 60 of 2015, s 3 and Sch 1 item 9A, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
President
means the President of the Tribunal.
presidential member
means the President or aDeputy President.
History
Definition of "presidential member" substituted by No 60 of 2015, s 3 and Sch 1 item 10, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
presidential member
means the President, a member who is a Judge or a Deputy President.
Definition of "presidential member" substituted by No 26 of 1982.
proceeding
, in relation to the Tribunal, includes:
(a)
an application to the Tribunal for review of a decision; and
(b)
an application to the Tribunal under subsection
28(1AC); and
(c)
an application to the Tribunal for review of a taxing of costs; and
(d)
an application to the Tribunal for a costs certificate under section 10A of the
Federal Proceedings (Costs) Act 1981; and
(e)
an application to the Tribunal under subsection
62(2) of the
Freedom of Information Act 1982; and
(f)
any other application to the Tribunal under this Act or any other Act; and
(g)
any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and
(h)
an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, referred to in a preceding paragraph.
History
Definition of "proceeding" amended by No 60 of 2015, s 3 and Sch 1 item 11, by substituting para (c), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (c) formerly read:
(c)
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; and
Definition of "proceeding" inserted by No 175 of 1995.
Registrar
means the Registrar of the Tribunal.
second review
: a review by the Tribunal of a decision is or would be a
second review
if another enactment:
(a)
authorises an application to be made for review of the decision; and
(b)
designates the review as an
AAT second review
.
History
Definition of "second review" inserted by No 60 of 2015, s 3 and Sch 1 item 12, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
security assessment or assessment
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
View history note
History
Definition of "security assessment" or "assessment" amended by No 161 of 1999 and inserted by No 175 of 1995.
security clearance decision
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "security clearance decision" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
security clearance suitability assessment
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "security clearance suitability assessment" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
security vetting agency
has the meaning given by section 82A of the Australian Security Intelligence Organisation Act 1979.
History
Definition of "security vetting agency" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
senior member
means a senior member of the Tribunal (of either level referred to in subsection 6(3)).
History
Definition of "senior member" substituted by No 60 of 2015, s 3 and Sch 1 item 13, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
senior member
means a senior member of the Tribunal.
Definition of "senior member" inserted by No 26 of 1982.
Senior non-presidential member
(Omitted by No 26 of 1982)
History
Definition of "Senior non-presidential member" inserted by No 58 of 1977.
Small Taxation Claims Tribunal
(Repealed by No 60 of 2015)
History
Definition of "Small Taxation Claims Tribunal" repealed by No 60 of 2015, s 3 and Sch 1 item 14, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
Small Taxation Claims Tribunal
means the Taxation Appeals Division of the Tribunal when that Division is required under Part IIIAA to be known as the Small Taxation Claims Tribunal.
Definition of "Small Taxation Claims Tribunal" inserted by No 34 of 1997.
sponsoring agency
, in relation to a security clearance, has the meaning given by section 82A of the Australian Security Intelligence Organisation Act 1979.
History
Definition of "sponsoring agency" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
State
includes the Northern Territory and the Australian Capital Territory.
History
Definition of "State" amended by No 38 of 2005, inserted by No 120 of 1988.
Tribunal
:
(a)
means the Administrative Appeals Tribunal established by this Act; and
(b)
in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and
(c)
includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.
History
Definition of "Tribunal" substituted by No 175 of 1995.
Territory
(Omitted by No 58 of 1977)
3(2)
Where a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, this Act applies as if that board, committee or other body were a person empowered to make those decisions.
3(3)
Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:
(a)
making, suspending, revoking or refusing to make an order or determination;
(b)
giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)
issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)
imposing a condition or restriction;
(e)
making a declaration, demand or requirement;
(f)
retaining, or refusing to deliver up, an article; or
(g)
doing or refusing to do any other act or thing.
History
S 3(3) amended by No 38 of 2005.
3(4)
(Repealed by No 38 of 2005)
History
No 38 of 2005, s 3 and Sch 1 item 11 contains the following transitional provision:
Transitional - subsections 3(4) and (5) of the
Administrative Appeals Tribunal Act 1975
11
Despite the repeal of subsections 3(4) and (5) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after 16 May 2005, in relation to a document, statement, notice or other notification posted before 16 May 2005, as if:
(a)
that repeal had not happened; and
(b)
each reference in those subsections to furnished included a reference to given; and
(c)
each reference in those subsections to furnishing included a reference to giving; and
(d)
each reference in those subsections to service on included a reference to giving to; and
(e)
each reference in those subsections to served included a reference to given.
S 3(4) formerly read:
3(4)
For the purposes of a reference in this Act to the furnishing to a person of a document or statement, or the service on or giving to a person of a notice or other notification:
(a)
a document or statement shall be deemed to be furnished to a person, or a notice or other notification shall be deemed to be served on or given to a person, as the case may be, if it is posted to the person by a pre-paid letter:
(i)
where the document, statement or notice or other notification relates to a proceeding and the person has furnished an address at which documents in relation to the proceeding may be served - to that address; or
(ii)
where subparagraph (i) does not apply:
(A)
in the case of a person not being a company - to the address of the place of residence or business of the person last known to the person posting the document, statement or notice or other notification; or
(B)
in the case of a company - to the address of the registered office of the company; and
(b)
a document or statement so posted shall be deemed to have been furnished, and a notice or other notification so posted shall be deemed to have been served or given, unless the contrary is proved, at the time when the document, statement or notice or other notification would have been delivered in the ordinary course of post.
S 3(4) substituted by No 26 of 1982 and inserted by No 58 of 1977.
3(5)
(Repealed by No 38 of 2005)
History
For transitional provision, see note under s 3(4).
S 3(5) inserted by No 31 of 1993.
3A
(Repealed) SECTION 3A CERTAIN LEGISLATION RELATING TO AUSTRALIAN CAPITAL TERRITORY NOT TO BE ENACTMENT
(Repealed by No 38 of 2005)
History
S 3A inserted by No 109 of 1988.
3B
(Repealed) SECTION 3B MEMBERS MAY BE APPOINTED TO BE MEMBERS OF ADMINISTRATIVE APPEALS TRIBUNAL FOR THE ACT
(Repealed by No 38 of 2005)
History
S 3B inserted by No 109 of 1988.
SECTION 4
4
EXTENSION TO EXTERNAL TERRITORIES
This Act extends to every external Territory.
History
S 4 amended by No 58 of 1977, Schedule.
PART II - ESTABLISHMENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Division 1 - Establishment of Tribunal
History
Div 1 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 5
5
ESTABLISHMENT OF TRIBUNAL
There is hereby established an Administrative Appeals Tribunal.
History
S 5 amended by No 60 of 2015, s 3 and Sch 1 item 15, by omitting ", which shall consist of a President, the other presidential members, the senior members, and the other members, appointed in accordance with this Act" after "Administrative Appeals Tribunal", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 5 amended by No 26 of 1982, s 7; amended by No 175 of 1995, s 3, Sch 2.
SECTION 5A
5A
MEMBERSHIP
The Tribunal consists of the following members:
(a)
the President;
(b)
Deputy Presidents;
(c)
senior members;
(d)
other members.
History
S 5A inserted by No 60 of 2015, s 3 and Sch 1 item 16, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 2 - Members of Tribunal
History
Div 2 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 6
APPOINTMENT OF MEMBERS OF TRIBUNAL
6(1)
The members shall be appointed by the Governor-General.
History
S 6(1) substituted by No 26 of 1982.
6(2)
A Judge who is to be appointed as a member of the Tribunal is to be appointed as the President or a Deputy President.
History
S 6(2) substituted by No 60 of 2015, s 3 and Sch 1 item 17, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 6(2) formerly read:
6(2)
A Judge who is to be appointed as a member (other than the President) of the Tribunal shall be appointed as a presidential member.
S 6(2) substituted by No 26 of 1982.
6(3)
A person (other than a Judge) who is to be appointed as a member of the Tribunal is to be appointed as:
(a)
a Deputy President; or
(b)
a senior member (level 1); or
(c)
a senior member (level 2); or
(d)
a member (level 1); or
(e)
a member (level 2); or
(f)
a member (level 3).
History
S 6(3) substituted by No 60 of 2015, s 3 and Sch 1 item 17, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 6(3) formerly read:
6(3)
A person (other than a Judge) who is to be appointed as a member of the Tribunal shall be appointed as a Deputy President of the Tribunal, as a senior member of the Tribunal, or as a member of the Tribunal.
S 6(3) substituted by No 26 of 1982.
6(4)
A member (other than a Judge) shall be appointed either as a full-time member or as a part-time member.
History
S 6(4) inserted by No 58 of 1977; substituted by No 26 of 1982.
6(5)
(Omitted by No 26 of 1982)
SECTION 7
QUALIFICATIONS FOR APPOINTMENT
President
7(1)
A person must not be appointed as the President unless the person is a Judge of the Federal Court of Australia.
Deputy President
7(2)
A person must not be appointed as a Deputy President unless the person:
(a)
is a Judge of the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 1); or
(b)
is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or
(c)
in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a Deputy President.
History
S 7(2) amended by No 13 of 2021, s 3 and Sch 2 item 1, by substituting "Federal Circuit and Family Court of Australia (Division 1)" for "Family Court of Australia" in para (a), effective 1 September 2021.
Senior members and other members
7(3)
A person must not be appointed as a senior member or other member unless the person:
(a)
is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or
(b)
in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a senior member or member.
History
S 7 substituted by No 60 of 2015, s 3 and Sch 1 item 18, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 7 formerly read:
SECTION 7 QUALIFICATIONS FOR APPOINTMENT
7(1)
President.
A person must not be appointed as the President unless he or she is a Judge of the Federal Court of Australia.
History
S 7(1) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 7(1) substituted by No 26 of 1982; amended by No 43 of 1996.
7(1AA)
Deputy President.
A person must not be appointed as a Deputy President unless he or she is enrolled as a legal practitioner (however described) of:
(a)
the High Court; or
(b)
the Supreme Court of a State or Territory;
and has been so enrolled for at least 5 years.
History
S 7(1AA) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
7(1A)
(Repealed by No 38 of 2005)
History
S 7(1A) inserted by No 26 of 1982; amended by No 175 of 1995; No 43 of 1996; repealed by No 38 of 2005.
For transitional provisions see note under s 2A.
7(1B)
Senior member.
A person must not be appointed as a senior member unless he or she-
(a)
is enrolled as a legal practitioner (however described) of:
(i)
the High Court; or
(ii)
the Supreme Court of a State or Territory;
and has been so enrolled for at least 5 years; or
(b)
has, in the opinion of the Governor-General, special knowledge or skill relevant to the duties of a senior member.
History
S 7(1B) inserted by No 26 of 1982; amended by No 175 of 1995; amended by No 38 of 2005.
For transitional provisions see note under s 2A.
7(2)
Non-presidential member.
A person must not be appointed as a non-presidential member (other than a senior member) unless he or she-
(a)
is enrolled as a legal practitioner (however described) of:
(i)
the High Court; or
(ii)
the Supreme Court of a State or Territory; or
(b)
has had experience, for not less than 5 years, at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or of an authority of a government; or
(c)
has obtained a degree of a university, or an educational qualification of a similar standing, after studies in the field of law, economics or public administration or some other field considered by the Governor-General to have substantial relevance to the duties of such a member; or
(d)
has, in the opinion of the Governor-General, special knowledge or skill in relation to any class of matters in respect of which decisions may be made in the exercise of powers conferred by an enactment, being decisions in respect of which applications may be made to the Tribunal for review.
History
S 7(2) amended by No 26 of 1982; by No 175 of 1995; No 38 of 2005.
For transitional provisions see note under s 2A.
SECTION 7A
7A
APPOINTMENT OF A JUDGE AS A PRESIDENTIAL MEMBER NOT TO AFFECT TENURE ETC.
The appointment of a Judge as a presidential member, or service by a Judge as a presidential member, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member shall be taken to have been, or to be, service as the holder of his or her office as a Judge.
History
S 7A inserted by No 111 of 1977, s 5; amended by No 75 of 1995, Sch 3.
SECTION 8
TERM OF APPOINTMENT
8(1)
(Repealed by No 38 of 2005)
History
No 38 of 2005, Sch 1[22], provides:
Transitional - section 8 of the
Administrative Appeals Tribunal Act 1975
22(1)
This item applies to a member if the member was covered by subsection 8(1) or (2) of the Administrative Appeals Tribunal Act 1975 immediately before the commencement of this item.
22(2)
Despite the repeal of subsections 8(1) and (2) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after the commencement of this item, in relation to the member's appointment, as if those repeals had not happened.
For further transitional provisions see note under s 2A.
8(2)
(Repealed by No 38 of 2005)
History
S 8(2) repealed by No 38 of 2005. For transitional provisions see note under s 2A and s 8(1).
8(3)
Subject to this Part, a member holds office for such period of at most 7 years as is specified in the instrument of appointment, but is eligible for re-appointment.
8(4)
A member who is a Judge ceases to hold office as a member if he or she ceases to be a Judge.
History
S 8(4) amended by No 60 of 2015, s 3 and Sch 1 item 20, by omitting "presidential" before "member who", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 8(4) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Former s 8(4) repealed by No 159 of 2001.
8(5)
(Repealed by No 38 of 2005)
History
S 8(5) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
8(6)
(Repealed by No 159 of 2001)
8(7)
Subject to this Part, a member holds office on such terms and conditions as are determined by the Minister in writing.
History
S 8(7) amended by No 60 of 2015, s 3 and Sch 1 item 21, by substituting "determined by the Minister in writing" for "prescribed", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 8 inserted by No 26 of 1982; substituted by No 120 of 1988, effective 14 December 1988.
8A
(Repealed) SECTION 8A (SPECIAL PROVISIONS - PRESIDENT ON THE BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION)
(Repealed by No 38 of 2005)
History
S 8A repealed by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 9
REMUNERATION AND ALLOWANCES
9(1)
[Remuneration]
A member, other than a member who is a Judge, shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Remuneration Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.
History
S 9(1) substituted by No 58 of 1977; No 27 of 1982; amended by No 175 of 1995.
9(2)
[Allowances]
A member to whom subsection (1) applies shall be paid such allowances as are prescribed.
History
S 9(2) substituted by No 58 of 1977, s 5; No 26 of 1982.
9(3)
[Remuneration Tribunal Act]
Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.
History
S 9(3) substituted by No 58 of 1977, s 5; No 26 of 1982; amended by No 43 of 1996.
9(4)-(6)
(Repealed by No 26 of 1982)
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 isconstituted 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.
SECTION 10A
DELEGATION
10A(1)
The Minister may, by signed instrument, delegate to the President any or all of the Minister's powers or functions under this Act.
10A(2)
The President may, by signed instrument, delegate to a member any or all of the President's powers or functions under this Act or another enactment.
10A(3)
The Registrar may, by signed instrument, delegate to an officer of the Tribunal or a member of the staff of the Tribunal any or all of the Registrar's powers or functions under this Act or another enactment.
10A(4)
In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the delegator.
History
S 10A substituted by No 60 of 2015, s 3 and Sch 1 item 25, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10A formerly read:
SECTION 10A DELEGATION
10A(1)
The President may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to a member all or any of his or her powers under this Act, other than this power of delegation.
History
S 10A(1) inserted by No 58 of 1977, s 6; substituted by No 26 of 1982, s 13; amended by No 175 of 1995, Sch 3.
10A(2)
A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the President.
History
S 10A(2) inserted by No 58 of 1977, s 6.
10A(3)
A delegation may be made to a member under this section notwithstanding that a delegation to another member is, or delegations to other members are, in force under this section.
History
S 10A(3) inserted by No 58 of 1977, s 6; substituted by No 26 of 1982, s 13.
10A(4)
A delegation under this section does not prevent the exercise of a power by the President.
History
S 10A(4) inserted by No 58 of 1977, s 6.
SECTION 10B
10B
OATH OR AFFIRMATION OF OFFICE
A person who is appointed or re-appointed after the commencement of this section as a member shall, before proceeding to discharge the duties of his or her office, take before the Governor-General, a Justice of the High Court or a Judge of another federal court or of the Supreme Court of a State or Territory an oath or affirmation in accordance with the form in Schedule 2.
History
S 10B inserted by No 26 of 1982, s 14; amended by No 175 of 1995, Sch 3.
SECTION 11
OUTSIDE EMPLOYMENT
11(1)
A full-time member must not engage in paid employment outside the duties of his or her office without the President's approval.
11(2)
A part-time member must not engage in any paid employment that, in the President's opinion, conflicts or may conflict with the proper performance of his or her duties.
11(3)
This section does not apply in relation to the holding by a member of an office or appointment in the Defence Force.
History
S 11 substituted by No 60 of 2015, s 3 and Sch 1 item 26, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 11 formerly read:
SECTION 11 OUTSIDE EMPLOYMENT
11(1)
Subject to sub-section (2), 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.
History
S 11(1) substituted by No 26 of 1982, s 15; amended by No 175 of 1995, Sch 3.
11(2)
Sub-section (1) does not apply in relation to the holding by a full-time member of an office or appointment in the Defence Force.
History
S 11(2) substituted by No 26 of 1982, s 15.
SECTION 12
LEAVE OF ABSENCE
12(1)
A full-time member has the recreation leave entitlements that are determined by the Remuneration Tribunal.
12(2)
The President may grant a full-time member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
12(3)
The President may grant leave of absence to a part-time member on the terms and conditions that the President determines.
History
S 12 substituted by No 60 of 2015, s 3 and Sch 1 item 26, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 12 formerly read:
SECTION 12 LEAVE OF ABSENCE
12(1)
A full-time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.
History
S 12(1) substituted by No 122 of 1991, Sch; amended by No 146 of 1999, s 2, Sch 1[41].
12(2)
The Minister may grant a full-time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.
History
S 12(2) substituted by No 122 of 1991, Sch.
SECTION 13
TERMINATION OF APPOINTMENT (NOT JUDGES)
13(1)
The Governor-General may terminate the appointment of a member if an address praying for the termination, on one of the following grounds, is presented to the Governor-General by each House of the Parliament in the same session:
(a)
proved misbehaviour;
(b)
the member is unable to perform the duties of his or her office because of physical or mental incapacity.
13(2)
The Governor-General may terminate the appointment of a member if:
(a)
the member:
(i)
becomes bankrupt; or
(ii)
takes steps to take the benefit of any law for the relief of bankrupt or insolvent debts; or
(iii)
compounds with one or more of his or her creditors; or
(iv)
makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b)
the member is a full-time member and is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c)
the member is a part-time member and is unavailable, except on leave of absence, to perform the duties of his or her office for more than 3 months; or
(d)
the member contravenes section
11 (outside employment); or
(e)
the member fails, without reasonable excuse, to comply with section
14 (disclosure of interests).
13(3)
The Governor-General may terminate the appointment of a member assigned to the Migration and Refugee Division if the member has a direct or indirect pecuniary interest in an immigration advisory service.
13(4)
The appointment of a member may not be terminated other than in accordance with this section.
13(5)
This section does not apply in relation to a member who is a Judge.
History
S 13(9) amended by No 26 of 2008; substituted by No 58 of 1977 and No 94 of 1992.
SECTION 14
DISCLOSURE OF INTERESTS BY MEMBERS
14(1)
If a member who is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding before the Tribunal has a conflict of interest in relation to the proceeding, the member:
(a)
must disclose the matters giving rise to that conflict:
(i)
to the parties; and
(ii)
to the President (or, if the member is the President, the Minister); and
(b)
must not take part in the proceeding or exercise any powers in relation to the proceeding unless the parties and the President (or, if the member is the President, the Minister) consent.
14(2)
For the purposes of this section, a member has a conflict of interest in relation to a proceeding before the Tribunal if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to the proceeding.
14(3)
If the President becomes aware that a member who is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding before the Tribunal has a conflict of interest in relation to the proceeding, the President:
(a)
may, if the President considers it appropriate, direct the member not to take part in the proceeding; and
(b)
if the President does not give such a direction - must ensure that the member discloses the matters giving rise to the conflict to the parties.
History
S 14 substituted by No 60 of 2015, s 3 and Sch 1 item 26, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 14 formerly read:
SECTION 14 DISCLOSURE OF INTERESTS BY MEMBERS
14(1)
Where a member is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding and he or she has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her functions in relation to that proceeding-
(a)
he or she shall disclose the interest to the parties to the proceeding; and
(b)
except with the consent of all the parties to the proceeding, he or she shall not take part in the proceeding or exercise any powers in relation to the review by the Tribunal of the decision to which the proceeding relates.
History
S 14(1) amended by No 175 of 1995, Sch 3.
14(2)
Where the President becomes aware that a member is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding and that the member has in relation to that proceeding such an interest as is mentioned in subsection (1)-
(a)
if the President considers that the member should not take part, or should not continue to take part, in the proceeding - he or she shall give a direction to the member accordingly; or
(b)
in any other case - he or she shall cause the interest of the member to be disclosed to the parties to the proceeding.
History
S 14(2) amended by No 175 of 1995, Sch 3.
SECTION 15
RESIGNATION
15(1)
[Resignation in writing]
A member may resign his or her appointment by giving the Governor-General a written resignation.
15(2)
[When resignation takes effect]
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.
History
S 15 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 15 amended by No 175 of 1995.
16
(Repealed) SECTION 16 APPLICATION OF JUDGES' PENSIONS ACT
(Repealed by No 38 of 2005)
History
S 16 repealed by No 38 of 2005. No 38 of 2005, Sch 1[34], provides:
Transitional - section 16 of the
Administrative Appeals Tribunal Act 1975
34(1)
This item applies if a person was appointed as a presidential member (within the meaning of section 16 of the Administrative Appeals Tribunal Act 1975) before the commencement of this item.
34(2)
Despite the repeal of section 16 of the Administrative Appeals Tribunal Act 1975 by this Schedule, that section continues to apply after the commencement of this item, in relation to the person, as if that repeal had not happened.
For further transitional provisions see note under s 2A.
17-18
(Repealed) SECTIONS 17-18
(Repealed by No 72 of 1984)
PART III - ORGANISATION OF THE TRIBUNAL
History
History
S 21AB(3) amended by No 108 of 2014.
Pt III substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Pt III formerly read:
PART III - ORGANISATION OF THE TRIBUNAL
Division 1 - Divisions of the Tribunal
SECTION 19 DIVISIONS OF THE TRIBUNAL
19(1)
The Tribunal shall exercise powers conferred on it in Divisions of the Tribunal in accordance with this section.
19(2)
Divisions of the Tribunal.
The Divisions of the Tribunal are as follows:
(a)
General Administrative Division;
(b)
Medical Appeals Division;
(baaa)
National Disability Insurance Scheme Division;
(baa)
Security Appeals Division;
(ba)
Taxation Appeals Division;
(c)
Valuation and Compensation Division; and
(d)
such other Divisions as are prescribed.
History
S 19(2) amended by No 44 of 2013, Sch 2 items 1-2, by inserting para (baaa) and omitting "and" in para (c), effective 29 May 2013.
S 19(2) amended by No 48 of 1986, s 4; by No 175 of 1995, s 3, Sch 1.
19(3)
Assignment of non-presidential member to Division or Divisions.
The Minister must assign a non-presidential member to a particular Division or Divisions of the Tribunal and may, with the consent of the member but not otherwise, vary the assignment.
History
S 19(3) substituted by No 38 of 2005. No 38 of 2005, Sch 1[37], provides:
Transitional - subsection 19(3) of the
Administrative Appeals Tribunal Act 1975
37(1)
This item applies if the assignment of a non-presidential member to aparticular Division or Divisions of the Tribunal was in force immediately before the commencement of this item.
37(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Minister had, immediately after that commencement, assigned the member to that Division or those Divisions under subsection 19(3) of that Act.
37(3)
To avoid doubt, the Minister is not bound by the member's instrument of appointment in exercising a power conferred by subsection 19(3) of the Administrative Appeals Tribunal Act 1975.
For further transitional provisions see note under s 2A.
19(3AA)
Before the Minister exercises a power conferred by subsection (3), the Minister must consult the President.
History
S 19(3AA) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
19(3A)
Taxation Appeals Division.
A member shall not be assigned to the Taxation Appeals Division unless the Minister has consulted with the Treasurer in relation to the assignment of the member.
History
S 19(3A) inserted by No 48 of 1986.
19(3B)
Security Appeals Division.
A non-presidential member must not be assigned to the Security Appeals Division if he or she is, or has been, the Director-General of Security or an ASIO employee or ASIO affiliate.
History
S 19(3B) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting "an ASIO employee or ASIO affiliate" for "an officer, employee or agent of the Australian Security Intelligence Organisation", effective 30 October 2014.
S 19(3B) inserted by No 175 of 1995; amended by No 161 of 1999.
National Disability Insurance Scheme Division
19(3C)
A member must not be assigned to the National Disability Insurance Scheme Division unless the Minister has consulted with the Minister responsible for administering the National Disability Insurance Scheme Act 2013 in relation to the assignment of the member.
History
S 19(3C) inserted by No 44 of 2013, Sch 2 item 3, effective 29 May 2013.
19(3D)
A non-presidential member must not be assigned to the National Disability Insurance Scheme Division unless the Minister is satisfied that the non presidential member:
(a)
has training, knowledge or experience relating to disability; or
(b)
has other relevant knowledge or experience that will assist the non-presidential member in considering matters relating to the National Disability Insurance Scheme.
History
S 19(3D) inserted by No 44 of 2013, Sch 2 item 3, effective 29 May 2013.
19(4)
Exercise of powers.
A non-presidential member shall exercise, or participate in the exercise of, the powers of the Tribunal only in the Division or Divisions of the Tribunal to which he or she is assigned.
History
S 19(4) amended by No 175 of 1995.
19(5)
Validity.
The foregoing provisions of this section do not affect the validity of any exercise of powers by the Tribunal otherwise than in accordance with those provisions.
19(6)
Certain powers to be exercised in Security Appeals Division.
The following powers conferred on the Tribunal:
(a)
the powers of review in respect of applications made under section 54 of the Australian Security Intelligence Organisation Act 1979;
(b)
the power under the Archives Act 1983 to review a decision of the Australian Archives in respect of access to a record of the Australian Security Intelligence Organisation;
may be exercised by the Tribunal only in the Security Appeals Division.
History
S 19(6) inserted by No 175 of 1995; amended by No 161 of 1999.
Division 2 - Arrangement of business of the Tribunal
SECTION 20 ARRANGEMENT OF BUSINESS
20(1)
Subject to this Act and to the regulations, the President is responsible for ensuring the expeditious and efficient discharge of the business of the Tribunal.
History
S 20(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 20(1) substituted by No 31 of 1993.
20(1A)
(Repealed by No 38 of 2005)
History
S 20(1A) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
20(2)
President may give directions.
The President may give directions as to:
(a)
the operations of the Tribunal generally; and
(b)
the operations of the Tribunal at a particular place; and
(c)
the procedure of the Tribunal generally; and
(d)
the procedure of the Tribunal at a particular place; and
(e)
the conduct of reviews by the Tribunal.
History
S 20(2) substituted by No 38 of 2005. No 38 of 2005, Sch 1[41], provides:
Transitional - subsection 20(2) of the
Administrative Appeals Tribunal Act 1975
41(1)
This item applies to a direction if:
(a)
the direction was given for the purposes of paragraph 20(1A)(d) or (e) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
41(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
S 20(2) substituted by No 58 of 1977; amended by No 175 of 1995; substituted by No 38 of 2005.
20(3)
Subsection (2) does not limit subsection (1).
History
S 20(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 20(3) substituted by No 58 of 1977.
20(4)
The President may give directions as to:
(a)
the arrangement of the business of the Tribunal; and
(b)
the places at which the Tribunal may sit.
History
S 20(4) inserted by No 38 of 2005. No 38 of 2005, Sch 1[42], provides:
Transitional - subsection 20(4) of the
Administrative Appeals Tribunal Act 1975
42(1)
This item applies to a direction if:
(a)
the direction was given for the purposes of paragraph 20(1A)(a) or (c) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
42(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20(4) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
20(5)
Subsection (4) does not limit subsection (1).
History
S 20(5) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
20(6)
The President may at any time vary or revoke a direction under this section.
History
S 20(6) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 20A
SECTION 20A PLACES OF SITTING
20A
Sittings of the Tribunal are to be held from time to time as required at the places at which the Registries of the Tribunal are established, but the Tribunal may sit at any place in Australia or in an external Territory.
History
S 20A inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Division 3 - Constitution and reconstitution of the Tribunal
SECTION 20B PRESIDENT MAY GIVE DIRECTIONS AS TO CONSTITUTION OF TRIBUNAL
20B(1)
The President may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding.
Note: See also section 23B.
20B(2)
If the President gives a direction as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding, he or she may at any time after the giving of the direction and before the commencement of the hearing of the proceeding:
(a)
revoke the direction; and
(b)
give a further direction under subsection (1) as to the persons who are to constitute the Tribunal for the purposes of the proceeding.
History
S 20B inserted by No 38 of 2005. No 38 of 2005, Sch 1[45], provides:
Transitional - section 20B of the
Administrative Appeals Tribunal Act 1975
45(1)
This item applies to a direction if:
(a)
the direction was given for the purposes of paragraph 20(1A)(b) or subsection 20(2) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
45(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20B(1) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
SECTION 21 CONSTITUTION OF TRIBUNAL FOR EXERCISE OF POWERS
21(1AAA)
Scope.
This section does not apply in relation to proceedings in the Security Appeals Division.
History
S 21(1AAA) inserted by No 175 of 1995.
21(1)
Constitution of Tribunal.
Subject to subsections (1AA) and (1A) and to any other provision made in this Act or in any other enactment with respect to the constitution of the Tribunal in relation to a particular proceeding, the Tribunal is, for the purposes of a proceeding, to be constituted by not more than 3 members.
History
S 21(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 21(1) substituted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 175 of 1995.
21(1AA)
The Tribunal as constituted for the purposes of a proceeding must not include more than one presidential member who is a judge.
History
S 21(1AA) inserted by No 175 of 1995.
21(1AB)
(Repealed by No 38 of 2005)
History
S 21(1AB) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
21(1A)
For the purpose of the exercise of the powers of the Tribunal under subsection 29(4), (7) or (9) or 30(1A), section 31, subsection 34D(1), 35(2) or 37(1A), (1C) or (2), section 38, subsection 41(2) or (3), section 42A or 42B, subsection 42C(1) or section 69A or 69B, the Tribunal shall be constituted-
(a)
where the hearing of the relevant proceeding has not commenced - by a presidential member or an authorised member; or
(b)
where the hearing of the relevant proceeding has commenced - by the members by whom the Tribunal is constituted for the purposes of that proceeding.
History
S 21(1A) amended by No 38 of 2005. No 38 of 2005, Sch 1[51], provides:
Transitional - paragraph 21(1A)(a) of the
Administrative Appeals Tribunal Act 1975
The amendment made by item 50 does not apply to a proceeding if, immediately before the commencment of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.
For further transitional provisions see note under s 2A.
S 21(1A) inserted by No 58 of 1977; amended by No 143 of 1979; No 26 of 1982; No 31 of 1993; No 175 of 1995.
21(2)
Where, before the commencement of the hearing of a proceeding before the Tribunal, there is lodged with the Tribunal, as prescribed, a notice, signed by or on behalf of all the parties, stating that they have agreed that the proceeding should be dealt with by the Tribunal constituted by a presidential member alone, the Tribunal may, if the President directs under section 20B, be constituted for the purposes of that proceeding by a presidential member alone.
History
S 21(2) amended by No 38 of 2005. No 38 of 2005, Sch 1[54], provides:
Transitional - subsection 21(2) of the
Administrative Appeals Tribunal Act 1975
54(1)
This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member, for the purposes of the proceeding, in accordance with subsection 21(2) of the Administrative Appeals Tribunal Act 1975.
54(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member, for the purposes of the proceeding, in accordance with a direction given under section 20B of that Act.
54(3)
Subitem (2) does not prevent the reconstitution of the Tribunal.
For further transitional provisions see note under s 2A.
21(3)
(Repealed by No 38 of 2005)
History
S 21(3) repealed by No 38 of 2005. No 38 of 2005, Sch 1[56], provides:
Transitional - subsections 21(3) and (4) of the
Administrative Appeals Tribunal Act 1975
The amendment made by item 55 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.
For further transitional provisions see note under s 2A.
21(4)
(Repealed by No 38 of 2005)
History
S 21(4) repealed by No 38 of 2005. For transitional provisions see note under s 21(3). For further transitional provisions see note under s 2A.
SECTION 21AA CONSTITUTION OF SECURITY APPEALS DIVISION - GENERAL
21AA(1)
Scope.
This section applies to a proceeding in the Security Appeals Division (other than a proceeding to which section 21AB applies) but has effect subject to subsection 65(2) of the Australian Security Intelligence Organisation Act 1979.
History
S 21AA(1) amended by No 99 of 2009, s 3 and Sch 3 item 1, by inserting "(other than a proceeding to which section 21AB applies)" after "Security Appeals Division", effective 7 October 2009.
S 21AA(1) inserted by No 175 of 1995; amended by No 161 of 1999.
21AA(2)
Constitution of Security Appeals Division.
Subject to this section, the Security Appeals Division is to be constitutedby a presidential member and 2 other members.
History
S 21AA(2) inserted by No 175 of 1995.
21AA(3)
When presidential member must not participate.
A presidential member must not participate in the proceeding if he or she is, or has been, the Director-General of Security or an ASIO employee or ASIO affiliate.
History
S 21AA(3) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting "an ASIO employee or ASIO affiliate" for "an officer, employee or agent of the Australian Security Intelligence Organisation", effective 30 October 2014.
S 21AA(3) inserted by No 175 of 1995; amended by No 161 of 1999.
21AA(4)
Presidential member to preside.
The presidential member referred to in subsection (2) is to preside at a hearing of the proceeding.
History
S 21AA(4) inserted by No 175 of 1995.
21AA(5)
Qualifications.
If the proceeding is a review of a security assessment, at least one of the 2 other members referred to in subsection (2) must:
(a)
if the matter to which the assessment related concerns employment or proposed employment in the Australian Public Service - be a former member of that Service; or
(b)
if the matter to which the assessment related concerns service or proposed service in the Defence Force - be a former member of that Force; or
(c)
if the matter to which the assessment related concerns the Australian Citizenship Act 2007, the Migration Act 1958 or the Australian Passports Act 2005 - be a person with knowledge of, or experience in relation to, the needs and concerns of people who are or have been immigrants; or
(d)
if the matter to which the assessment related concerns employment under Commonwealth contractors - be a person with experience in relation to such employment; or
(e)
in any other case - be a person with knowledge of, or experience in relation to, matters of the kind to which the assessment related.
History
S 21AA(5) amended by No 21 of 2007, s 3 and Sch 1 item 1, by substituting "Australian Citizenship Act 2007" for "Australian Citizenship Act 1948", effective 1 July 2007.
No 21 of 2007, s 3 and Sch 3 item 15 contained the following transitional provision:
15 Transitional -
Administrative Appeals Tribunal Act 1975
If, on or after the commencement day, there are proceedings of the Administrative Appeals Tribunal to which paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 applies and which relate to the old Act, the amendment made by item 1 of Schedule 1 is, for the purposes of those proceedings, taken not to have been made.
S 21AA(5) amended by No 7 of 2005; inserted by No 175 of 1995.
21AA(6)
What happens if member ceases to be available.
If, before the proceeding has been completed, one of the members constituting the Division for the purposes of the proceeding has ceased to be available for the purposes of the proceeding:
(a)
the proceeding is to be reheard by the Division as reconstituted in accordance with this section; and
(b)
on the rehearing, the members of the Division may have regard to any record of the proceeding in the Division as previously constituted, including a record of any evidence taken in the proceeding.
History
S 21AA(6) inserted by No 175 of 1995.
SECTION 21AB CONSTITUTION OF SECURITY APPEALS DIVISION - PROCEEDINGS TO REVIEW CERTAIN DECISIONS UNDER THE
ARCHIVES ACT 1983
Scope
21AB(1)
This section applies to a proceeding in the Security Appeals Division in relation to a review of a decision of the Australian Archives under the Archives Act 1983 refusing to grant access to a record in accordance with an application under section 40 of that Act, being a record that is:
(a)
a record of the Australian Security Intelligence Organisation; and
(b)
claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) of that Act.
Constitution of Security Appeals Division
21AB(2)
Subject to this section, the Security Appeals Division is to be constituted by:
(a)
3 presidential members; or
(b)
a presidential member alone.
When presidential member must not participate
21AB(3)
A presidential member must not participate in the proceeding if he or she is, or has been, the Director-General of Security or an ASIO employee or ASIO affiliate.
History
S 21AB(3) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting "an ASIO employee or ASIO affiliate" for "an officer, employee or agent of the Australian Security Intelligence Organisation", effective 30 October 2014.
Reconstitution of Division at the request of a party
21AB(4)
At any time during the hearing of a proceeding before the Division, constituted by a presidential member alone, a party to the proceeding may apply to the Division as constituted for the purposes of the proceeding requesting that the Division be reconstituted for the purposes of the proceeding.
21AB(5)
If an application is made under subsection (4), the Division as constituted for the purposes of the proceeding must, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.
21AB(6)
The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Division as constituted for the purposes of the proceeding be reconstituted by 3 presidential members.
21AB(7)
If a direction is given under subsection (6), the Division as reconstituted in accordance with the direction must continue the proceeding and may either:
(a)
complete the proceeding; or
(b)
at any time remit the proceeding to the Division as previously constituted for completion by the Division as previously constituted.
21AB(8)
If the Division as reconstituted remits a proceeding to the Division as previously constituted, the Division as reconstituted may give directions in relation to the proceeding to the Division as previously constituted and the Division as previously constituted must, in making a decision on the review, comply with those directions.
Member presiding
21AB(9)
At the hearing of a proceeding before the Division at which the Division is constituted for the purposes of the proceeding by presidential members:
(a)
if the President is a member of the Division as so constituted - he or she is to preside; or
(b)
if the President is not a member of the Division as so constituted, but only one presidential member who is a Judge is a member of the Division as so constituted - that presidential member is to preside; or
(c)
if the President is not a member of the Division as so constituted, but 2 or more presidential members who are Judges are members of the Division as so constituted - the senior Judge is to preside; or
(d)
if neither the President, nor a Judge is a member of the Division as so constituted - a Deputy President of the Division as so constituted who is directed by the President to do so is to preside.
What happens if member ceases to be available
21AB(10)
If, before the proceeding has been completed, one of the members constituting the Division for the purposes of the proceeding has ceased to be available for the purposes of the proceeding the proceeding is to be reheard by the Division as reconstituted in accordance with this section.
Regard may be had to record of previous proceeding
21AB(11)
If the Division:
(a)
is reconstituted in accordance with a direction under subsection (6); or
(b)
is reconstituted because proceedings are remitted under paragraph (7)(b) to the Division as previously constituted; or
(c)
is reconstituted under subsection (10) because a member ceases to be available;
the members of the Division may have regard to any record of the proceeding in the Division as previously constituted, including a record of any evidence taken in the proceeding.
History
S 21AB inserted by No 99 of 2009, s 3 and Sch 3 item 2, effective 7 October 2009.
SECTION 21A RECONSTITUTION OF TRIBUNAL AT THE REQUEST OF A PARTY
21A(1AA)
Scope.
This section does not apply in relation to proceedings in the Security Appeals Division.
History
S 21A(1AA) inserted by No 175 of 1995.
21A(1)
Party may request reconstitution of Tribunal.
At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.
History
S 21A(1) inserted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 34 of 1997.
21A(2)
Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.
History
S 21A(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 21A(2) inserted by No 58 of 1977; amended by No 175 of 1995.
21A(3)
The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:
(a)
adding one or more members; or
(b)
removing one or more members; or
(c)
substituting one or more other members;
(or any combination of these).
History
S 21A(3) amended by No 38 of 2005. No 38 of 2005, Sch 1[59], provides:
Transitional - subsection 21A(3) of the
Administrative Appeals Tribunal Act 1975
The amendment of subsection 21A(3) of the Administrative Appeals Tribunal Act 1975 made by this Schedule does not affect the continuity of a direction that was given under that subsection before the commencement of this item.
For further transitional provisions see note under s 2A.
S 21A(3) inserted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 175 of 1995.
21A(4)
Where a direction is so given, the Tribunal as reconstituted in accordance with the direction shall continue the proceeding and may either -
(a)
complete the proceeding; or
(b)
at any time remit the proceeding to the Tribunal as previously constituted for completion by the Tribunal as previously constituted.
Note:
Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.
History
S 21A(4) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 21A(4) inserted by No 58 of 1977.
21A(5)
Where the Tribunal as reconstituted so remits a proceeding to the Tribunal as previously constituted, the Tribunal as reconstituted may give directions in relation to the proceeding to the Tribunal as previously constituted and the Tribunal as previously constituted shall, in making a decision on the review, comply with those directions.
History
S 21A(5) inserted by No 58 of 1977.
21A(6)
(Repealed by No 38 of 2005)
History
S 21A(6) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
21A(7)
Where, by virtue of subsection (4), a proceeding is remitted by the Tribunal as reconstituted to the Tribunal as previously constituted, the Tribunal as previously constituted may, for the purposes of that proceeding, have regard to any record of the proceeding before the Tribunal as reconstituted including a record of any evidence taken under the proceeding.
History
S 21A(7) inserted by No 58 of 1977.
SECTION 22 MEMBER PRESIDING
22(1AA)
Scope.
This section does not apply in relation to proceedings in the Security Appeals Division.
History
S 22(1AA) inserted by No 175 of 1995, s 3, Sch 1.
22(1)
Multiple member Tribunal - who is to preside.
At the hearing of a proceeding before the Tribunal atwhich the Tribunal is constituted for the purposes of the proceeding by more than one member-
(a)
if the President is a member of the Tribunal as so constituted - he or she shall preside;
(aa)
if the President is not a member of the Tribunal as so constituted, but a presidential member who is a Judge is a member of the Tribunal as so constituted - that presidential member shall preside;
(ab)
if a presidential member who is a Judge is not a member of the Tribunal as so constituted but 2 or more Deputy Presidents are members of the Tribunal as so constituted - one of those Deputy Presidents who is directed by the President to do so is to preside;
(b)
if a presidential member who is a Judge is not a member of the Tribunal as so constituted, but a Deputy President is a member of the Tribunal as so constituted - that Deputy President shall preside; or
(c)
if the Tribunal is constituted only by non-presidential members-
(i)
where one only of those non-presidential members is a senior member - he or she shall preside;
(ii)
where 2 or more of those non-presidential members are senior members - one of those senior members who is directed by the President to do so shall preside; or
(iii)
where none of those non-presidential members is a senior member - one of those non-presidential members who is directed by the President to do so shall preside.
History
S 22(1) substituted by No 58 of 1977, s 13; amended by No 26 of 1982, s 19; No 31 of 1993, s 7; No 175 of 1995, Sch 3.
22(2)
Reconstituted Tribunal - who is to preside.
In a case where a direction is given under subsection 20B(2), section 21A, subsection 23(3) or (4) or section 23A reconstituting the Tribunal for the purposes of a proceeding, any necessary direction may be given under this section as to the member who is to preside at the hearing of the proceeding by the Tribunal as reconstituted.
History
S 22(2) substituted by No 58 of 1977, s 13.
S 22(2) amended by No 38 of 2005. No 38 of 2005, Sch 1[65], provides:
Transitional - subsection 22(2) of the
Administrative Appeals Tribunal Act 1975
The amendments of subsection 22(2) of the Administrative Appeals Tribunal Act 1975 made by this Schedule do not affect the continuity of a direction that was given under that subsection before the commencement of this item.
For further transitional provisions see note under s 2A.
SECTION 23 RECONSTITUTION OF TRIBUNAL IF MEMBER IS UNAVAILABLE
23(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
History
S 23(1) substituted by No 38 of 2005. No 38 of 2005, Sch 1[67], provides:
Transitional - paragraph 23(1)(a) of the
Administrative Appeals Tribunal Act 1975
67(1)
This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member or members, for the purposes of the proceeding, in accordance with paragraph 23(1)(a) of the Administrative Appeals Tribunal Act 1975.
67(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member or those members, for the purposes of the proceeding, in accordance with a direction given under subsection 20B(1) of that Act.
67(3)
Subitem (2) does not prevent the reconstitution of the Tribunal.
For further transitional provisions see note under s 2A.
23(2)
This section applies if:
(a)
the hearing of a proceeding has commenced or is completed; and
(b)
a member (the
unavailable member
) who constitutes, or is one of the members who constitute, the Tribunal for the purposes of the proceeding:
(i)
stops being a member; or
(ii)
for any reason, is not available for the purposes of the proceeding; or
(iii)
is directed by the President not to continue to take part in the proceeding.
23(3)
Single member Tribunal.
If the unavailable member constitutes the Tribunal, the President must direct another member or members to constitute the Tribunal for the purposes of completing the proceeding.
23(4)
Multiple member Tribunal.
If the unavailable member is one of the members who constitute the Tribunal, the President must:
(a)
direct the remaining member or members to constitute the Tribunal for the purposes of completing the proceeding; or
(b)
direct a member or members to constitute the Tribunal for the purposes of completing the proceeding.
Note: See also section 23B.
23(5)
A member who is the subject of a direction under paragraph (4)(b) may be the remaining member or one of the remaining members.
23(6)
Member who stops being a member and becomes a member again.
For the purposes of this section, a member who:
(a)
stops being a member; and
(b)
at a later time becomes a member again;
is taken, from that later time, to be another member.
23(7)
Reconstituted Tribunal must continue proceeding.
The Tribunal as reconstituted in accordance with a direction under subsection (3) or (4) must continue the proceeding.
Note: Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.
23(8)
Limitations on President's powers to give directions.
The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1).
23(9)
The President must not give a direction under subparagraph (2)(b)(iii) unless:
(a)
the President is satisfied that the direction is in the interests of justice; and
(b)
the President has consulted the member concerned.
23(10)
The President must not give a direction under subsection (3) or (4) unless the President has consulted the parties to the proceeding.
23(11)
The President must not give a direction under paragraph (4)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of completing the proceeding unless:
(a)
the President is satisfied that the direction is in the interests of justice; and
(b)
the President has consulted the remaining member concerned.
23(12)
In determining whether a direction covered by subsection (9) or (11) is in the interests of justice, the President must have regard to the objective of proceedings that are conducted in a manner that is fair, just, economical, informal and quick.
History
S 23 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 23A RECONSTITUTION OF TRIBUNAL TO ACHIEVE EXPEDITIOUS AND EFFICIENT CONDUCT OF PROCEEDING
23A(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
23A(2)
Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding.
If the hearing of a proceeding has commenced or is completed, the President may direct that the Tribunal as constituted for the purposes of a particular proceeding be reconstituted by:
(a)
adding one or more members; or
(b)
removing one or more members; or
(c)
substituting one or more other members;
(or any combination of these) if the President thinks that the reconstitution is in the interests of achieving the expeditious and efficient conduct of the proceeding.
Note: See also section 23B.
23A(3)
Reconstituted Tribunal must continue proceeding.
The Tribunal as constituted in accordance with a direction under subsection (2) must continue the proceeding.
Note: Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.
23A(4)
Limitations on President's power to give direction.
The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1).
23A(5)
The President must not give a direction under this section unless the President has consulted the parties to the proceeding.
History
S 23A substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 23A inserted by No 175 of 1995.
SECTION 23B
SECTION 23B MATTERS TO WHICH THE PRESIDENT MUST HAVE REGARD IN CONSTITUTING THE TRIBUNAL
23B
In giving a direction under section 20B, 23 or 23A as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding, the President must have regard to:
(a)
the degree of public importance or complexity of the matters to which that proceeding relates; and
(b)
the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and
(c)
the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and
(d)
the degree of financial importance of the matters to which that proceeding relates; and
(e)
if that proceeding relates to the review of a decision made in the exercise of powers conferred by a particular enactment - the purpose or object underlying the enactment (whether or not that purpose or object is expressly stated); and
(f)
the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have knowledge, expertise or experience in relation to the matters to which that proceeding relates; and
(g)
any notice given under subsection 21(2) by the parties to that proceeding; and
(h)
such other matters (if any) as the President considers relevant.
History
S 23B substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 23B inserted by No 175 of 1995.
SECTION 23C LIMITATION ON COMPOSITION OF RECONSTITUTED TRIBUNAL
23C(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
23C(2)
Limitation on composition of reconstituted Tribunal.
A direction relating to the reconstitution of the Tribunal must not be given unless the member or members who constitute the reconstituted Tribunal could have constituted the Tribunal for the purposes of the proceeding if the proceeding had commenced immediately before the direction was given.
History
S 23C inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 23D TRIBUNAL MAY HAVE REGARD TO RECORD OF PREVIOUS PROCEEDING
23D(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
23D(2)
Tribunal may have regard to record of previous proceeding.
If the Tribunal is reconstituted, the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
23D(3)
Subsection (2) does not apply in a case where the Tribunal is reconstituted following an order under subsection 44(4) remitting a case to be heard and decided again.
Note 1: Subsection 44AA(9) applies subsection 44(4) to appeals transferred to the Federal Circuit Court of Australia.
Note 2: Paragraph 44(6)(b) deals with a proceeding reheard by the Tribunal following an appeal.
History
S 23D amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" wherever occurring, effective 12 April 2013.
S 23D inserted by No 38 of 2005. No 38 of 2005, Sch 1[68], provides:
Transitional - section 23D of the
Administrative Appeals Tribunal Act 1975
Section 23D of the Administrative Appeals Tribunal Act 1975 applies in relation to a reconstitution of the Tribunal before or after the commencement of this item.
For further transitional provisions see note under s 2A.
SECTION 23E CONSTITUTION OF TRIBUNAL FOR REVIEW OF AMOUNT TAXED - GENERAL RULE
23E(1)
Scope.
This section applies to a proceeding (the
taxing review proceeding
) by way of an application to the Tribunal under subsection 69A(2) 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 by a party to another proceeding (the
substantive proceeding
).
23E(2)
Constitution of Tribunal for taxing review proceeding.
For the purposes of the taxing review proceeding, the Tribunal is to be constituted by:
(a)
if the Tribunal was constituted for the purposes of the substantive proceeding by a single member - that member; or
(b)
if the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members - the member who presided for the purposes of the substantive proceeding.
23E(3)
This section has effect subject to section 23F.
History
S 23E inserted by No 38 of 2005. No 38 of 2005, Sch 1[69], provides:
Application of amendment - sections 23E and 23F of the
Administrative Appeals Tribunal Act 1975
Sections 23E and 23F of the Administrative Appeals Tribunal Act 1975 do not apply to a taxing review proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the taxing review proceeding by one or more members.
For further transitional provisions see note under s 2A.
SECTION 23F CONSTITUTION OF TRIBUNAL FOR REVIEW OF AMOUNT TAXED - MEMBER UNAVAILABLE
23F(1)
Scope.
This section applies to a proceeding (the
taxing review proceeding
) by way of an application to the Tribunal under subsection 69A(2) 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 by a party to another proceeding (the
substantive proceeding
) if:
(a)
in a case where the Tribunal was constituted for the purposes of the substantive proceeding by a single member - that member (the
unavailable member
):
(i)
has stopped being a member; or
(ii)
for any reason, is not available to take part in the taxing review proceeding; or
(iii)
is directed by the President not to take part in the taxing review proceeding; or
(b)
in a case where the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members - the member (the
unavailable member
) who presided at the substantive proceeding:
(i)
has stopped being a member; or
(ii)
for any reason, is not available to take part in the taxing review proceeding; or
(iii)
is directed by the President not to take part in the taxing review proceeding.
23F(2)
Single member Tribunal.
If the unavailable member constituted the Tribunal for the purposes of the substantive proceeding, the President must direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.
23F(3)
Multiple member Tribunal.
If the unavailable member is one of the members who constituted the Tribunal for the purposes of the substantive proceeding, the President must:
(a)
direct the remaining member, or one of the remaining members, to constitute the Tribunal for the purposes of the taxing review proceeding; or
(b)
direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.
23F(4)
Member who stops being a member and becomes a member again.
For the purposes of this section, a member who:
(a)
stops being a member; and
(b)
at a later time becomes a member again;is taken, from that later time, to be another member.
23F(5)
Limitations on President's powers to give directions.
The President must not give a direction under subparagraph (1)(a)(iii) or (b)(iii) unless the President is satisfied that the direction is in the interests of justice.
23F(6)
The President must not give a direction under paragraph (3)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of the taxing review proceeding unless the President is satisfied that the direction is in the interests of justice.
History
S 23F inserted by No 38 of 2005. For application provision see note under s 23E. For transitional provisions see note under s 2A.
SECTION 24 (PLACES OF SITTING)
24
(Repealed by No 38 of 2005)
History
S 24 repealed by No 38 of 2005. For transitional provisions see note under s 2A.
Division 1 - Divisions of the Tribunal
History
Div 1 substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. For former wording, see note under Pt III heading.
Div 1 inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Subdivision A - Divisions of the Tribunal
History
Subdiv A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17A
17A
DIVISIONS OF THE TRIBUNAL
The Tribunal is to exercise powers conferred on it in the following Divisions:
(aa)
Freedom of Information Division;
(a)
General Division;
(b)
Migration and Refugee Division;
(c)
National Disability Insurance Scheme Division;
(d)
Security Division;
(e)
Social Services and Child Support Division;
(f)
Taxation and Commercial Division;
(g)
any other prescribed Division.
History
S 17A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17B
ALLOCATION OF BUSINESS TO DIVISIONS
17B(1)
The Tribunal's powers in relation to a proceeding before the Tribunal are to be exercised:
(a)
in the Division prescribed for such a proceeding; or
(b)
if no Division is prescribed for a proceeding - in the Division that the President directs.
17B(2)
Despite subsection
(1), the following powers of the Tribunal may be exercised by the Tribunal only in the Security Division:
(a)
the powers of review in respect of applications referred to in section 54 or 83B of the
Australian Security Intelligence Organisation Act 1979;
(b)
the power under the
Archives Act 1983 to review a decision of the Archives in respect of access to an exempt security record.
History
S 17B(2) amended by No 53 of 2023, s 3 and Sch 1 item 26, by substituting "an exempt security record" for "a record of the Australian Security Intelligence Organisation" in para (b), applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
S 17B(2) amended by No 33 of 2023, s 3 and Sch 1 item 15, by inserting "or 83B" in para (a), effective 1 July 2023.
History
S 17B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Subdivision B - Assignment of members to Divisions
History
Subdiv B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17C
ASSIGNMENT OF MEMBERS TO DIVISIONS
17C(1)
The Minister must assign a non-presidential member to one or more Divisions of the Tribunal.
17C(2)
Before the Minister does so, the Minister must consult the President in relation to the proposed assignment.
17C(3)
An assignment may only be varied with the consent of the member concerned.
17C(4)
A non-presidential member may exercise, or participate in the exercise of, powers of the Tribunal only in a Division to which the member is assigned.
17C(5)
If the assignment is made in writing, the assignment is not a legislative instrument.
History
S 17C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17CA
17CA
ASSIGNMENT TO FREEDOM OF INFORMATION DIVISION
The Minister must not assign a member to the Freedom of Information Division unless the Minister is satisfied that the member:
(a)
has training, knowledge or experience relating to the
Freedom of Information Act 1982; or
(b)
has other relevant knowledge or experience that will assist the member in considering matters relating to the operation of that Act.
History
S 17CA inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17D
17D
ASSIGNMENT TO MIGRATION AND REFUGEE DIVISION
Before assigning a member to the Migration and Refugee Division, the Minister must consult the Minister administering the
Migration Act 1958 in relation to the proposed assignment.
History
S 17D inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17E
ASSIGNMENT TO NATIONAL DISABILITY INSURANCE SCHEME DIVISION
17E(1)
Before assigning a member to the National Disability Insurance Scheme Division, the Minister must consult the Minister administering the
National Disability Insurance Scheme Act 2013 in relation to the proposed assignment.
17E(2)
The Minister must not assign a member to the National Disability Insurance Scheme Division unless the Minister is satisfied that the member:
(a)
has training, knowledge or experience relating to disability; or
(b)
has other relevant knowledge or experience that will assist the member in considering matters relating to the National Disability Insurance Scheme.
History
S 17E inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17F
17F
ASSIGNMENT TO SECURITY DIVISION
The Minister must not assign a member to the Security Division if the member is or has been:
(a)
the Director-General of Security; or
(b)
an ASIO employee or ASIO affiliate.
Note:
See also subsections 19E(3) and 19F(3).
History
S 17F inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17G
17G
ASSIGNMENT TO SOCIAL SERVICES AND CHILD SUPPORT DIVISION
Before assigning a member to the Social Services and Child Support Division, the Minister must consult the Minister administering the
Social Security (Administration) Act 1999 in relation to the proposed assignment.
History
S 17G inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17H
17H
ASSIGNMENT TO TAXATION AND COMMERCIAL DIVISION
Before assigning a member to the Taxation and Commercial Division, the Minister must consult the Treasurer in relation to the proposed assignment.
History
S 17H inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17J
17J
VALIDITY
Sections
17A to
17H do not affect the validity of any exercise of powers by the Tribunal.
History
S 17J inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Subdivision C - Division heads and Deputy Division heads
History
Subdiv C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17K
DIVISION HEADS
Assignment of Division heads
17K(1)
The Minister may assign a Deputy President to be the head of one or more Divisions of the Tribunal.
17K(2)
Before the Minister does so, the Minister must consult:
(a)
the President; and
(b)
any Minister required by sections
17D to
17H to be consulted in relation to the assignment of a member to the Division.
17K(3)
The Minister must not assign a person to be the head of a Division if the person could not be assigned to that Division because of section
17CA, subsection
17E(2) or section
17F.
17K(4)
If the assignment is made in writing, the assignment is not a legislative instrument.
17K(5)
An assignment under subsection (1):
(a)
must be for the duration, or the remaining duration, of the person's appointment as a Deputy President; and
(b)
may be varied, with the person's consent; and
(c)
cannot be revoked.
Function of Division heads
17K(6)
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.
Acting Division heads
17K(7)
The Minister may, by written instrument, assign a Deputy President or senior member to act as the head of a Division during any period, or during all periods, when the head of the Division is absent from duty or from Australia. Such an assignment is taken to be an appointment to act for the purposes of the
Acts Interpretation Act 1901.
History
S 17K inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17L
DEPUTY DIVISION HEADS
Assignment of deputy Division heads
17L(1)
The Minister may assign a Deputy President or a senior member to be a deputy head of one or more Divisions of the Tribunal.
History
S 17L(1) amended by No 3 of 2022, s 3 and Sch 1 item 50, by substituting "be a" for "be the", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
17L(2)
Before the Minister does so, the Minister must consult:
(a)
the President; and
(b)
any Minister required by sections
17D to
17H to be consulted in relation to the assignment of a member to the Division.
17L(3)
The Minister must not assign a person to be a deputy head of a Division if the person could not be assigned to that Division because of section
17CA, subsection
17E(2) or section
17F.
History
S 17L(3) amended by No 3 of 2022, s 3 and Sch 1 item 50, by substituting "be a" for "be the", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
17L(4)
If the assignment is made in writing, the assignment is not a legislative instrument.
17L(5)
An assignment under subsection
(1):
(a)
must be for the duration, or the remaining duration, of the person's appointment as a Deputy President or senior member; and
(b)
may be varied, with the person's consent; and
(c)
cannot be revoked.
Function of deputy Division heads
17L(6)
A deputy head of a Division has the function of assisting the head of the Division in the performance of the head of the Division's functions.
History
S 17L(6) amended by No 3 of 2022, s 3 and Sch 1 item 51, by substituting "A" for "The", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
Acting deputy Division heads
17L(7)
The Minister may, by written instrument, assign a member to act as a deputy head of a Division during any period, or during all periods, when a deputy head of the Division is absent from duty or from Australia or when there is no deputy head of the Division. Such an assignment is taken to be an appointment to act for the purposes of the
Acts Interpretation Act 1901.
History
S 17L(7) amended by No 3 of 2022, s 3 and Sch 1 items 52-54, by substituting "as a" for "as the", "when a" for "when the" and inserting "or when there is no deputy head of the Division", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
History
S 17L inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 2 - Arrangement of business of Tribunal
History
Div 2 substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. For former wording, see note under Pt III heading.
Div 2 inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 18A
18A
ARRANGEMENT OF BUSINESS
Subject to this Act and the regulations, the President is responsible for ensuring:
(a)
the expeditious and efficient discharge of the business of the Tribunal; and
(b)
that the Tribunal pursues the objective in section
2A.
History
S 18A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 18B
PRESIDENT'S DIRECTIONS - ARRANGEMENT OF BUSINESS
18B(1)
The President may give written directions in relation to any or all of the following:
(a)
the operations of the Tribunal;
(b)
the procedure of the Tribunal;
(c)
the conduct of reviews by the Tribunal;
(d)
the arrangement of the business of the Tribunal;
(e)
the places at which the Tribunal may sit.
18B(1A)
Before the President does so, the President must consult the head of any Division to which the direction would apply.
18B(2)
A failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal.
18B(3)
If the Tribunal deals with a proceeding in a way that complies with the directions given under this section, the Tribunal is not required to take any other action in dealing with the proceeding.
18B(4)
Without limiting subsection (1), directions may deal with matters relating to the provision of documents under sections
37 and
38AA, including any or all of the following matters:
(a)
documents that are or are not required to be lodged under paragraph
37(1)(b) and subsection
38AA(1);
(b)
documents that are or are not required to be lodged under subsection
37(1AAB) for the purposes of second reviews;
(c)
lodgement of documents for the purposes of subsection
37(1AB);
(d)
lodgement of additional copies of documents;
(e)
documents that are to be given to other parties under subsection
37(1AE).
History
S 18B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 18C
18C
SITTINGS OF TRIBUNAL
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.
History
S 18C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 3 - Constitution of Tribunal
History
Div 3 substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. For former wording, see note under Pt III heading.
Div 3 inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Subdivision A - General
History
Subdiv A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19A
PRESIDENT'S DIRECTIONS - CONSTITUTION
19A(1)
The President may give written directions in relation to:
(a)
the members who are to constitute the Tribunal for the purposes of a proceeding; and
(b)
if there is more than one such member - the member who is to preside.
19A(2)
Paragraph (1)(b) does not apply to a proceeding in the Security Division.
History
S 19A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19B
CONSTITUTION
19B(1)
The Tribunal as constituted for the purposes of a proceeding:
(a)
must not have more than 3 members, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding; and
(b)
must not have more than one member who is a Judge, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding.
History
S 19B(1) amended by No 3 of 2022, s 3 and Sch 1 item 29, by inserting ", unless another provision of this Act or another enactment provides otherwise in relation to the proceeding" in para (b), applicable in relation to the constituting (or reconstituting) of the Tribunal on or after 18 February 2022.
19B(2)
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.
19B(3)
Subsection
(2) does not apply in relation to the following powers:
(a)
the power under section
34J (circumstances in which hearing may be dispensed with);
(b)
the power under section
43 (Tribunal's decision on review);
(c)
the power under section
59 (advisory opinions);
(d)
a power that a provision of this Act (except this section) or another enactment requires or permits to be exercised by:
(i)
one or more persons specified by the provision; or
(ii)
the Tribunal constituted in a way specified by the provision.
Note:
Examples of powers covered by subparagraph (3)(d)(i) are the powers under sections 19A, 33 and 43AA. Examples of powers covered by subparagraph (3)(d)(ii) are the powers under section 19C.
19B(4)
This section does not apply in relation to a proceeding in the Security Division (see Subdivision
B).
History
S 19B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19C
CONSTITUTION FOR REVIEW OF TAXING OF COSTS
19C(1)
The Tribunal as constituted for the purposes of an application for review of a taxing of costs in another proceeding must be constituted by:
(a)
the member who constituted the Tribunal for the purposes of the other proceeding; or
(b)
if the Tribunal was constituted by more than one member for the purposes of the other proceeding - the member who presided for those purposes.
19C(2)
However, the Tribunal is to beconstituted as directed by the President if the member referred to in subsection (1):
(a)
has stopped being a member; or
(b)
is for any reason unavailable; or
(c)
has been directed by the President not to take part in the review.
19C(3)
The President must not give directions that would result in none of the members who constituted the Tribunal for the purposes of the other proceeding constituting the Tribunal for the purposes of the review, unless the President is satisfied that it is in the interests of justice to do so.
History
S 19C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19D
RECONSTITUTION
Before hearing commences
19D(1)
At any time before the hearing of a proceeding commences, the President may revoke a direction under subsection
19A(1) in relation to the proceeding and give another such direction.
After hearing commences
19D(2)
At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection
19A(1) in relation to the proceeding and give another such direction, if:
(a)
the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:
(i)
stops being a member; or
(ii)
is for any reason unavailable; or
(iii)
is directed by the President not to take part in the proceeding; or
(b)
the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.
19D(3)
Subsection
(2) does not apply in relation to a proceeding in the Security Division.
19D(4)
The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
President's directions
19D(5)
The President must not give a direction referred to in subparagraph
(2)(a)(iii) unless the President:
(a)
is satisfied that it is the interests of justice to do so; and
(b)
where it is reasonably practicable to do so, has consulted the member concerned.
History
S 19D(5) amended by No 3 of 2022, s 3 and Sch 1 item 33, by inserting "where it is reasonably practicable to do so," in para (b), applicable in relation to the giving of a direction referred to in subparagraph 19D(2)(a)(iii) on or after 18 February 2022.
19D(6)
The President must not, for the purposes of subsection
(2), revoke a direction under subsection
19A(1) in relation to a proceeding and give another such direction unless the President:
(a)
is satisfied that it is in the interests of justice to do so; and
(b)
where it is reasonably practicable to do so, has consulted each member who as a result ceases to be a member of the Tribunal as constituted for the purposes of the proceeding.
History
S 19D(6) amended by No 3 of 2022, s 3 and Sch 1 item 34, by inserting "where it is reasonably practicable to do so," in para (b),applicable in relation to a revocation under subsection 19D(2) on or after 18 February 2022, whether the direction was given under subsection 19A(1) before, on or after 18 February 2022.
19D(7)
In giving directions for the purposes of this section, the President must have regard to the Tribunal's objective in section
2A.
History
S 19D inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Subdivision B - Security Division
History
Subdiv B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19E
CONSTITUTION OF SECURITY DIVISION
Scope
19E(1)
This section applies to a proceeding in the Security Division other than a proceeding to which section
19F applies, but has effect subject to subsections 65(2) and 83F(6) of the
Australian Security Intelligence Organisation Act 1979.
History
S 19E(1) amended by No 33 of 2023, s 3 and Sch 1 item 16, by substituting "subsections 65(2) and 83F(6)" for "subsection 65(2)", effective 1 July 2023.
Constitution of Security Division
19E(2)
The Security Division is to be constituted by a presidential member and 2 other members.
19E(3)
The presidential member must not participate in the proceeding if the presidential member is or has been:
(a)
the Director-General of Security; or
(b)
an ASIO employee or ASIO affiliate.
Presiding member
19E(4)
The presidential member is to preside at a hearing of the proceeding.
Reconstitution
19E(5)
At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection
19A(1) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding is for any reason unavailable.
19E(6)
The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
History
S 19E inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19F
CONSTITUTION OF SECURITY DIVISION FOR PROCEEDINGS TO REVIEW CERTAIN ARCHIVES DECISIONS
Scope
19F(1)
This section applies to a proceeding in the Security Division in relation to a review of a decision of the Archives under the
Archives Act 1983 relating to an exempt security record.
History
S 19F(1) amended by No 53 of 2023, s 3 and Sch 1 item 27, by substituting "an exempt security record" for "a record of the Australian Security Intelligence Organisation", applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
Constitution of Security Division
19F(2)
The Security Division is to be constituted by:
(a)
3 presidential members; or
(b)
a presidential member alone.
19F(3)
If the proceeding relates to a record of the Australian Security Intelligence Organisation, a presidential member must not participate in the proceeding if the presidential member is or has been:
(a)
the Director-General of Security; or
(b)
an ASIO employee or ASIO affiliate.
History
S 19F(3) amended by No 53 of 2023, s 3 and Sch 1 item 28, by substituting "If the proceeding relates to a record of the Australian Security Intelligence Organisation, a presidential" for "A presidential", applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
Presiding member
19F(4)
If the Tribunal is constituted by 3 presidential members, the person who is to preside at a hearing of the proceeding is:
(a)
if the President is one of the members - the President; or
(b)
if the President is not one of the members but one or more Judges is - the most senior (or only) Judge; or
(c)
if paragraphs
(a) and
(b) do not apply - the Deputy President whom the President directs to preside.
Reconstitution
19F(5)
At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under paragraph
19A(1)(a) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding ceases to be available.
19F(6)
The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
History
S 19F inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
(Repealed) PART IIIAA - SMALL TAXATION CLAIMS TRIBUNAL
History
Pt IIIAA repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Pt IIIAA inserted by No 34 of 1997, Sch 1, item 3.
24AA
(Repealed) SECTION 24AA DEFINITIONS
(Repealed by No 60 of 2015)
History
S 24AA repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AA formerly read:
SECTION 24AA DEFINITIONS
24AA
In this Part:
determined amount
means:
(a)
subject to paragraph (b) - $5,000; or
(b)
if a higher amount is determined by the regulations - the higher amount.
lower application fee
means the fee payable in respect of an application for the review of a relevant taxation decision where subsection 24AC(1) applies in respect of the hearing and determination of the application.
relevant taxation decision
means:
(a)
a reviewable objection decision under Part
IVC of the
Taxation Administration Act 1953; or
(b)
a decision refusing a request for an extension of time within which to make a taxation objection under section
14ZL of the
Taxation Administration Act 1953.
standard application fee
means the fee payable in respect of an application for the review of a relevant taxation decision where subsection 24AC(1) does not apply in respect of the hearing and determination of the application.
S 24AA inserted by No 34 of 1997, Sch 1, item 3.
24AB
(Repealed) SECTION 24AB REVIEWS OF RELEVANT TAXATION DECISIONS TO BE HEARD BEFORE THE TAXATION APPEALS DIVISION
(Repealed by No 60 of 2015)
History
S 24AB repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AB formerly read:
SECTION 24AB REVIEWS OF RELEVANT TAXATION DECISIONS TO BE HEARD BEFORE THE TAXATION APPEALS DIVISION
24AB
Subject to this Part, an application for the review of a relevant taxation decision is to be heard in the Taxation Appeals Division of the Tribunal.
S 24AB inserted by No 34 of 1997, Sch 1, item 3.
24AC
(Repealed) SECTION 24AC SMALL TAXATION CLAIMS TRIBUNAL TO HEAR CERTAIN TAX DISPUTES
(Repealed by No 60 of 2015)
History
S 24AC repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AC formerly read:
SECTION 24AC SMALL TAXATION CLAIMS TRIBUNAL TO HEAR CERTAIN TAX DISPUTES
24AC(1)
Subject to section 24AD, if an application is made for the review of a relevant taxation decision and:
(a)
either:
(i)
the application states the amount that the applicant considers to be the amount of tax in dispute and the amount so stated is less than the determined amount; or
(ii)
the application does not state as mentioned in subparagraph (i) but, before the start of the hearing of the application, the applicant notifies the Tribunal in writing of the amount that the applicant considers to be the amount of tax in dispute and the amount so notified is less than the determined amount; or
(aa)
the decision relates to an application made by the applicant under section 340-5 in Schedule 1 to the Taxation Administration Act 1953; or
(b)
the decision is a decision refusing a request for an extension of time;
the Taxation Appeals Division, when hearing and determining the application, is to be known as the Small Taxation Claims Tribunal.
24AC(2)
A notification may be given to the Tribunal under subparagraph (1)(a)(ii) in respect of any application for the review of a relevant taxation decision, whether the application was made before, or is made after, the commencement of this section.
24AC(3)
Subject to section 24AD, if subparagraph (1)(a)(ii) applies, the applicant is entitled to a refund of so much of the application fee paid as exceeds the lower application fee.
S 24AC inserted by No 34 of 1997, Sch 1, item 3.
24AD
(Repealed) SECTION 24AD WHAT HAPPENS IF THE SMALL TAXATION CLAIMS TRIBUNAL CONSIDERS THAT THE TAX IN DISPUTE IS NOT LESS THAN THE DETERMINED AMOUNT
(Repealed by No 60 of 2015)
History
S 24AD repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AD formerly read:
SECTION 24AD WHAT HAPPENS IF THE SMALL TAXATION CLAIMS TRIBUNAL CONSIDERS THAT THE TAX IN DISPUTE IS NOT LESS THAN THE DETERMINED AMOUNT
24AD(1)
If:
(a)
an application is made before the Small Taxation Claims Tribunal under paragraph 24AC(1)(a); and
(b)
the Tribunal considers that the amount of tax in dispute is not less than the determined amount;
the Tribunal may make an order declaring that subsection 24AC(1) is not to apply.
24AD(2)
If such an order is made:
(a)
the Taxation Appeals Division, when hearing and determining the application, is not to be known as the Small Taxation Claims Tribunal; and
(b)
the Tribunal must not proceed to hear and determine the application until the applicant pays an additional fee in respect of the application equal to the difference between the standard application fee and the lower application fee; and
(c)
if the additional fee is not paid within the period directed by the Tribunal or, if no such direction is given, within the prescribed period, the Tribunal may dismiss the application but:
(i)
if the additional fee is paid after the application is dismissed, the applicant may apply to the Tribunal for reinstatement of the application; and
(ii)
if the Tribunal considers it appropriate to do so, the Tribunal may reinstate the application and give any directions that appear to it to be appropriate in the circumstances.
24AD(3)
If the Tribunal waives the whole or a part of the additional fee:
(a)
if the whole of the fee is waived - paragraphs (2)(b) and (c) do not apply; or
(b)
if part of the fee is waived - references in those paragraphs to the additional fee are taken to be references to the part of the fee that is not waived.
24AD(4)
If:
(a)
an application is, or 2 or more applications by the same applicant are, before the Small Taxation Claims Tribunal under subsection 24AC(1); and
(b)
another application is before the Administrative Appeals Tribunal that:
(i)
is made by the same applicant; and
(ii)
may, in the opinion of the Registrar, a District Registrar or a Deputy Registrar, be conveniently heard before the Administrative Appeals Tribunal at the same time as the first-mentioned application or applications;
the following provisions apply:
(c)
the applications are to be heard and determined before the Taxation Appeals Division;
(d)
that Division, when hearing and determining the applications, is not to be known as the Small Taxation Claims Tribunal;
(e)
the Registrar, a District Registrar or a Deputy Registrar may order that only one standard application fee is payable for the applications.
S 24AD inserted by No 34 of 1997, Sch 1, item 3.
PART IIIA - MANAGEMENT OF THE TRIBUNAL
History
Pt IIIA inserted by No 157 of 1989.
Division 1 - Management responsibilities of President and Registrar
SECTION 24A
MANAGEMENT OF ADMINISTRATIVE AFFAIRS OF TRIBUNAL
24A(1)
The President is responsible for managing the administrative affairs of the Tribunal.
24A(2)
However, the President is not responsible under subsection (1) for matters relating to the Tribunal under:
(a)
the
Public Governance, Performance and Accountability Act 2013; or
(b)
the
Public Service Act 1999.
24A(3)
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 Acts referred to in subsection (2).
24A(4)
However, the Registrar must consult with the President in relation to the Registrar's performance of those functions or exercise of those powers.
History
S 24A(4) substituted by No 122 of 2009.
SECTION 24B
24B
REGISTRAR OF THE TRIBUNAL
In the management of the administrative affairs of the Tribunal, the President is assisted by the Registrar of the Tribunal.
History
S 24B inserted by No 157 of 1989.
Division 1A - Application of the finance law
History
Div 1A inserted by No 62 of 2014, s 3 and Sch 6 item 1, effective 1 July 2014.
SECTION 24BA
24BA
APPLICATION OF THE FINANCE LAW
For the purposes of the finance law (within the meaning of the
Public Governance, Performance and Accountability Act 2013):
(a)
the following group of persons is a listed entity:
(i)
the Registrar;
(ii)
the staff of the Tribunal referred to in subsection 24N(1); and
(b)
the listed entity is to be known as the Administrative Appeals Tribunal; and
(c)
the Registrar is the accountable authority of the listed entity; and
(d)
the persons referred to in paragraph (a) are officials of the listed entity; and
(e)
the purposes of the listed entity include the Registrar's function to assist the President in the management of the administrative affairs of the Tribunal (see section
24B).
History
S 24BA amended by No 60 of 2015, s 3 and Sch 1 item 29, by substituting para (a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (a) formerly read:
(a)
the following group of persons is a listed entity:
(i)
the Registrar;
(ii)
the District Registrars, Conference Registrars, Deputy Registrars and staff of the Tribunal referred to in subsection 24N(1); and
S 24BA inserted by No 62 of 2014, s 3 and Sch 6 item 1, effective 1 July 2014.
Division 2 - Appointment, powers etc. of Registrar
SECTION 24C
24C
APPOINTMENT OF REGISTRAR
The Registrar is appointed by the Governor-General on the nomination of the President.
History
S 24C inserted by No 157 of 1989.
SECTION 24D
POWERS OF THE REGISTRAR
24D(1)
The Registrar has power to do all things necessary or convenient to be done for the purpose of assisting the President under section 24B.
24D(2)
In particular, the Registrar may act on behalf of the President in relation to the administrative affairs of the Tribunal.
24D(3)
The President may give the Registrar directions regarding the exercise of his or her powers under this Part.
24D(4)
(Repealed by No 60 of 2015)
History
S 24D(4) repealed by No 60 of 2015, s 3 and Sch 1 item 31, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24D(4) formerly read:
24D(4)
However, 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 following Acts:
(a)
the Public Governance, Performance and Accountability Act 2013;
(b)
the Public Service Act 1999.
S 24D(4) inserted by No 62 of 2014, s 3 and Sch 7 item 70, effective 1 July 2014.
History
S 24D inserted by No 157 of 1989.
SECTION 24E
REMUNERATION OF REGISTRAR
24E(1)
The Registrar is to be paid the remuneration and allowances determined by the Remuneration Tribunal.
24E(2)
If there is no determination in force, the Registrar is to be paid such remuneration as is prescribed.
24E(3)
The Registrar is to be paid such other allowances as are prescribed.
24E(4)
(Repealed by No 60 of 2015)
History
S 24E(4) repealed by No 60 of 2015, s 3 and Sch 1 item 31, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24E(4) formerly read:
24E(4)
Remuneration and allowances payable to the Registrar under this section are to be paid out of money appropriated by the Parliament for the purposes of the Tribunal.
History
S 24E inserted by No 157 of 1989.
SECTION 24F
TERMS AND CONDITIONS OF APPOINTMENT OF REGISTRAR
24F(1)
The Registrar holds office for the period (not longer than 5 years) specified in the instrument of his or her appointment, but is eligible for re-appointment.
24F(2)-(3)
(Repealed by No 159 of 2001)
24F(4)
The Registrar holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister.
History
S 24F(4) amended by No 60 of 2015, s 3 and Sch 1 item 32, by substituting "the Minister" for "the President", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 24F inserted by No 157 of 1989.
SECTION 24G
LEAVE OF ABSENCE
24G(1)
The Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal.
History
S 24G(1) substituted by No 122 of 1991; amended by No 146 of 1999.
24G(2)
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 Minister determines.
History
S 24G(2) amended by No 60 of 2015, s 3 and Sch 1 item 33, by substituting "Minister" for "President, with the approval of the Minister,", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 24G(2) substituted by No 122 of 1991.
SECTION 24H
RESIGNATION
24H(1)
[Resignation in writing]
The Registrar may resign his or her appointment by giving the Governor-General a written resignation.
24H(2)
[When resignation takes effect]
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.
History
S 24H substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 24H inserted by No 157 of 1989.
SECTION 24J
OUTSIDE EMPLOYMENT OF REGISTRAR
24J(1)
Except with the consent of the President, the Registrar must not engage in paid employment outside the duties of his or her office.
24J(2)
[Exception: Defence Force service]
The reference in subsection (1) to paid employment does not include service in the Defence Force.
History
S 24J inserted by No 157 of 1989.
SECTION 24K
TERMINATION OF APPOINTMENT
24K(1)
The Governor-General may terminate the appointment of the Registrar:
(a)
for misbehaviour; or
(b)
if the Registrar is unable to perform the duties of his or her office because of physical or mental incapacity.
24K(2)
The Governor-General may terminate the appointment of the Registrar if:
(a)
the Registrar:
(i)
becomes bankrupt; or
(ii)
takes steps to take the benefit of any law for the relief of bankrupt or insolvent debts; or
(iii)
compounds with one or more of his or her creditors; or
(iv)
makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b)
the Registrar is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c)
the Registrar engages in paid employment outside the duties of his or her office without the President's consent under section
24J; or
(d)
the Registrar fails, without reasonable excuse, to comply with section
24L (disclosure of interests).
24K(3)
The appointment of the Registrar may not be terminated other than in accordance with this section.
History
S 24K(3) inserted by No 157 of 1989; substituted by No 94 of 1992; amended by No 26 of 2008.
SECTION 24L
DISCLOSURE OF INTERESTS BY REGISTRAR
24L(1)
The Registrar must give written notice to the President of all direct or indirect pecuniary interests that the Registrar has or acquires in any business or in any body corporate carrying on a business.
History
S 24L amended by No 62 of 2014, s 3 and Sch 7 item 71, by inserting "(1)" before "The", effective 1 July 2014.
24L(2)
The Registrar must give written notice to the President of all material personal interests that the Registrar has that relate to the affairs of the Tribunal.
History
S 24L(2) inserted by No 62 of 2014, s 3 and Sch 7 item 72, effective 1 July 2014.
24L(3)
Section 29 of the
Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) does not apply to the Registrar.
History
S 24L(3) inserted by No 62 of 2014, s 3 and Sch 7 item 72, effective 1 July 2014.
History
S 24L inserted by No 157 of 1989.
SECTION 24M
24M
ACTING REGISTRAR
The Minister may, in writing, appoint a person to act in the office of Registrar:
(a)
during a vacancy in the office (whether or not an appointment has previously been made to the office); or
(b)
during any period, or during all periods, when the Registrar is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office.
Note:
For rules that apply to acting appointments, see section 33A of the Acts Interpretation Act 1901.
History
S 24M amended by No 60 of 2015, s 3 and Sch 1 item 35, by substituting "Minister" for "President", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 24M amended by No 46 of 2011, s 3 and Sch 2 items 32 and 33, by omitting "(1)" before "The President" and inserting the note at the end, effective 27 December 2011. No 46 of 2011, s 3 and Sch 3 items 10 and 11 contain the following saving and transitional provisions:
10 Saving - appointments
10
The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.
11 Transitional regulations
11
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.
S 24M inserted by No 157 of 1989.
24M(2)
(Repealed by No 46 of 2011)
History
S 24M(2) repealed by No 46 of 2011, s 3 and Sch 2 item 34, effective 27 December 2011. For saving provision and transitional regulations, see note under s 24M. S 24M(2) formerly read:
24M(2)
A person appointed to act in the office of Registrar during a vacancy may not continue to act in that office for more than 12 months.
24M(3)
(Repealed by No 46 of 2011)
History
S 24M(3) repealed by No 46 of 2011, s 3 and Sch 2 item 34, effective 27 December 2011. For saving provision and transitional regulations, see note under s 24M. S 24M(3) formerly read:
24M(3)
Anything done by or in relation to a person purporting to act under subsection (1) is not invalid on the ground that:
(a)
the occasion for the appointment had not arisen; or
(b)
there was a defect or irregularity in connection with the appointment; or
(c)
the appointment had ceased to have effect; or
(d)
the occasion for the person to act had not arisen or had ceased.
Division 3 - Other officers and staff of Tribunal
SECTION 24N
STAFF
24N(1)
The staff of the Tribunal must be persons engaged under the
Public Service Act 1999.
24N(2)
For the purposes of the
Public Service Act 1999:
(a)
the following persons together constitute a Statutory Agency:
(i)
the Registrar;
(ii)
the staff of the Tribunal referred to in subsection (1);
(iii)
the Senior Reviewer and the other Reviewers of the Immigration Assessment Authority; and
(b)
the Registrar is the head of that Statutory Agency.
History
S 24N(2) amended by No 60 of 2015, s 3 and Sch 2 items 146 and 147, by omitting "and" after "subsection (1);" from para (a)(ii) and inserting para (a)(iii), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 24N substituted by No 60 of 2015, s 3 and Sch 1 item 36, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24N formerly read:
SECTION 24N OFFICERS AND STAFF OF THE TRIBUNAL
24N(1)
In addition to the Registrar, there are to be such District Registrars, Conference Registrars, Deputy Registrars and staff of the Tribunal as are necessary.
History
S 24N(1) amended by No 175 of 1995.
24N(1A)
The Conference Registrars are appointed by the President.
History
S 24N(1A) inserted by No 175 of 1995.
24N(1B)
A person who holds an office of District Registrar, Deputy Registrar or Conference Registrar may be appointed to another of those offices without the appointment affecting his or her appointment to the first-mentioned office.
History
S 24N(1B) inserted by No 175 of 1995.
24N(2)
The District Registrars and Deputy Registrars are appointed by the Registrar.
History
S 24N(2) amended by No 175 of 1995.
24N(3)
The District Registrars, Conference Registrars, Deputy Registrars and the staff of the Tribunal are to be persons engaged under the Public Service Act 1999.
History
S 24N(3) amended by No 175 of 1995; No 146 of 1999.
24N(4)
The Registrar may, on behalf of the President, arrange with an Agency Head within the meaning of the Public Service Act 1999, or with an authority of the Commonwealth, for the services of officers or employees of the Agency or of the authority to be made available for the purposes of the Tribunal.
History
S 24N(4) amended by No 146 of 1999.
24N(5)
The District Registrars, Conference Registrars, Deputy Registrars and the staff of the Tribunal have such duties, powers and functions as are given by this Act or by the President.
History
S 24N(5) amended by No 175 of 1995.
S 24N inserted by No 157 of 1989.
SECTION 24P
24P
FUNCTIONS OF OFFICERS AND STAFF MEMBERS OF THE TRIBUNAL
The officers of the Tribunal and members of the staff of the Tribunal have the functions and powers conferred on them:
(a)
by this Act and any other enactment; and
(b)
by the President.
History
S 24P amended by No 3 of 2022, s 3 and Sch 1 item 56, by substituting "The officers of the Tribunal" for "The Registrar", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
S 24P substituted by No 60 of 2015, s 3 and Sch 1 item 36, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24P formerly read:
SECTION 24P STATUTORY AGENCY ETC. FOR PURPOSES OF PUBLIC SERVICE ACT
24P
For the purposes of the Public Service Act 1999:
(a)
the Registrar and the APS employees assisting the Registrar together constitute a Statutory Agency; and
(b)
the Registrar is the Head of that Statutory Agency.
S 24P substituted by No 146 of 1999, s 2, Sch 1[46].
SECTION 24PA
OFFICERS OF THE TRIBUNAL
24PA(1)
The Registrar may, by writing, appoint a person to be an officer of the Tribunal if the person is:
(a)
a member of the staff of the Tribunal referred to in subsection
24N(1); or
(b)
an APS employee made available to the Tribunal; or
(c)
an officer of the Supreme Court of Norfolk Island.
24PA(2)
An appointment under subsection
(1) may be expressed to be limited to specified decisions or proceedings or to specified functions or powers.
History
S 24PA substituted by No 3 of 2022, s 3 and Sch 1 item 57, effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A). S 24PA formerly read:
SECTION 24PA OFFICERS OF THE TRIBUNAL
24PA
The Registrar may, by writing, appoint a person to be an officer of the Tribunal if:
(a)
the person is:
(i)
a member of the staff of the Tribunal referred to in subsection 24N(1); or
(ii)
an APS employee made available to the Tribunal; or
(iii)
an officer of the Supreme Court of Norfolk Island; and
(b)
the Registrar is satisfied that the person has appropriate qualifications and experience.
S 24PA inserted by No 60 of 2015, s 3 and Sch 1 item 36, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 24Q
ENGAGEMENT OF CONSULTANTS ETC.
24Q(1)
The Registrar may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Registrar.
24Q(2)
[Procedure]
An engagement under subsection (1) is to be made:
(a)
on behalf of the Commonwealth; and
(b)
by written agreement.
History
S 24Q inserted by No 157 of 1989.
Division 4 - Miscellaneous administrative matters
SECTION 24R
ANNUAL REPORT
24R(1)
As soon as practicable after 30 June in each year, the President must prepare a report of the management of the administrative affairs, including the operation of the Divisions, of the Tribunal during the year.
Note:
The annual report prepared by the Registrar and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 may be included in the report prepared under this section.
History
S 24R(1) amended by No 60 of 2015, s 3 and Sch 1 item 37, by inserting ", including the operation of the Divisions,", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 24R(1) amended by No 62 of 2014, s 3 and Sch 7 items 73 and 74, by omitting "and give to the Minister" after "the President must prepare" and inserting a note, effective 1 July 2014.
24R(2)
A report prepared after 30 June in a year must be given to the Minister by 15 October of that year.
History
S 24R(2) substituted by No 62 of 2014, s 3 and Sch 7 item 75, effective 1 July 2014. S 24R(2) formerly read:
24R(2)
The report must include:
(a)
the financial statements required by section 49 of the Financial Management and Accountability Act 1997; and
(b)
an audit report on those statements under section 57 of the Financial Management and Accountability Act 1997.
24R(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.
History
S 24R inserted by No 157 of 1989.
S 24R substituted by No 152 of 1997.
24S
(Repealed) SECTION 24S PROPER ACCOUNTS TO BE KEPT
(Repealed by No 152 of 1997)
24T
(Repealed) SECTION 24T AUDIT
(Repealed by No 152 of 1997)
24U
(Repealed) SECTION 24U REPEALED
(Repealed by No 136 of 1991)
24V
(Repealed) SECTION 24V DELEGATION OF ADMINISTRATIVE POWERS OF PRESIDENT
(Repealed by No 60 of 2015)
History
S 24V repealed by No 60 of 2015, s 3 and Sch 1 item 38, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24V formerly read:
SECTION 24V DELEGATION OF ADMINISTRATIVE POWERS OF PRESIDENT
24V
The President may, in writing, delegate all or any of his or her powers under section 24A to any one or more of the members of the Tribunal.
S 24V inserted by No 157 of 1989.
SECTION 24W
24W
PROCEEDINGS ARISING OUT OF ADMINISTRATION OF TRIBUNAL
Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Tribunal under this Part, including any proceeding relating to anything done by the Registrar under this Part, may be instituted by or against the Commonwealth, as the case requires.
History
S 24W inserted by No 157 of 1989.
PART IV - REVIEWS BY THE TRIBUNAL OF DECISIONS
Division 1A - Scope of operation of this Part
History
Div 1A inserted by No 60 of 2015, s 3 and Sch 1 item 39, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 24Z
SCOPE OF OPERATION OF THIS PART
24Z(1)
Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.
Note 1:
For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958.
Note 2:
Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part.
24Z(2)
The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:
(a)
section
25;
(b)
section
42.
History
S 24Z inserted by No 60 of 2015, s 3 and Sch 1 item 39, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 1 - Applications for review of decisions
History
Div 1 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 25
TRIBUNAL MAY REVIEW CERTAIN DECISIONS
25(1)
Enactment may provide for applications for review of decisions.
An enactment may provide that applications may be made to the Tribunal:
(a)
for review of decisions made in the exercise of powers conferred by that enactment; or
(b)
for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
25(2)
The regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment.
History
S 25(2) inserted by No 139 of 2010, s 3 and Sch 1 item 132, effective 1 January 2011.
Former s 25(2) repealed by No 43 of 1996.
25(3)
Where an enactment makes provision in accordance with subsection (1) or (2), that enactment:
(a)
shall specify the person or persons to whose decisions the provision applies;
(b)
may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)
may specify conditions subject to which applications may be made.
History
S 25(3) amended by No 139 of 2010, s 3 and Sch 1 item 133, by inserting "or (2)" after "(1)", effective 1 January 2011.
25(3A)
Delegations, acting appointments and authorisations.
Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:
(a)
by any person to whom that power has been delegated;
(b)
in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment - by any person for the time being acting in, or performing any of the duties of, that office or appointment; or
(c)
by any other person lawfully authorized to exercise that power.
History
S 25(3A) inserted by No 58 of 1977; amended by No 175 of 1995.
25(4)
(Repealed by No 60 of 2015)
History
S 25(4) repealed by No 60 of 2015, s 3 and Sch 1 item 40, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 25(4) formerly read:
25(4)
Tribunal's power to review decisions.
The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
25(4A)
Tribunal may determine scope of review.
The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.
History
S 25(4A) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
25(5)
Failure of decision-maker to meet deadline.
For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.
History
S 25(5) amended by No 26 of 1982.
25(5A)
For the purposes of regulations that make provision in accordance with this section for the making of applications to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment, a failure by a person to do an act or thing within the period prescribed by:
(a)
that Norfolk Island enactment; or
(b)
another Norfolk Island enactment having effect under that Norfolk Island enactment;
as the period within which that person is required or permitted to do that act or thing is taken to constitute the making of a decision by that person at the end of that period not to do that act or thing.
History
S 25(5A) inserted by No 139 of 2010, s 3 and Sch 1 item 134, effective 1 January 2011.
Enactment may add to, exclude or modify operation of certain provisions
25(6)
If an Act provides for applications to the Tribunal:
(a)
that Act may also include provisions adding to, excluding or modifying the operation of any of the provisions of this Act in relation to such applications; and
(b)
those provisions have effect subject to any provisions so included.
History
S 25(6) substituted by No 114 of 2020, s 3 and Sch 1 item 221, effective 1 January 2021. S 25(6) formerly read:
25(6)
Enactment may add to, exclude or modify operation of certain provisions.
If an enactment provides for applications to the Tribunal:
(a)
that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b)
those sections and subsections have effect subject to any provisions so included.
S 25(6) amended by No 60 of 2015, s 3 and Sch 1 item 40A, by inserting "29AB, 29AC," in para (a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 25(6) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 25(6) amended by No 58 of 1977; No 26 of 1982; No 175 of 1995.
25(6A)
If an enactment (other than an Act) provides for applications to the Tribunal:
(a)
that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections
27,
29,
29AB,
29AC,
32,
33 and
35 or of subsection
41(1) or
43(1) or
(2) in relation to such applications; and
(b)
those sections and subsections have effect subject to any provisions so included.
History
S 25(6A) inserted by No 114 of 2020, s 3 and Sch 1 item 221, effective 1 January 2021.
Former s 25(6A) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
25(7)
What happens if decision-maker ceases to hold office etc.
Where:
(a)
a person has made a decision in respect of which an application may be made to the Tribunal;
(b)
the person made the decision by reason that he or she held or performed the duties of an office or appointment; and
(c)
the person no longer holds or performs the duties of the office or appointment;
this Act has effect as if the decision had been made by:
(d)
the person for the time being holding or performing the duties of that office or appointment; or
(e)
if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists - such person as the President or an authorised member specifies.
History
S 25(7) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 25(7) amended by No 175 of 1995.
Norfolk Island enactment
25(8)
If the regulations make provision in accordance with subsection (2) for the making of applications to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment (the
primary Norfolk Island enactment
), this Act, other than:
(a)
the definition of
authority of the Commonwealth
in subsection
3(1); and
(b)
subsections (1), (5) and (6) of this section; and
(c)
paragraph
19B(1)(a); and
(d)
subsection
27(1); and
(e)
paragraph
27A(2)(b); and
(f)
paragraph
33(1)(a); and
(g)
paragraph
43B(1)(a); and
(h)
section
59;
has effect as if:
(i)
the primary Norfolk Island enactment; and
(j)
any other Norfolk Island enactment, in so far as it relates to the primary Norfolk Island enactment;
were an enactment (within the meaning of this Act).
History
S 25(8) amended by No 60 of 2015, s 3 and Sch 1 item 41, by substituting para (c), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (c) formerly read:
(c)
subsection 21(1); and
S 25(8) inserted by No 139 of 2010, s 3 and Sch 1 item 135, effective 1 January 2011.
Former s 25(8) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
25(9)-(12)
(Repealed by No 38 of 2005)
History
S 25(9)-(12) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 26
RESTRICTION ON POWERS OF DECISION-MAKER AFTER APPLICATION FOR REVIEW IS MADE
26(1)
Subject to section
42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:
(a)
if regulations made for the purposes of subsection
25(2) (which deals with Norfolk Island) did not authorise the making of the application - the enactment that authorised the making of the application expressly permits the decision to be altered; or
(aa)
if regulations made for the purposes of subsection
25(2) authorised the making of the application - the Norfolk Island enactment under which the decision was made expressly permits the decision to be altered; or
(b)
the parties to the proceeding, and the Tribunal, consent to the making of the alteration.
History
S 26(1) amended by No 139 of 2010, s 3 and Sch 1 items 136 and 137, by inserting "if regulations made for the purposes of subsection 25(2) (which deals with Norfolk Island) did not authorise the making of the application -" before "the enactment" in para (a) and inserting para (aa), effective 1 January 2011.
S 26(1) inserted by No 175 of 1995, s 3, Sch 2.
26(1A)
Paragraph (1)(b) does not apply in relation to a proceeding that is a child support first review.
History
S 26(1A) inserted by No 60 of 2015, s 3 and Sch 1 item 42, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
26(2)
A reference in subsection (1) to the alteration of a decision is a reference to:
(a)
the variation of a decision; or
(b)
the setting aside of a decision; or
(c)
the setting aside of a decision and the making of a decision in substitution for the decision set aside.
History
S 26(2) inserted by No 175 of 1995, Sch 2.
SECTION 27
PERSONS WHO MAY APPLY TO TRIBUNAL
27(1)
Where this Act or any other enactment (other than the
Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth or Norfolk Island or an authority of Norfolk Island) whose interests are affected by the decision.
Note:
The enactment may be regulations made for the purposes of subsection 25(2) (review of decisions made in the exercise of powers conferred by a Norfolk Island enactment).
History
S 27(1) amended by No 139 of 2010, s 3 and Sch 1 items 138 and 139, by inserting "or Norfolk Island or an authority of Norfolk Island" after "authority of the Commonwealth" and inserting the note at the end, effective 1 January 2011.
S 27(1) amended by No 58 of 1977, s 38; No 175 of 1995, s 3, Sch 1; No 161 of 1999, s 2, Sch 3[6].
27(2)
An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.
27(3)
Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.
[
CCH Note
: S 14ZZB of the Taxation Administration Act, which commenced 1 March 1992, provides that s 27 does not apply to a reviewable objection decision (other than a reviewable objection decision that relates to a registration-type sales tax decision) or to an extension of time refusal decision.]
SECTION 27AA
APPLICATIONS TO TRIBUNAL UNDER AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT
Applications under Part IV of the Australian Security Intelligence Organisation Act 1979
27AA(1)
An application under subsection 54(1) of the
Australian Security Intelligence Organisation Act 1979 for review of a security assessment may be made by a person in respect of whom the assessment was made and who has, in accordance with Part IV of that Act, been given notice of the assessment.
History
S 27AA(1) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[7].
27AA(2)
An application under subsection 54(2) of the
Australian Security Intelligence Organisation Act 1979 for review of the findings of the Tribunal on a review of a security assessment may be made by the person who applied for the review in which the findings were made.
History
S 27AA(2) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[7].
27AA(3)
If the Tribunal is satisfied that an application referred to in subsection (2) is justified, it may review its previous findings, and this Act applies in relation to such a review and the findings in such a review as if it were the review of an assessment.
History
S 27AA(3) inserted by No 175 of 1995, s 3, Sch 1.
Applications under Part IVA of the Australian Security Intelligence Organisation Act 1979
27AA(4)
An application under subsection 83B(1) of the
Australian Security Intelligence Organisation Act 1979 for review of a security clearance decision or security clearance suitability assessment may be made by a person in respect of whom the decision or suitability assessment was made and who has, in accordance with Part IVA of that Act, been given notice of the decision or suitability assessment.
History
S 27AA(4) inserted by No 33 of 2023, s 3 and Sch 1 item 18, effective 1 July 2023.
27AA(5)
An application under subsection 83B(2) of the
Australian Security Intelligence Organisation Act 1979 for review of the findings of the Tribunal on a review of a security clearance decision or security clearance suitability assessment may be made by the person who applied for the review in which the findings were made.
History
S 27AA(5) inserted by No 33 of 2023, s 3 and Sch 1 item 18, effective 1 July 2023.
27AA(6)
If the Tribunal is satisfied that an application referred to in subsection
(5) is justified, it may review its previous findings, and this Act applies in relation to such a review and the findings in such a review as if it were the review of a security clearance decision or security clearance suitability assessment.
History
S 27AA(6) inserted by No 33 of 2023, s 3 and Sch 1 item 18,effective 1 July 2023.
SECTION 27A
NOTICE OF DECISION AND REVIEW RIGHTS TO BE GIVEN
27A(1)
[Duty of person making decision]
Subject to subsection (2), a person who makes a reviewable decision must take such steps as are reasonable in the circumstances to give to any person whose interests are affected by the decision notice, in writing or otherwise:
(a)
of the making of the decision; and
(b)
of the right of the person to have the decision reviewed.
27A(2)
[Decisions excepted]
Subsection (1) does not apply to:
(a)
a decision that is deemed to be made because of the operation of subsection 25(5) or (5A); or
(b)
a decision in respect of which provision relating to the notification of a right of review is made by another enactment; or
(c)
any of the following decisions:
(i)
a decision not to impose a liability, penalty or any kind of limitation on a person;
(ii)
a decision making an adjustment to the level of periodic payments to be made to a person as a member of a class of persons where a similar adjustment is being made to the level of such payments to the other members of the class;
(iii)
if an enactment establishes several categories of entitlement to a monetary benefit - a decision that determines a person to be in the most favourable of those categories;
if the decision does not adversely affect the interests of any other person; or
(d)
a decision under the
Corporations Act 2001 to which section 1317B of that Act applies;
(e)
a decision under the
Australian Securities and Investments Commission Act 2001 to which section 244 of that Act applies.
History
S 27A(2) amended by No 139 of 2010, s 3 and Sch 1 item 140, by inserting "or (5A)" after "25(5)" in para (a), effective 1 January 2011.
S 27A(2) amended by No 156 of 1999, Sch 12; substituted by Act No 55 of 2001, Sch 3.
27A(3)
[Validity of decision not affected]
A failure to do what this section requires does not affect the validity of the decision.
27A(4)
[Definition]
In this section:
"reviewable decision"
means:
(a)
a decision that is reviewable by the Tribunal; or
(b)
a decision that is reviewable by:
(i)
a person whose decision on review is reviewable by the Tribunal; or
(ii)
a person whose decision on review, because of subparagraph (i), is a reviewable decision.
History
S 27A inserted by No 165 of 1992, Sch; amended by No 104 of 1994, Sch 5.
SECTION 27B
REVIEW - CODE OF PRACTICE
27B(1)
The Attorney-General may, by legislative instrument, determine a Code of Practice for the purpose of facilitating the operation of subsection 27A(1).
History
S 27B(1) amended by No 103 of 2013, s 3 and Sch 3 item 21, by substituting ", by legislative instrument, determine" for "determine, in writing,", effective 29 June 2013.
27B(2)
A person, in taking action under subsection 27A(1), must have regard to any such Code of Practice that is then in force.
27B(3)
(Repealed by No 103 of 2013)
History
S 27B(3) repealed by No 103 of 2013, s 3 and Sch 3 item 22, effective 29 June 2013. S 27B(3) formerly read:
A Code of Practice is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
S 27B inserted by No 165 of 1992.
SECTION 28
PERSON AFFECTED BY DECISION MAY OBTAIN REASONS FOR DECISION
28(1)
Request for statement of reasons.
Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the
applicant
) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.
History
S 28(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(1) amended by No 58 of 1977; No 143 of 1979; No 175 of 1995.
Exceptions
28(1AAA)
Subsection (1) does not apply in relation to:
(a)
a decision that is reviewable in the Security Division; or
(b)
a decision that is a decision on AAT first review within the meaning of any of the following:
(i)
the A New Tax System (Family Assistance) (Administration) Act 1999;
(ii)
the Child Support (Registration and Collection) Act 1988;
(iii)
the Social Security (Administration) Act 1999;
(iv)
the Student Assistance Act 1973;
(v)
the Paid Parental Leave Act 2010.
History
S 28(1AAA) substituted by No 60 of 2015, s 3 and Sch 1 item 43, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 28(1AAA) formerly read:
28(1AAA)
Exception - Security Appeals Division.
Subsection (1) does not apply to a decision if the powers of the Tribunal in respect of an application for review of the decision are required by subsection 19(6) to be exercised in the Security Appeals Division.
S 28(1AAA) inserted by No 175 of 1995.
28(1AA)
What happens if decision-maker contests applicant's entitlement to statement of reasons.
Where a person to whom a request for a statement in relation to a decision is made by an applicant under subsection (1) is of the opinion that the applicant is not entitled to be given the statement, that person shall, as soon as practicable but in any case within 28 days after receiving the request, give to the applicant notice in writing of his or her opinion.
History
S 28(1AA) inserted by No 26 of 1982, s 22; amended by No 175 of 1995, Sch 3; No 38 of 2005, s 3, Sch 1[78], effective 16 May 2005.
Provisions relevant to Act No 38 of 2005 (Sch 1[201] and [202]) are reproduced after s 2A of this Act.
28(1AB)
A person who gives a notice under subsection (1AA) with respect to a request for a statement in relation to a decision is not required to comply with the request unless the Tribunal, on application under subsection (1AC), decides that the applicant was entitled to be given the statement, and, if the Tribunal so decides, the first-mentioned person shall prepare the statement and give it to the applicant within 28 days after the decision of the Tribunal is given.
History
S 28(1AB) amended by No 38 of2005. For transitional provisions see note under s 2A.
S 28(1AB) inserted by No 26 of 1982.
28(1AC)
On application by an applicant who has received a notice under subsection (1AA), the Tribunal must decide whether the applicant was or was not entitled to be given the statement concerned.
History
S 28(1AC) substituted by No 60 of 2015, s 3 and Sch 1 item 44, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 28(1AC) formerly read:
28(1AC)
The Tribunal shall, on an application being made, as prescribed, by an applicant who has received a notice under subsection (1AA) with respect to a request for a statement in relation to a decision, decide whether the applicant was, or was not, entitled to be given the statement.
S 28(1AC) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(1AC) inserted by No 26 of 1982.
28(1A)
When decision-maker may refuse to give statement of reasons.
A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and give the statement if-
(a)
in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the applicant - the request was not made on or before the twenty-eighth day after the day on which that document was given to the applicant; or
(b)
in any other case - the request was not made within a reasonable time after the decision was made,
and in any such case the person to whom the request was made shall give to the applicant, as soon as practicable but in any case within 28 days after receiving the request, notice in writing stating that the statement will not be given to him or her and giving the reason why the statement will not be so given.
History
S 28(1A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(1A) inserted by No 58 of 1977, s 17; amended by No 143 of 1979; No 175 of 1995.
28(1B)
For the purposes of paragraph (1A)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Tribunal, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.
History
S 28(1B) inserted by No 58 of 1977, s 17.
28(2)
Public interest certificate.
If the Attorney-General certifies, by writing signed by him or her, that the disclosure of any matter contained in a statement prepared in accordance with subsection (1) would be contrary to the public interest:
(a)
by reason that it would prejudice the security, defence or international relations of Australia;
(b)
by reason that it would involve the disclosure of deliberations of the Cabinet or of a Committee of the Cabinet; or
(c)
for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter should not be disclosed;
subsections (3) and (3A) have effect.
History
S 28(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(2) amended by No 58 of 1977; substituted by No 26 of 1982; amended by No 175 of 1995.
28(3)
A person to whom a request for a statement in relation to a decision is made under subsection (1)-
(a)
is not required to include in the statement any matter in relation to which the Attorney-General has given a certificate under subsection (2); and
(b)
where the statement would be false or misleading if it did not include such matter - is not required by subsection (1) to give the statement to the applicant.
History
S 28(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(3) substituted by No 58 of 1977; No 26 of 1982.
28(3A)
Where a certificate is given under subsection (2) in relation to matter contained in a statement prepared in accordance with subsection (1) in relation to a decision-
(a)
the person who made the decision shall notify the applicant in writing-
(i)
in a case where the matter is not included in the statement - that the matter is not so included and giving the reason for not including the matter; or
(ii)
in a case where the statement is not given - that the statement will not be given and giving the reason for not giving the statement; and
(b)
subsections 36(2), (3), (3A) and (4) and 36D(1) to (6), inclusive, apply in relation to any statement referred to in paragraph 37(1)(a) in relation to that decision that is lodged with the Tribunal under section 37 as if the certificate were a certificate given under subsection 36(1) in relation to any such matter that is contained in the last-mentioned statement.
History
S 28(3A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(3A) inserted by No 26 of 1982; amended by No 120 of 1988.
28(4)
When applicant not entitled to request statement of reasons.
The applicant is not entitled to make a request under subsection (1) if-
(a)
the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; or
(b)
a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision has already been given to him or her.
History
S 28(4) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(4) inserted by No 58 of 1977; amended by No 175 of 1995.
Inadequate statement of reasons
28(5)
An applicant who has been given a statement under subsection (1) may apply to the Tribunal for a declaration that the statement does not contain one or more of the following:
(a)
adequate particulars of findings on material questions of fact;
(b)
an adequate reference to the evidence or other material on which those findings were based;
(c)
adequate particulars of the reasons for the decision.
History
S 28(5) substituted by No 60 of 2015, s 3 and Sch 1 item 45, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 28(5) formerly read:
28(5)
Inadequate statement of reasons.
If the Tribunal, upon application, as prescribed, for a declaration under this subsection made to it by an applicant to whom a statement has been given in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Tribunal may make a declaration accordingly, and, where the Tribunal makes such a declaration, the person to whom the request for the statement was made shall, as soon as practicable but in any case within 28 days after the Tribunal makes the declaration, give to the applicant an additional statement or additional statements containing further and better particulars in relation to matters specified in the declaration with respect to those findings, that evidence or other material or those reasons.
S 28(5) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(5) inserted by No 26 of 1982.
28(6)
If the Tribunal makes the declaration, the person to whom the request for the statement was made must, as soon as practicable and no later than 28 days after the day the declaration was made, give the applicant an additional statement containing further and better particulars in relation to the matters specified in the declaration.
History
S 28(6) inserted by No 60 of 2015, s 3 and Sch 1 item 45, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 29
MANNER OF APPLYING FOR REVIEW
29(1)
An application to the Tribunal for a review of a decision-
(a)
must be made:
(i)
in writing; or
(ii)
if the decision is reviewable in the Social Services and Child Support Division - in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and
Note:
For oral applications, see also section 29AA.
(b)
must be accompanied by any prescribed fee; and
(c)
unless paragraph
(ca) or
(cb) applies or the application was oral - must contain a statement of the reasons for the application; and
(ca)
in respect of an application made under subsection 54(1) or 83B(1) of the
Australian Security Intelligence Organisation Act 1979 for review of a security assessment or a security clearance suitability assessment - must be accompanied by:
(i)
a copy of the assessment or suitability assessment as given to the applicant; and
(ii)
a statement indicating any part or parts of the assessment or suitability assessment with which the applicant does not agree and setting out the grounds on which the application is made; and
(cb)
in respect of an application under subsection 54(2) or 83B(2) of the
Australian Security Intelligence Organisation Act 1979 - must be accompanied by a statement setting out the grounds on which the application is made;
(d)
if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection
25(5) or
(5A) - shall be lodged with the Tribunal within the prescribed time.
Note:
Paragraph 33(1)(c) provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
History
S 29(1) amended by No 33 of 2023, s 3 and Sch 1 items 19-22, by inserting "or 83B(1)" and "or a security clearance suitability assessment" in para (ca), "or suitability assessment" in para (ca)(i) and (ii) and "or 83B(2)" in para (cb), effective 1 July 2023.
S 29(1) amended by No 60 of 2015, s 3 and Sch 1 item 46, by substituting para (a), (b) and (c), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (a), (b) and (c) formerly read:
(a)
shall be in writing; and
(b)
may be made in accordance with the prescribed form; and
(c)
except if paragraph (ca) or (cb) applies - must contain a statement of the reasons for the application; and
S 29(1) amended by No 139 of 2010, s 3 and Sch 1 item 141, by inserting "or (5A)" after "25(5)" in para (d), effective 1 January 2011.
S 29(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(1) substituted by No 58 of 1977; amended by No 175 of 1995; No 161 of 1999.
29(1A)
Address at which documents may be given.
If, in an application, a person does not provide an address at which documents in relation to the proceeding may be given, any address of the person shown in the application, or later notified to the Tribunal as an address at which such documents may be given, is taken to be an address provided by the person at which such documents may be given.
History
S 29(1A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(1A) inserted by No 31 of 1993.
29(1B)
(Repealed by No 60 of 2015)
History
S 29(1B) repealed by No 60 of 2015, s 3 and Sch 1 item 47, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 29(1B) formerly read:
29(1B)
Tribunal may request amendment of insufficient statement.
If:
(a)
an application contains a statement under paragraph (1)(c); and
(b)
the Tribunal is of the opinion that the statement is not sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision;
the Tribunal may, by notice given to the applicant, request the applicant to amend the statement, within the period specified in the notice, so that the statement is sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision.
S 29(1B) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
29(2)
Prescribed time for making applications - general.
Subject to subsection (3), the prescribedtime for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after-
(a)
if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant; or
(b)
if the decision does not set out those findings and reasons-
(i)
if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is given to the applicant - the day on which the statement is so given;
(ii)
if the applicant, in accordance with subsection 28(1), requests the person who made the decision to give a statement as mentioned in that subsection - the day on which the statement is given or the applicant is notified in accordance with subsection 28(3A) that the statement will not be given; or
(iii)
in any other case - the day on which a document setting out the terms of the decision is given to the applicant.
History
S 29(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(2) substituted by No 58 of 1977.
29(3)
Prescribed time for making applications - decision-maker's failure to meet deadline.
In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5) or (5A), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending-
(a)
in a case to which paragraph
(b) does not apply - on the twenty-eighth day after that day; or
(b)
in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection
25(5) or
(5A) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant - on the twenty-eighth day after-
(i)
if the decision sets out the findings on material questions of fact and the reasons for the decision - the day on which a document setting out the terms of the decision is given to the applicant; or
(ii)
if the decision does not set out those findings and reasons - the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision.
History
S 29(3) amended by No 139 of 2010, s 3 and Sch 1 item 142, by inserting "or (5A)" after "25(5)" (wherever occurring), effective 1 January 2011.
S 29(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(3) substituted by No 58 of 1977.
29(4)
What happens if there is no prescribed time for making applications.
Where-
(a)
no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or
(b)
no time is prescribed for the lodging with the Tribunal by a particular person of an application for a review of a particular decision,
and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6)-
(c)
in a case to which paragraph
(a) applies - refuse to entertain an application for a review of the decision referred to in that paragraph; or
(d)
in a case to which paragraph
(b) applies - refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to.
History
S 29(4) substituted by No 58 of 1977, s 18.
29(5)
In forming an opinion for the purposes of subsection
(4), the Tribunal shall have regard to-
(a)
the time when the applicant became aware of the making of the decision; and
(b)
in a case to which paragraph
(4)(b) applies - the period or periods prescribed for the lodging by another person or other persons of an application or applications for review of the decision,
and may have regard to any other matters that it considers relevant.
History
S 29(5) substituted by No 58 of 1977, s 18.
29(6)
Notwithstanding subsection
(4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it in doing so.
History
S 29(6) substituted by No 58 of 1977, s 18.
29(7)
Tribunal may extend time for making application.
The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
History
S 29(7) amended by No 38 of 2005. No 38 of 2005, s 3, Sch 1[100], provides:
Transitional - subsection 29(7) of the
Administrative Appeals Tribunal Act 1975
The amendment of subsection 29(7) of the Administrative Appeals Tribunal Act 1975 made does not affect an extension of time granted under that subsection before the commencement of this item.
For further transitional provisions see note under s 2A.
S 29(7) substituted by No 58 of 1977.
29(8)
The time for making an application to the Tribunal for a review of a decision may be extended under subsection
(7) although that time has expired.
History
S 29(8) substituted by No 58 of 1977, s 18; No 26 of 1982, s 23.
29(9)
Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a)
give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b)
require the applicant to give notice to those persons.
History
S 29(9) substituted by No 60 of 2015, s 3 and Sch 1 item 48, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 29(9) formerly read:
29(9)
Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to give notice of the application to a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.
S 29(9) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(9) substituted by No 58 of 1977.
29(10)
If a person to whom a notice is given under subsection
(9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
History
S 29(10) amended by No 60 of 2015, s 3 and Sch 1 item 49, by omitting ", as prescribed," before "stating that he or she", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 29(10) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(10) substituted by No 58 of 1977, s 18; amended by No 175 of 1995.
29(11)
(Repealed by No 60 of 2015)
History
S 29(11) repealed by No 60 of 2015, s 3 and Sch 1 item 50, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 29(11) formerly read:
29(11)
Decision-maker to be notified of application for review.
The Registrar, a District Registrar or a Deputy Registrar shall cause notice in writing of an application for a review of a decision, in accordance with the prescribed form, to be given to the person who made the decision.
S 29(11) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(11) substituted by No 58 of 1977, s 18; amended by No 175 of 1995.
SECTION 29AA
ORAL APPLICATIONS
29AA(1)
If a person makes an oral application as referred to in subparagraph
29(1)(a)(ii), the person receiving the application must:
(a)
make a written record of the details of the application; and
(b)
note on the record the day on which the application is made.
29AA(2)
If a person makes a written record of an oral application in accordance with subsection (1), this Part has effect as if the written record were an application in writing made on the day on which the oral application was made.
History
S 29AA inserted by No 60 of 2015, s 3 and Sch 1 item 51, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 29AB
29AB
INSUFFICIENT STATEMENT OF REASONS FOR APPLICATION
If the Tribunal considers that an applicant's statement under paragraph
29(1)(c) does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision, the Tribunal may, by notice given to the applicant, request the applicant to amend the statement appropriately, within the period specified in the notice.
History
S 29AB inserted by No 60 of 2015, s 3 and Sch 1 item 51, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 29AC
NOTICE OF APPLICATION
29AC(1)
If an application is made to the Tribunal for a review of a decision, the Registrar must give the following persons written notice of receipt of the application:
(a)
the applicant;
(b)
the person who made the decision;
(c)
any other person who is made a party to the review by the enactment that authorised the application.
History
S 29AC(1) amended by No 132 of 2015, s 3 and Sch 1 item 1, by inserting para (c), effective 14 October 2015.
29AC(2)
The Tribunal or an officer of the Tribunal may, if satisfied that another person's interests may be affected by the decision:
(a)
give the other person written notice of the application and of the person's right to apply to be made a party to the proceeding under subsection
30(1A); or
(b)
require the applicant to give the other person such a notice.
History
S 29AC inserted by No 60 of 2015, s 3 and Sch 1 item 51, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
29A
(Repealed) SECTION 29A APPLICATIONS - PAYMENT OF FEES
(Repealed by No 186 of 2012)
History
S 29A repealed by No 186 of 2012, s 3 and Sch 5 item 1, effective 11 June 2013. No 186 of 2012, s 3 and Sch 5 item 4(1) contains the following application and saving provision:
(1)
Despite the amendment made by item 1, section 29A of the Administrative Appeals Tribunal Act 1975, as in force immediately before the commencement of that item, continues to apply on and after that commencement in relation to applications lodged before that commencement.
S 29A formerly read:
SECTION 29A APPLICATIONS - PAYMENT OF FEES
29A(1)
Subject to subsection (2), an application to the Tribunal, whether for a review of a decision or otherwise, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid.
29A(2)
An application in respect of which a fee is waived under the regulations, whether at the time of lodgment or later, is taken to be made at the time it is lodged with the Tribunal.
S 29A inserted by No 31 of 1993, s 9.
SECTION 29B
NOTICE OF APPLICATION UNDER AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT
29B(1)
If an application is duly made to the Tribunal for the review of a security assessment, the Tribunal must cause a copy of the application, and of the statement lodged with the application, to be given to the Director-General of Security and to the Commonwealth agency, State or authority of a State to which the assessment was given.
History
S 29B amended by No 33 of 2023, s 3 and Sch 1 item 24, by inserting "(1)" before "If an application", effective 1 July 2023.
29B(2)
If an application is made to the Tribunal for a review of a security clearance decision or security clearance suitability assessment, the Registrar must give a copy of the application, and a copy of the statement lodged with the application, to:
(a)
the Director-General of Security; and
(b)
for an application for review of a security clearance decision - the sponsoring agency for the security clearance in relation to which the security clearance decision was made; and
(c)
for an application for review of a security clearance suitability assessment - the security vetting agency to which the suitability assessment was given.
History
S 29B(2) inserted by No 33 of 2023, s 3 and Sch 1 item 25, effective 1 July 2023.
29B(3)
If subsection
(2) applies, the Registrar must also give the applicant written notice of receipt of the application.
History
S 29B(3) inserted by No 33 of 2023, s 3 and Sch 1 item 25, effective 1 July 2023.
History
S 29B amended by No 82 of 2016, s 3 and Sch 12 item 10, by inserting ", State or authority of a State", effective 30 November 2016.
S 29B inserted by No 175 of 1995, s 3, Sch 1.
Division 2 - Parties and procedure
History
Div 2 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 30
PARTIES TO PROCEEDING BEFORE TRIBUNAL
30(1AA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 30(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 30(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 53, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 30(1AA) inserted by No 175 of 1995.
30(1)
Parties.
Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:
(a)
any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;
(b)
the person who made the decision;
(c)
if the Attorney-General intervenes in the proceeding under section
30A - the Attorney-General; and
(d)
any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).
Note:
See also subsections 36(3A) and 36A(2A) (Attorney-General deemed to be a party to certain proceedings), and subsections 36B(4) and 36C(3) (State Attorney-General deemed to be a party to certain proceedings).
History
S 30(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 30(1) amended by No 58 of 1977, s 19; No 26 of 1982, s 24; No 38 of 2005.
30(1A)
Person whose interests are affected may apply to be a party.
Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.
History
S 30(1A) inserted by No 26 of 1982.
30(2)
Official name.
A person who is a party to a proceeding before the Tribunal-
(a)
by reason of a decision made by him or her in the performance of the duties of an office or appointment; or
(b)
by reason of the operation of subsection
25(7),
shall be described in the proceeding by his or her official name.
History
S 30(2) amended by No 175 of 1995.
SECTION 30A
INTERVENTION BY ATTORNEY-GENERAL
30A(1AA)
This section does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 30A(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 30A(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 53, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 30A(1AA) inserted by No 175 of 1995, s 3, Sch 1.
30A(1)
The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding before the Tribunal.
30A(2)
Where the Attorney-General intervenes under subsection
(1) in a proceeding for a review of a decision, the Attorney-General may authorize the payment to a party to the proceeding by the Commonwealth of such costs as he or she considers were reasonably incurred by that party in relation to the proceeding as a result of that intervention.
History
S 30A inserted by No 26 of 1982, s 25; amended by No 175 of 1995, Sch 3.
SECTION 31
TRIBUNAL TO DETERMINE PERSONS WHOSE INTERESTS ARE AFFECTED BY DECISION
31(1)
Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
31(2)
This section does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 31(2) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 31(2) amended by No 60 of 2015, s 3 and Sch 1 item 53, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 31(2) inserted by No 175 of 1995, s 3, Sch 1.
SECTION 32
REPRESENTATION BEFORE TRIBUNAL
Parties
32(1)
At the hearing of a proceeding before the Tribunal, the following parties may appear in person orbe represented by another person:
(a)
a party to a proceeding in a Division other than the Social Services and Child Support Division;
(b)
the agency party to a proceeding in the Social Services and Child Support Division.
32(2)
At the hearing of a proceeding before the Tribunal in the Social Services and Child Support Division, a party to the proceeding (other than the agency party) may appear in person or, with the Tribunal's permission, may be represented by another person.
32(3)
In deciding whether to grant permission for the purposes of subsection (2), the Tribunal must have regard to:
(a)
the Tribunal's objective in section
2A; and
(b)
the wishes of the parties and the need to protect their privacy.
Persons required to appear
32(4)
A person who is required to appear in a proceeding before the Tribunal may, with the permission of the Tribunal, be represented by another person.
History
S 32 substituted by No 60 of 2015, s 3 and Sch 1 item 54, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 32 formerly read:
SECTION 32 REPRESENTATION BEFORE TRIBUNAL
32
At the hearing of a proceeding before the Tribunal, a party to the proceeding may appear in person or may be represented by some other person.
SECTION 33
PROCEDURE OF TRIBUNAL
33(1)
In a proceeding before the Tribunal:
(a)
the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)
the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c)
the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.
History
S 33(1) amended by No 26 of 1982, s 26.
33(1AA)
Decision-maker must assist Tribunal.
In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.
History
S 33(1AA) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Parties etc. must assist Tribunal
33(1AB)
A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section
2A.
History
S 33(1AB) inserted by No 60 of 2015, s 3 and Sch 1 item 55, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
33(1A)
Directions hearing.
The President or an authorised member may hold a directions hearing in relation to a proceeding.
History
S 33(1A) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(1A) inserted by No 31 of 1993.
33(2)
Who may give directions.
For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:
(a)
where the hearing of the proceeding has not commenced - by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised officer; and
(b)
where the hearing of the proceeding has commenced - by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.
History
S 33(2) amended by No 60 of 2015, s 3 and Sch 1 item 56, by substituting "officer" for "Conference Registrar" in para (a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 33(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(2) substituted by No 26 of 1982, s 26; amended by No 31 of 1993.
33(2A)
Types of directions.
Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:
(a)
require any person who is a party to the proceeding to provide further information in relation to the proceeding; or
(b)
require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or
(c)
require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing; or
(d)
limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e)
require witnesses to give evidence at the same time; or
(f)
limit the time for giving evidence or making oral submissions; or
(g)
limit the length of written submissions.
History
S 33(2A) amended by No 60 of 2015, s 3 and Sch 1 item 57, by inserting para (d) to (g), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 33(2A) inserted by No 31 of 1993, s 10.
33(3)
(Repealed by No 60 of 2015)
History
S 33(3) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(3) formerly read:
33(3)
Directions may be varied or revoked.
A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be varied or revoked at any time by any member or Conference Registrar empowered in accordance with this section to give such a direction in relation to the proceeding at that time.
S 33(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(3) inserted by No 26 of 1982.
33(4)
(Repealed by No 60 of 2015)
History
S 33(4) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(4) formerly read:
33(4)
Authorised Conference Registrar.
The President may authorise a particular Conference Registrar to be an authorised Conference Registrar for the purposes of paragraph (2)(a).
S 33(4) substituted by No 38 of 2005. No 38 of 2005, Sch 1 [111] provides:
Transitional - subsection 33(4) of the
Administrative Appeals Tribunal Act 1975
111(1)
This item applies to the power to make an authorisation under subsection 33(4) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
111(2)
For the purposes of section 4 of the Acts Interpretation Act 1901, that power is taken to be a power to make an instrument of an administrative character.
For further transitional provisions see note under s 2A.
S 33(4) inserted by No 26 of 1982.
33(5)
(Repealed by No 60 of 2015)
History
S 33(5) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(5) formerly read:
33(5)
An authorisation under subsection (4) may be:
(a)
general; or
(b)
limited to:
(i)
a particular reviewable decision or particular reviewable decisions; or
(ii)
reviewable decisions included in a particular class or classes of reviewable decisions; or
(iii)
a particular proceeding or particular proceedings; or
(iv)
proceedings included in a particular class or classes of proceedings.
S 33(5) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(5) inserted by No 26 of 1982.
33(6)
(Repealed by No 60 of 2015)
History
S 33(6) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(6) formerly read:
33(6)
The President may at any time vary or revoke an authorisation under subsection (4).
S 33(6) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
33(7)
(Repealed by No 60 of 2015)
History
S 33(7) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(7) formerly read:
33(7)
In this section:
authorised Conference Registrar
means a Conference Registrar authorised under subsection (4).
reviewable decision
means a decision in respect of which an application to the Tribunal for review has been, or may be, made.
S 33(7) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 33A
PARTICIPATION BY TELEPHONE ETC.
33A(1)
The Tribunal for the purposes of a hearing, or the person conducting a directions hearing or alternative dispute resolution process, may allow or require a person to participate by telephone or by means of other electronic communications equipment.
33A(2)
Subsection
(1) does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 33A(2) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
History
S 33A inserted by No 60 of 2015, s 3 and Sch 1 item 59, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 3 - Alternative dispute resolution processes
History
Div 3 heading inserted by No 38 of 2005. No 38 of 2005, Sch 1[117], provides:
Transitional - Division 3 of Part IV of the
Administrative Appeals Tribunal Act 1975
117(1)
This item applies to a conference or mediation if:
(a)
the conference or mediation had begun, before the commencement of this item, under section 34 or 34A of the Administrative Appeals Tribunal Act 1975; and
(b)
the conference or mediation had not been completed before the commencement of this item.
117(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if:
(a)
the conference or mediation were a conference or mediation under Division 3 of Part IV of that Act; and
(b)
in the case of a conference - the person presiding at the conference had been directed under subsection 34C(1) of that Act to conduct the conference; and
(c)
in the case of a mediation - the mediator had been directed under subsection 34C(1) of that Act to conduct the mediation;
and the conference or mediation is to be continued accordingly.
For further transitional provisions see note under s 2A.
SECTION 34
34
SCOPE OF DIVISION
This Division does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 34 amended by No 33 of 2023, s 3 and Sch 1 item 44(b), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 34 substituted by No 3 of 2022, s 3 and Sch 1 item 24, applicable in relation to an application for review made on or after 18 February 2022. S 34 formerly read:
SECTION 34 SCOPE OF DIVISION
34
This Division does not apply to:
(a)
a proceeding in the Security Division to which section 39A applies; or
(b)
a proceeding in the Social Services and Child Support Division.
S 34 substituted by No 60 of 2015, s 3 and Sch 1 item 60, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 34 formerly read:
SECTION 34 SCOPE OF DIVISION
34
This Division does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
S 34 substituted by No 38 of 2005. No 38 of 2005, Sch 1[119], provides:
Transitional - subsections 34(3) and 34A(7) of the
Administrative Appeals Tribunal Act 1975
Despite the repeal of subsections 34(3) and 34A(7) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after the commencement of this item, in relation to anything said, or any act done, before the commencement of this item, at a conference or mediation, as if those repeals had not happened.
No 38 of 2005, Sch 1[120], provides:
Transitional - subsections 34(4) and 34A(8) of the
Administrative Appeals Tribunal Act 1975
120(1)
Despite the repeal of subsection 34(4) of the Administrative Appeals Tribunal Act 1975 by this Schedule, that subsection continues to apply after the commencement of this item, in relation to a conference that was completed before the commencement of this item, as if that repeal had not happened.
120(2)
Despite the repeal of subsection 34A(8) of the Administrative Appeals Tribunal Act 1975 by this Schedule, that subsection continues to apply after the commencement of this item, in relation to a mediation that was completed before the commencement of this item, as if:
(a)
that repeal had not happened; and
(b)
the reference in that subsection to subsection 34A(5) or (6) of the Administrative Appeals Tribunal Act 1975 were a reference to subsection 34D(2) or (3) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
SECTION 34A
REFERRAL FOR ALTERNATIVE DISPUTE RESOLUTION PROCESS
34A(1)
If an application is made to the Tribunal, the President may direct that the proceeding, or any part of it or matter arising out of the proceeding, be referred to an alternative dispute resolution process.
34A(1A)
However, in relation to a proceeding in the Social Services and Child Support Division:
(a)
the President must not give a direction under subsection
(1) unless the alternative dispute resolution process is conferencing; and
(b)
the agency party to the proceeding is not required to participate in the conferencing.
History
S 34A(1A) inserted by No 3 of 2022, s 3 and Sch 1 item 25, applicable in relation to an application for review made on or after 18 February 2022.
34A(2)
The President may give written directions in relation to persons who are to conduct an alternative dispute resolution process. Any such person must be:
(a)
a member; or
(b)
an officer of the Tribunal; or
(c)
a person engaged under section
34H.
34A(3)
The parties to a proceeding referred to an alternative dispute resolution process must act in good faith in relation to the conduct of the alternative dispute resolution process.
34A(4)
However, subsection
(3) does not apply to the agency party to a proceeding in the Social Services and Child Support Division if:
(a)
the President gives a direction under subsection
(1) that the proceeding, or any part of it or matter arising out of the proceeding, be referred to conferencing; and
(b)
the agency party is not participating in the conferencing.
History
S 34A(4) inserted by No 3 of 2022, s 3 and Sch 1 item 26, applicable in relation to an application for review made on or after 18 February 2022.
History
S 34A substituted by No 60 of 2015, s 3 and Sch 1 item 61, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 34A formerly read:
SECTION 34A REFERRAL OF PROCEEDING FOR ALTERNATIVE DISPUTE RESOLUTION PROCESS
34A(1)
If an application is made to the Tribunal for review of a decision, the President may:
(a)
direct the holding of a conference of the parties or their representatives in relation to the proceeding, or any part of the proceeding or any matter arising out of the proceeding; or
(b)
direct that the proceeding, or any part of the proceeding or any matter arising out of the proceeding, be referred for a particular alternative dispute resolution process (other than conferencing).
History
S 34A(1) substituted by No 38 of 2005. No 38 of 2005, Sch 1[113], provides:
Transitional - paragraph 34A(1)(a) of the
Administrative Appeals Tribunal Act 1975
113(1)
This item applies to a direction if:
(a)
the direction was given under subsection 34(1) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
113(2)
The direction, except to the extent to which it identifies the person who is to preside over a conference, has effect, after the commencement of this item, as if it had been given under paragraph 34A(1)(a) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
No 38 of 2005, Sch 1[114], provides:
Transitional - paragraph 34A(1)(b) of the
Administrative Appeals Tribunal Act 1975
114(1)
This item applies to a direction if:
(a)
the direction was given under subsection 34A(1) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
114(2)
The direction, except to the extent to which it identifies the person who is to be the mediator, has effect, after the commencement of this item, as if it had been given under paragraph 34A(1)(b) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
34A(2)
The President may also direct the holding of conferences of the parties or their representatives in the case of applications made to the Tribunal for review of decisions of a kind specified in the direction.
History
S 34A(2) substituted by No 38 of 2005. No 38 of 2005, Sch 1[116], provides:
Transitional - subsection 34A(2) of the
Administrative Appeals Tribunal Act 1975
116(1)
This item applies to a direction if:
(a)
the direction was given under subsection 34(2) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
116(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 34A(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
34A(3)
The President may also direct that proceedings be referred for a particular alternative dispute resolution process (other than conferencing) in the case of applications made to the Tribunal for review of decisions of a kind specified in the direction.
History
S 34A(3) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
34A(4)
A direction may be given under a particular paragraph of subsection (1):
(a)
whether or not a direction has previously been given under the same or the other paragraph of that subsection in relation to the proceeding; and
(b)
whether or not a direction under subsection (2) or (3) has applied.
History
S 34A(4) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
34A(5)
If a direction under this section is applicable to:
(a)
a proceeding; or
(b)
a part of a proceeding; or
(c)
a matter arising out of a proceeding;
each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.
History
S 34A(5) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
34A(6)-(8)
(Repealed by No 38 of 2005)
History
S 34A(6)-(8) repealed by No 38 of 2005. For transitional provisions see note under s 34. For further transitional provisions see note under s 2A.
34B
(Repealed) SECTION 34B ALTERNATIVE DISPUTE RESOLUTION PROCESSES - PROCEEDING BEFORE THE SMALL TAXATION CLAIMS TRIBUNAL
(Repealed by No 60 of 2015)
History
S 34B repealed by No 60 of 2015, s 3 and Sch 1 item 61, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 34B formerly read:
SECTION 34B ALTERNATIVE DISPUTE RESOLUTION PROCESSES - PROCEEDING BEFORE THE SMALL TAXATION CLAIMS TRIBUNAL
34B(1)
Scope.
This section applies to a proceeding before the Small Taxation Claims Tribunal.
34B(2)
Statement about alternative dispute resolution processes to be given to applicant.
The Registrar, a District Registrar or a Deputy Registrar must give to the applicant:
(a)
if the proceeding relates to an application to which subparagraph 24AC(1)(a)(i) or paragraph 24AC(1)(aa) or (b) applies - when the application is made; or
(b)
if the proceeding relates to an application to which subparagraph 24AC(1)(a)(ii) applies - when the notification referred to in that subparagraph is given;
a statement setting out the procedures to be followed by the Tribunal and the alternative dispute resolution processes that are available under this Act.
34B(3)
Referral of matter for alternative dispute resolution process.
If the Tribunal considers at any time that it may assist in the resolution of the dispute between the parties if:
(a)
the proceeding; or
(b)
any part of the proceeding; or
(c)
any matter arising out of the proceeding;
were dealt with by an alternative dispute resolution process, the Tribunal must:
(d)
direct the holding of a conference of the parties or their representatives in relation to the proceeding, part of the proceeding, or matter, as the case may be; or
(e)
direct that the proceeding, part of the proceeding, or matter, as the case may be, be referred for a particular alternative dispute resolution process (other than conferencing).
History
S 34B(3) inserted by No 38 of 2005. No 38 of 2005, Sch 1[115], provides:
Transitional - paragraph 34B(3)(e) of the
Administrative Appeals Tribunal Act 1975
115(1)
This item applies to a direction if:
(a)
the direction was given under subparagraph 34A(1A)(b)(ii) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
115(2)
The direction, except to the extent to which it identifies the person who is to be the mediator, has effect, after the commencement of this item, as if it had been given under paragraph 34B(3)(e) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
34B(4)
If a direction under this section is applicable to:
(a)
a proceeding; or
(b)
a part of a proceeding; or
(c)
a matter arising out of a proceeding;
each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.
S 34B substituted by No 38 of 2005. For transitional provisions see note under s 2A.
34C
(Repealed) SECTION 34C DIRECTIONS BY PRESIDENT
(Repealed by No 60 of 2015)
History
S 34C repealed by No 60 of 2015, s 3 and Sch 1 item 61, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 34C formerly read:
SECTION 34C DIRECTIONS BY PRESIDENT
34C(1)
The President may give directions about alternative dispute resolution processes.
34C(2)
Directions under subsection (1) may relate to:
(a)
the procedure to be followed in the conduct of an alternative dispute resolution process; and
(b)
the person who is to conduct an alternative dispute resolution process; and
(c)
the procedure to be followed when an alternative dispute resolution process ends.
34C(3)
Subsection (2) does not limit subsection (1).
34C(4)
The President may at any time vary or revoke a direction under subsection (1).
34C(5)
A person is not entitled to conduct an alternative dispute resolution process unless the person is:
(a)
a member; or
(b)
an officer of the Tribunal; or
(c)
a person engaged under section 34H.
S 34C inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 34D
AGREEMENT ABOUT THE TERMS OF A DECISION ETC.
34D(1)
If:
(a)
in the course of an alternative dispute resolution process under this Division, agreement is reached between the parties (including the agency party to a proceeding in the Social Services and Child Support Division who did not participate in the alternative dispute resolution process) or their representatives as to the terms of a decision of the Tribunal:
(i)
in the proceeding; or
(ii)
in relation to the part of the proceeding; or
(iii)
in relation to the matter arising out of the proceeding;
that would be acceptable to the parties; and
(b)
the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c)
7 days pass after lodgment, and none of the parties has notified the Tribunal in writing that he or she wishes to withdraw from the agreement; and
(d)
the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
History
S 34D(1) amended by No 3 of 2022, s 3 and Sch 1 item 27, by inserting "(including the agency party to a proceeding in the Social Services and Child Support Division who did not participate in the alternative dispute resolution process)" in para (a), applicable in relation to an application for review made on or after 18 February 2022.
S 34D(1) inserted by No 38 of 2005. No 38 of 2005, Sch 1[118], provides:
Transitional - paragraph 34D(1)(a) of the
Administrative Appeals Tribunal Act 1975
118(1)
This item applies to an agreement if:
(a)
the agreement was entered into before the commencement of this item; and
(b)
the agreement was an agreement to which paragraph 34A(4)(a) of the Administrative Appeals Tribunal Act 1975 applied; and
(c)
the Tribunal had not exercised its powers under subsection 34A(5) or (6) of that Act, in relation to the agreement, before the commencement of this item.
118(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the agreement were an agreement to which paragraph 34D(1)(a) of that Act applies.
For further transitional provisions see note under s 2A.
34D(2)
If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding a hearing of the proceeding, make a decision in accordance with those terms.
34D(3)
If the agreement relates to:
(a)
a part of the proceeding; or
(b)
a matter arising out of the proceeding;
the Tribunal may, in its decision in the proceeding, give effect to the terms of the agreement without dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates.
Variation or revocation of decision
34D(4)
The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection
(2) or
(3) if:
(a)
the parties, or their representatives, reach agreement on the variation or revocation; and
(b)
the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c)
the variation or revocation appears appropriate to the Tribunal; and
(d)
in the case of a variation - the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied.
History
S 34D(4) inserted by No 60 of 2015, s 3 and Sch 1 item 62, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 34D inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 34E
EVIDENCE NOT ADMISSIBLE
34E(1)
[Inadmissibility of evidence]
Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible:
(a)
in any court; or
(b)
in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or
(c)
in any proceedings before a person authorised by the consent of the parties to hear evidence.
34E(2)
Exceptions.
Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of particular evidence if the parties agree to the evidence being admissible at the hearing.
34E(3)
[Exceptions - reports]
Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of:
(a)
a case appraisal report prepared by a person conducting an alternative dispute resolution process under this Division; or
(b)
a neutral evaluation report prepared by a person conducting an alternative dispute resolution process under this Division;
unless a party to the proceeding notifies the Tribunal before the hearing that he or she objects to the report being admissible at the hearing.
History
S 34E inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 34F
34F
ELIGIBILITY OF PERSON CONDUCTING ALTERNATIVE DISPUTE RESOLUTION PROCESS TO SIT AS A MEMBER OF THE TRIBUNAL
If:
(a)
an alternative dispute resolution process under this Division in relation to a proceeding is conducted by a member of the Tribunal; and
(b)
a party to the proceeding notifies the Tribunal before the hearing that he or she objects to that member participating in the hearing;
that member is not entitled to be a member of the Tribunal as constituted for the purposes of the proceeding.
History
S 34F inserted by No 38 of 2005. For transitional provisions see note under s 2A.
34G
(Repealed) SECTION 34G PARTICIPATION BY TELEPHONE ETC.
(Repealed by No 60 of 2015)
History
S 34G repealed by No 60 of 2015, s 3 and Sch 1 item 63, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 34G formerly read:
SECTION 34G PARTICIPATION BY TELEPHONE ETC.
34G
The person conducting an alternative dispute resolution process under this Division may allow a person to participate by:
(a)
telephone; or
(b)
closed-circuit television; or
(c)
any other means of communication.
S 34G inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 34H
ENGAGEMENT OF PERSONS TO CONDUCT ALTERNATIVE DISPUTE RESOLUTION PROCESSES
34H(1)
[Powers of Registrar]
The Registrar may, on behalf of the Commonwealth, engage persons to conduct one or more kinds of alternative dispute resolution processes under this Division.
34H(2)
[Who Registrar may engage]
The Registrar must not engage a person under subsection (1) unless the Registrar is satisfied, having regard to the person's qualifications and experience, that the person is a suitable person to conduct the relevant kind or kinds of alternative dispute resolution processes under this Division.
History
S 34H inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Former s 34H renumbered to s 34J.
Division 4 - Hearings and evidence
History
Div 4 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 34J
CIRCUMSTANCES IN WHICH HEARING MAY BE DISPENSED WITH
34J(1)
If:
(a)
it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and
(b)
the parties consent to the review being determined without a hearing;
the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.
History
S 34J amended by No 3 of 2022, s 3 and Sch 1 item 15, by inserting "(1)" before "If", applicable in relation to the following: (a) proceedings that arise in the Tribunal on or after 18 February 2022; (b) proceedings that are pending in the Tribunal immediately before 18 February 2022.
S 34J renumbered from s 34B by No 38 of 2005. For transitional provisions see note under s 2A.
Former s 34B inserted by No 175 of 1995, s 3, Sch 2.
34J(2)
For the purposes of subsection
(1), the consent of the agency party to a proceeding in the Social Services and Child Support Division is not required.
History
S 34J(2) inserted by No 3 of 2022, s 3 and Sch 1 item 16, applicable in relation to the following: (a) proceedings that arise in the Tribunal on or after 18 February 2022; (b) proceedings that are pending in the Tribunal immediately before 18 February 2022.
SECTION 35
PUBLIC HEARINGS AND ORDERS FOR PRIVATE HEARINGS, NON-PUBLICATION AND NON-DISCLOSURE
Public hearing
35(1)
Subject to this section, the hearing of a proceeding before the Tribunal must be in public.
Private hearing
35(2)
The Tribunal may, by order:
(a)
direct that a hearing or part of a hearing is to take place in private; and
(b)
give directions in relation to the persons who may be present.
Orders for non-publication or non-disclosure
35(3)
The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)
information tending to reveal the identityof:
(i)
a party to or witness in a proceeding before the Tribunal; or
(ii)
any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or
(b)
information otherwise concerning a person referred to in paragraph (a).
35(4)
The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:
(a)
relates to a proceeding; and
(b)
is any of the following:
(i)
information that comprises evidence or information about evidence;
(ii)
information lodged with or otherwise given to the Tribunal.
History
S 35(4) amended by No 132 of 2015, s 3 and Sch 1 item 2, by substituting "some or all of the parties" for "another party or parties", effective 14 October 2015.
35(5)
In considering whether to give directions under subsection
(2),
(3) or
(4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:
(a)
that hearings of proceedings before the Tribunal should be held in public; and
(b)
that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and
(c)
that the contents of documents lodged with the Tribunal should be made available to all the parties.
However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.
Not applicable to Security Division review of security assessment
35(6)
This section does not apply in relation to a proceeding in the Security Division to which section
39A or
39BA applies.
Note:
See section 35AA.
History
S 35(6) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
History
S 35 substituted by No 60 of 2015, s 3 and Sch 1 item 66, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 35 formerly read:
SECTION 35 HEARINGS TO BE IN PUBLIC EXCEPT IN SPECIAL CIRCUMSTANCES
35(1AA)
Scope.
This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
History
S 35(1AA) inserted by No 175 of 1995.
35(1)
Public hearing.
Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.
35(1A)
If, at a time a hearing is in public, a person participates in the hearing by a means allowed under section 35A, the Tribunal is to take such steps as are reasonably necessary to ensure that the public nature of the hearing is preserved.
History
S 35(1A) inserted by No 31 of 1993.
35(2)
Private hearing etc.
Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:
(a)
direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and
(aa)
give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and
(b)
give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and
(c)
give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.
History
S 35(2) amended by No 26 of 1982; amended by No 175 of 1995.
35(3)
In considering:
(a)
whether the hearing of a proceeding should be held in private; or
(b)
whetherpublication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;
the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.
History
S 35(3) inserted by No 58 of 1977.
SECTION 35AA
ORDERS FOR NON-PUBLICATION AND NON-DISCLOSURE - CERTAIN SECURITY DIVISION PROCEEDINGS
35AA(1)
This section applies in relation to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 35AA(1) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
35AA(2)
The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a)
information tending to reveal the identity of:
(i)
a party to or witness in the proceeding; or
(ii)
any person related to or otherwise associated with any party to or witness in the proceeding; or
(b)
information otherwise concerning a person referred to in paragraph (a); or
(c)
information that relates to the proceeding and is any of the following:
(i)
information that comprises evidence or information about evidence;
(ii)
information lodged with or otherwise given to the Tribunal; or
(d)
the whole or any part of its findings on the review.
History
S 35AA substitutedby No 60 of 2015, s 3 and Sch 1 item 67, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 35AA formerly read:
SECTION 35AA RESTRICTION ON PUBLICATION OF EVIDENCE AND FINDINGS IN A PROCEEDING BEFORE THE SECURITY APPEALS DIVISION
35AA
For the purposes of a proceeding before the Security Appeals Division to which section 39A applies, the Tribunal may give directions prohibiting or restricting the publication of:
(a)
evidence given before the Tribunal; or
(b)
the names and addresses of witnesses before the Tribunal; or
(c)
matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; or
(d)
the whole or any part of its findings on the review.
S 35AA inserted by No 175 of 1995, s 3, Sch 1.
35A
(Repealed) SECTION 35A PARTICIPATION BY TELEPHONE ETC
(Repealed by No 60 of 2015)
History
S 35A repealed by No 60 of 2015, s 3 and Sch 1 item 68, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 35A formerly read:
SECTION 35A PARTICIPATION BY TELEPHONE ETC
35A(1)
A person holding a directions hearing and the Tribunal in the hearing of a proceeding may allow a person to participate by:
(a)
telephone; or
(b)
closed-circuit television; or
(c)
any other means of communication.
History
S 35A(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 35A(1) inserted by No 31 of 1993.
35A(2)
This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
History
S 35A(2) inserted by No 175 of 1995.
SECTION 36
DISCLOSURE NOT REQUIRED: ATTORNEY-GENERAL'S PUBLIC INTEREST CERTIFICATE
36(1AA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 36(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 36(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 69, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 36(1AA) inserted by No 175 of 1995.
36(1)
Attorney-General may issue public interest certificate.
If the Attorney-General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest-
(a)
by reason that it would prejudice the security, defence or international relations of Australia;
(b)
by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet; or
(c)
for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the matter contained in the document should not be disclosed,
the following provisions of this section have effect.
History
S 36(1) amended by No 58 of 1977; No 26 of 1982; No 175 of 1995.
36(2)
Protection of information etc.
A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.
History
S 36(2) amended by No 26 of 1982.
36(3)
Disclosure of information etc.
Where the Attorney-General has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly.
History
S 36(3) substituted by No 58 of 1977; No 26 of 1982.
36(3A)
Attorney-General taken to be a party.
Where, in relation to a proceeding to which the Attorney-General would not, but for this subsection, be a party, the Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Attorney-General shall, for the purposes of this Act, be deemed to be a party to the proceeding.
History
S 36(3A) inserted by No 26 of 1982.
36(4)
What Tribunal must consider in deciding whether to disclose information etc.
In considering whether information or matter contained in a document should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney-General in the certificate as a reason why the disclosure of the information or of the matter contained in the document, as the case may be, would be contrary to the public interest.
History
S 36(4) amended by No 58 of 1977; No 26 of 1982.
36(4AA)-(8)
(Omitted by No 120 of 1988)
SECTION 36A
ANSWERING QUESTIONS WHERE ATTORNEY-GENERAL INTERVENES ON PUBLIC INTEREST GROUNDS
36A(1AA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 36A(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 36A(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 69, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 36A(1AA) inserted by No 175 of 1995.
36A(1)
Intervention by Attorney-General.
Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney-General may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36(1).
History
S 36A(1) inserted by No 58 of 1977; amended by No 175 of 1995.
36A(2)
When person excused from answering question.
Where the Attorney-General so informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless-
(a)
in the case where the reason specified is, or the reasons specified include, a reason referred to in paragraph
36(1)(a) or (b) - a court, on an appeal under section
44 or a reference under section
45, decides that the answering of the question would not be contrary to the public interest; or
(b)
in any other case - the Tribunal decides that the answering of the question would not be contrary to the public interest.
History
S 36A(2) inserted by No 58 of 1977; amended by No 26 of 1982; by No 175 of 1995; No 194 of 1999.
36A(2A)
Attorney-General taken to be a party.
Where the Attorney-General informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest, being a proceeding to which the Attorney-General would not, but for this subsection, be a party, the Attorney-General shall, for the purposes of this Act, be deemed to be a party to the proceeding.
History
S 36A(2A) inserted by No 26 of 1982.
36A(2B)-(6)
(Omitted by No 120 of 1988)
History
S 36A amended by No 26 of 1982; No 120 of 1988.
SECTION 36AA
36AA
INTERPRETATION OF SECTIONS 36B, 36C AND 36D
In sections
36B,
36C and
36D, unless the contrary intention appears:
Attorney-General
includes the Minister administering the ACT Civil and Administrative Tribunal Act 2008 of the Australian Capital Territory.
Cabinet
includes the Australian Capital Territory Executive.
History
S 36AA inserted by No 13 of 2017, s 3 and Sch 1 item 1, effective 22 March 2017.
Former s 36AA inserted by SR No 188 of 1989, reg 3, effective 6 July 1989 (as amending SR No 3 of 1989; repealed by No 13 of 2017, s 3 and Sch 1 item 41).
SECTION 36B
DISCLOSURE NOT REQUIRED: STATE ATTORNEY-GENERAL'S PUBLIC INTEREST CERTIFICATE
36B(1AA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 36B(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 36B(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 69, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 36B(1AA) inserted by No 175 of 1995.
36B(1)
State Attorney-General may issue public interest certificate.
If the Attorney-General of a State certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:
(a)
by reason that it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State; or
(b)
for any other specified reason that could form the basis for a claim by the Crown in right of the State in a judicial proceeding that the information or the matter contained in the document should not be disclosed;
the following provisions of this section have effect.
36B(2)
Protection of information etc.
A person who is required by or under this Act to disclose the information, or to produce to, or lodge with, the Tribunal the document in which the matter is contained, for the purposes of a proceeding is not excused from the requirement, but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information, or the matter contained in the document, is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.
36B(3)
Disclosure of information etc.
Where the Attorney-General of a State has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly.
36B(4)
State Attorney-General taken to be a party.
Where, in relation to a proceeding to which the Attorney-General of a State would not, but for this subsection, be a party, that Attorney-General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a), that Attorney-General shall, for the purposes of this Act, be taken to be a party to the proceeding.
36B(5)
What Tribunal must consider in deciding whether to disclose information etc.
In considering whether information, or matter contained in a document, should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the Tribunal's functions that the parties to a proceeding should be made aware of all relevant matters, but shall pay due regard to any reason that the Attorney-General of the State has specified in the certificate as a reason why the disclosure of the information, or of the matter contained in the document, as the case may be, would be contrary to the public interest.
36B(6)
(Repealed by No 59 of 2015)
History
S 36B(6) repealed by No 59 of 2015, s 3 and Sch 1 item 88, effective 18 June 2015. No 59 of 2015, s 3 and Sch 1 item 196 contains the following transitional provision:
Part 2 - Transitional provisions
…
Division 7 - Administrative Appeals Tribunal
196 Public interest
Despite the amendments of sections 36B, 36C and 36D of the Administrative Appeals Tribunal Act 1975 made by Part 1 of this Schedule, those sections continue to apply after the interim transition time, in relation to matters that concern Norfolk Island, as if:
(a)
the amendments had not been made; and
(b)
the definitions of
Attorney-General
in subsections 36B(6), 36C(4) and 36D(8) were modified by omitting "the Norfolk Island Justice Minister", and substituting "the Commonwealth Attorney-General"; and
(c)
paragraph (a) of the definition of
Cabinet
in subsection 36B(6) were modified by omitting "consists", and substituting "consisted".
…
S 36B(6) formerly read:
Norfolk Island
36B(6)
In this section:
Attorney-General
, in relation to Norfolk Island, means the Norfolk Island Justice Minister.
Cabinet
, in relation to Norfolk Island, means a body that:
(a)
consists of Norfolk Island Ministers; and
(b)
corresponds to the Cabinet.
State
includes Norfolk Island.
S 36B(6) inserted by No 139 of 2010, s 3 and Sch 1 item 143, effective 1 January 2011.
History
S 36B inserted by No 120 of 1988.
SECTION 36C
ANSWERING QUESTIONS WHERE STATE ATTORNEY-GENERAL INTERVENES ON PUBLIC INTEREST GROUNDS
36C(1AA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 36C(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 36C(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 69, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 36C(1AA) inserted by No 175 of 1995.
36C(1)
Intervention by State Attorney-General.
Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney-General of a State may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36B(1).
36C(2)
When person excused from answering question.
Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless:
(a)
if the reason specified is, or the reasons specified include, a reason referred to in paragraph
36B(1)(a) - a court, on an appeal under section
44 or a reference under section
45, decides that the answering of the question would not be contrary to the public interest; or
(b)
otherwise - the Tribunal decides that the answering of the question would not be contrary to the public interest.
History
S 36C(2) amended by No 194 of 1999.
36C(3)
State Attorney-General taken to be a party.
Where the Attorney-General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest and, but for this subsection, that Attorney-General would not be a party to the proceeding, that Attorney-General shall, for the purposes of this Act, be taken to be a party to the proceeding.
36C(4)
(Repealed by No 59 of 2015)
History
S 36C(4) repealed by No 59 of 2015, s 3 and Sch 1 item 88, effective 18 June 2015. For transitional provision, see note under s 36B(6). S 36C(4) formerly read:
Norfolk Island
36C(4)
In this section:
Attorney-General
, in relation to Norfolk Island, means the Norfolk Island Justice Minister.
State
includes Norfolk Island.
S 36C(4) inserted by No 139 of 2010, s 3 and Sch 1 item 144, effective 1 January 2011.
History
S 36C inserted by No 120 of 1988.
SECTION 36D
PUBLIC INTEREST QUESTIONS UNDER SECTIONS 36, 36A AND 36C
36D(1AA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 36D(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 36D(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 69, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 36D(1AA) inserted by No 175 of 1995.
36D(1)
Parties to be notified of Tribunal's decision.
As soon as practicable after making a decision:
(a)
under subsection
36(3) or
36B(3) in relation to information, or matter contained in a document, in relation to a proceeding; or
(b)
under paragraph
36A(2)(b) or
36C(2)(b) in relation to the answering of a question at the hearing of a proceeding;
the Tribunal shall give to each party to the proceeding a document setting out the terms of the Tribunal's decision.
36D(2)
Question of law.
For the purposes of this Act:
(a)
the question whether information, or matter contained in a document, should be disclosed to the parties to a proceeding; or
(b)
the question whether the answering of a question would be contrary to the public interest;
is a question of law.
36D(3)
Constitution of Tribunal.
The Tribunal's power to make a decision under subsection 36(3) or 36B(3) or paragraph 36A(2)(b) or 36C(2)(b) may be exercised only by the Tribunal constituted by a member who is a Judge of the Federal Court of Australia.
History
S 36D(3) amended by No 60 of 2015, s 3 and Sch 1 item 70, by omitting "presidential" before "member who is", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
36D(4)
Appeals.
A decision by the Tribunal:
(a)
under subsection
36(3) or
36B(3) as to whether or not information, or matter contained in a document, should be disclosed to all or any of the parties to a proceeding; or
(b)
under paragraph
36A(2)(b) or
36C(2)(b) that the answering of a question at the hearing of a proceeding would, or would not, be contrary to the public interest;
is a decision by the Tribunal in that proceeding for the purposes of section 44.
36D(5)
Disclosure of information etc. to officers and staff of Tribunal.
Nothing in section 36 or 36B prevents the disclosure of information, or of matter contained in a document, to a member of the staff of the Tribunal or to an officer of the Tribunal in the course of the performance of his or her duties as a member of the staff of the Tribunal or an officer of the Tribunal.
History
S 36D(5) amended by No 60 of 2015, s 3 and Sch 1 items 71 and 72, by substituting "an officer of the Tribunal" for "the Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar" and "an officer of the Tribunal" for "as Registrar, District Registrar, Conference Registrar or Deputy Registrar", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 36D(5) amended by No 157 of 1989; amended by No 175 of 1995.
36D(6)
Public interest.
Sections 36 and 36B exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.
36D(7)
Commonwealth Attorney-General or State Attorney-General may appear or be represented.
The Attorney-General, or the Attorney-General of a State:
(a)
may appear before the Tribunal personally, or may be represented before the Tribunal by a barrister, solicitor or other person, in order to inform the Tribunal of his or her opinion in accordance with section
36A or
36C; or
(b)
may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion.
36D(8)
(Repealed by No 59 of 2015)
History
S 36D(8) repealed by No 59 of 2015, s 3 and Sch 1 item 88, effective 18 June 2015. For transitional provision, see note under s 36B(6). S 36D(8) formerly read:
Norfolk Island
36D(8)
In this section:
Attorney-General
, in relation to Norfolk Island, means the Norfolk Island Justice Minister.
State
includes Norfolk Island.
S 36D(8) inserted by No 139 of 2010, s 3 and Sch 1 item 145, effective 1 January 2011.
History
S 36D inserted by No 120 of 1988.
SECTION 37
LODGING OF MATERIAL DOCUMENTS WITH TRIBUNAL
37(1AAA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 37(1AAA) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 37(1AAA) amended by No 60 of 2015, s 3 and Sch 1 item 73, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 37(1AAA) inserted by No 175 of 1995.
Decision-maker must lodge material documents
37(1)
Subject to this section, a person who has made a decision that is the subject of an application for review (other than second review) by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of:
(a)
a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)
subject to any directions given under section
18B, every other document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal.
History
S 37(1) substituted by No 60 of 2015, s 3 and Sch 1 item 74, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 37(1) formerly read:
37(1)
Decision-maker must lodge statement of reasons and relevant documents.
Subject to this section, a person who has made a decision that is the subject of an application for review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:
(a)
a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision; and
(b)
every other document or part of a document that is in the person's possession or under the person's control and is relevant to the review of the decision by the Tribunal.
S 37(1) amended by No 38 of 2005. No 38 of 2005, Sch 1[125], provides:
Transitional - paragraph 37(1)(b) of the
Administrative Appeals Tribunal Act 1975
The amendment made by item 124 does not apply to a proceeding by way of an application to the Tribunal for review of a decision made by a person if, before the commencement of this item, the person had complied with paragraph 37(1)(b) of the Administrative Appeals Tribunal Act 1975 in relation to the proceeding.
For further transitional provisions see note under s 2A.
S 37(1) substituted by No 58 of 1977; amended by No 143 of 1979; substituted by No 175 of 1995.
37(1AAB)
Subject to this section, if the Tribunal has made a decision that is the subject of an application for second review:
(a)
the person who made the decision that was reviewed by the Tribunal; or
(b)
for an application referred to in paragraph 96A(a) or (c) of the
Child Support (Registration and Collection) Act 1988 - the Registrar within the meaning of that Act;
must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal a copy of any document of a kind referred to in paragraph (1)(b) that is required to be lodged by a direction given under section 18B.
History
S 37(1AAB) inserted by No 60 of 2015, s 3 and Sch 1 item 74, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
37(1AA)
The Tribunal may direct a person who is required to lodge a copy of a statement or document under subsection
(1) or
(1AAB) to lodge a specified number of additional copies with the Tribunal, within the specified period. The person must comply with the direction.
History
S 37(1AA) substituted by No 60 of 2015, s 3 and Sch 1 item 74, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 37(1AA) formerly read:
37(1AA)
The Tribunal may direct a person who is required to lodge with the Tribunal 2 copies of a statement or other document or part of a document under subsection (1) to lodge with the Tribunal such number of additional copies, and within such period, as the Tribunal determines and, if the Tribunal gives such a direction, the person must comply with it.
S 37(1AA) inserted by No 175 of 1995.
Document setting out reasons for decision may be lodged instead of statement
37(1AB)
The Tribunal may direct a person who is required to lodge a copy of a statement under paragraph
(1)(a) to lodge instead of that statement a copy of a document setting out the reasons for the relevant decision, within the specified period. The person must comply with the direction.
History
S 37(1AB) substituted by No 60 of 2015, s 3 and Sch 1 item 74, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 37(1AB) formerly read:
37(1AB)
Document setting out reasons for decision may be lodged instead of statement.
Subject to any other Act, the President may, in relation to a particular decision or class of decisions, direct that the person who is obliged to lodge with the Tribunal the statement referred to in paragraph (1)(a) may, in lieu of lodging the statement, lodge with the Tribunal, within the period applicable under subsection (1), 2 copies of the document setting out the reasons for the decision that is the subject of the application for review.
S 37(1AB) inserted by No 175 of 1995.
37(1AC)
If a person has, in accordance with a direction given under subsection
(1AB), lodged with the Tribunal a copy of the document setting out the reasons for a decision, the Tribunal may at any later time direct the person to lodge with the Tribunal, within such period as the Tribunal determines, a statement in accordance with paragraph
(1)(a).
History
S 37(1AC) amended by No 60 of 2015, s 3 and Sch 1 item 75, by substituting "a copy" for "2 copies", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 37(1AC) inserted by No 175 of 1995.
37(1AD)
If a person who has made a decision that is the subject of an application for a review by the Tribunal has given to a party to the proceeding a statement in relation to the decision under subsection
28(1), the reference in paragraph
(1)(a) to a statement is taken to be a reference to the statement given under subsection
28(1).
History
S 37(1AD) inserted by No 175 of 1995.
Statement of reasons and relevant documents to be given to other parties
37(1AE)
A person who is required under subsection
(1),
(1AAB) or
(1AB) to lodge a copy of a statement or document with the Tribunal within a particular period must, unless the Tribunal directs otherwise, also give a copy of the statement or document to each other party to the proceeding, within the same period.
History
S 37(1AE) substituted by No 60 of 2015, s 3 and Sch 1 item 76, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 37(1AE) formerly read:
37(1AE)
Statement of reasons and relevant documents to be given to other party.
A person who is required under subsection (1) or (1AB) to lodge 2 copies of a statement or other document or part of a document with the Tribunal under this section within a particular period must also give a copy of the statement or other document or part of a document within that period to each other party to the proceeding.
S 37(1AE) inserted by No 175 of 1995.
37(1AF)
When document not required to be lodged.
If:
(a)
a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph
(1)(b) or subsection (1AAB) to lodge a copy of a document with the Tribunal in respect of the application; and
(b)
within the period applicable under subsection
(1) the person:
(i)
applies to the Tribunal for a direction under subsection 35(3) or (4) in relation to the document and lodges with the Tribunal, together with the application for the direction, a copy of the document; and
(ii)
gives a copy of the application for the direction to each party to the application for review;
the person is not required to comply with paragraph
(1)(b) or subsection
(1AAB) in relation to the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.
History
S 37(1AF) amended by No 60 of 2015, s 3 and Sch 1 items 77-79, by substituting "or subsection (1AAB) to lodge a copy" for "to lodge 2 copies of a document or a part" in para (a), substituting para (b)(i) and "paragraph (1)(b) or subsection (1AAB) in relation to" for "paragraph (1)(b) in relation to the document or part of", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (b)(i) formerly read:
(i)
applies to the Tribunal for a direction under subsection 35(2) in relation to the document or part of the document and lodges with the Tribunal, together with the application for the direction, 2 copies of the document or part of the document; and
S 37(1AF) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 37(1AF) inserted by No 175 of 1995.
37(1AG)
Subsection
(1AF) does not affect the obligation of a person referred to in that subsection to comply with paragraph
(1)(b) or subsection
(1AAB) in relation to a document to which that subsection does not apply.
History
S 37(1AG) amended by No 60 of 2015, s 3 and Sch 1 item 80, by substituting "or subsection (1AAB) in relation to" for "in relation to any document or part of", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 37(1AG) inserted by No 175 of 1995.
37(1A)
Tribunal may shorten deadline for lodging documents.
If it appears to the Tribunal that a party to a proceeding before the Tribunal for a review of a decision would or might suffer hardship if the period prescribed by subsection (1) or (1AAB) for lodging with the Tribunal for the purposes of the review the copy of the documents mentioned in that subsection is not shortened, the Tribunal may, upon request being made by that party, make an order directing that the copy be lodged with the Tribunal within such period (being a period of less than 28 days) after the person who made the decision receives or received notice of the application as is specified in the order.
History
S 37(1A) amended by No 60 of 2015, s 3 and Sch 1 items 81-84, by inserting "or (1AAB)", substituting "the copy" for "the copies", omitting ", as prescribed," after "request being made" and substituting "the copy" for "those copies", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 37(1A) inserted by No 143 of 1979.
37(1B)
What happens if application lodged out of time.
Where an application that has been lodged with the Tribunal for a review of a decision was not lodged within the time within which it was required by section 29 to be lodged, the reference in subsection (1) or (1AAB) to the period of 28 days after the person who made the decision receives notice of the application for a review shall be read as a reference to the period of 28 days after the day on which that person so receives notice or the day on which the Tribunal makes a determination extending the time for the making of the application for a review, whichever is the later.
History
S 37(1B) amended by No 60 of 2015, s 3 and Sch 1 item 85, by inserting "or (1AAB)", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 37(1B) inserted by No 26 of 1982.
37(1C)
The Tribunal may, upon request being made by a party to a proceeding before the Tribunal for a review of a decision, direct, by order, that subsection
(1B) shall have effect in relation to an application for a review of the decision as if the last reference in that subsection to a period of 28 days were a reference to such shorter period as is specified in the order.
History
S 37(1C) amended by No 60 of 2015, s 3 and Sch 1 item 86, by omitting ", as prescribed," after "request being made", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 37(1C) inserted by No 26 of 1982.
37(1D)
Subsection
(1B) does not apply in relation to an application for a review of a decision if the decision is the subject of another application to which subsection
(1B) does not apply.
History
S 37(1D) inserted by No 26 of 1982.
37(2)
Tribunal may require other documents to be lodged.
Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice.
History
S 37(2) amended by No 38 of 2005. No 38 of 2005, Sch 1[129], provides:
Application - subsection 37(2) of the
Administrative Appeals Tribunal Act 1975
The amendment made by item 128 does not apply to a notice under subsection 37(2) of the Administrative Appeals Tribunal Act 1975 if the notice was served before the commencement of this item.
For further transitional provisions see note under s 2A.
S 37(2) substituted by No 58 of 1977; amended by No 175 of 1995.
37(3)
Privilege and public interest.
This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.
History
S 37(3) substituted by No 58 of 1977.
37(4)
(Repealed by No 38 of 2005)
History
S 37(4) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 38
POWER OF TRIBUNAL TO OBTAIN ADDITIONAL STATEMENTS
38(1)
The Tribunal may order a person who has lodged a statement with the Tribunal in accordance with paragraph
37(1)(a) to lodge an additional statement with the Tribunal, within the time specified in the order, containing further and better particulars in relation to any one or more of the following:
(a)
particulars of findings on material questions of fact;
(b)
reference to the evidence or other material on which those findings were based;
(c)
particulars of the reasons for the decision.
38(2)
Subsection
(1) does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 38(2) amended by No 33 of 2023, s 3 and Sch 1 item 44(c), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
History
S 38 substituted by No 60 of 2015, s 3 and Sch 1 item 87, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 38 formerly read:
SECTION 38 POWER OF TRIBUNAL TO OBTAIN ADDITIONAL STATEMENTS
38(1)
Where the Tribunal considers that a statement referred to in paragraph 37(1)(a) that is lodged by a person with the Tribunal does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for a decision, the Tribunal may order that person to lodge with the Tribunal, within a time specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.
History
S 38(1) substituted by No 58 of 1997, s 23.
38(2)
This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
History
S 38(2) inserted by No 175 of 1995, s 3, Sch 1.
SECTION 38AA
ONGOING REQUIREMENT FOR LODGING MATERIAL DOCUMENTS WITH TRIBUNAL
38AA(1)
If:
(a)
subsection
37(1) or
(1AAB) applies to a person in relation to an application for review of a decision; and
(b)
at any time after the end of the applicable period under the subsection and before the Tribunal determines the review:
(i)
the person obtains possession of a document; and
(ii)
the document is relevant to the review; and
(iii)
a copy of the document has not been lodged with the Tribunal in accordance with the subsection;
the person must, subject to any directions given under section 18B, lodge a copy of the document with the Tribunal as soon as practicable after obtaining possession.
38AA(2)
Subsections
37(1AA),
(1AE),
(1AF) and
(1AG) apply in relation to the requirement in subsection (1) of this section as if:
(a)
that requirement were the requirement referred to in those subsections; and
(b)
the references in subsections
37(1AE) and
(1AF) to lodging or giving within a period were references to lodging or giving as soon as practicable.
History
S 38AA inserted by No 60 of 2015, s 3 and Sch 1 item 87, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 38A
DIRECTOR-GENERAL OF SECURITY TO LODGE CERTAIN MATERIAL WITH TRIBUNAL
38A(1)
If an application for review of a security assessment is made in a case in which the ASIO Minister has given a certificate certifying in accordance with paragraph 38(2)(b) of the
Australian Security Intelligence Organisation Act 1979, the Director-General of Security must, within 30 days after receiving notice of the application, lodge with the Tribunal a copy of the certificate, together with a copy of the whole of the assessment.
History
S 38A(1) amended by No 31 of 2018, s 3 and Sch 2 item 2, by substituting "ASIO Minister" for "Attorney-General", effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 38A(1) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[9].
38A(1A)
If an application for review of a security clearance suitability assessment is made in a case in which the ASIO Minister has given a certificate certifying in accordance with paragraph 83A(4)(b) of the
Australian Security Intelligence Organisation Act 1979, the Director-General of Security must, as soon as practicable after receiving notice of the application, lodge with the Tribunal:
(a)
a copy of the certificate; and
(b)
a copy of the whole of the suitability assessment (including a copy of the statement of grounds prepared for the security clearance suitability assessment under section 82G of that Act).
Note:
The statement of grounds for a security clearance suitability assessment is taken to be part of the assessment (see subsection 82G(3) of the Australian Security Intelligence Organisation Act 1979).
History
S 38A(1A) inserted by No 33 of 2023, s 3 and Sch 1 item 26, effective 1 July 2023.
38A(1B)
If an application for review of a security clearance decision is made, the Director-General of Security must, as soon as practicable after receiving notice of the application, lodge with the Tribunal:
(a)
a copy of the statement of grounds prepared for the security clearance decision under section 83C of the
Australian Security Intelligence Organisation Act 1979; and
(b)
in a case in which the ASIO Minister has given a certificate certifying in accordance with subsection 83C(6) of that Act - a copy of the certificate.
History
S 38A(1B) inserted by No 33 of 2023, s 3 and Sch 1 item 26, effective 1 July 2023.
38A(2)
The Tribunal must not, at any time, tell the applicant of the existence of, or permit the applicant to have access to any copy or particulars of, a certificate of the ASIO Minister referred to in subsection
(1),
(1A) or
(1B) or any matter to which the certificate relates.
History
S 38A(2) amended by No 33 of 2023, s 3 and Sch 1 item 27, by inserting ", (1A) or (1B)", effective 1 July 2023.
S 38A(2) amended by No 31 of 2018, s 3 and Sch 2 item 3, by substituting "ASIO Minister" for "Attorney-General", effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 38A(2) inserted by No 175 of 1995, s 3, Sch 1.
SECTION 39
RIGHTS OF PARTIES TO PRESENT CASE - DIVISIONS OTHER THAN SECURITY DIVISION
39(1)
Subject to sections
35,
36 and
36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.
History
S 39(1) amended by No 120 of 1988; No 175 of 1995.
39(2)
This section does not apply to:
(a)
a proceeding in the Security Division to which section
39A or
39BA applies; or
(b)
the agency party to a proceeding in the Social Services and Child Support Division.
Note:
Section 39AA deals with the rights of the agency party to a proceeding in the Social Services and Child Support Division.
History
S 39(2) amended by No 33 of 2023, s 3 and Sch 1 item 44(d), by substituting "section 39A or 39BA" for "section 39A" in para (a), effective 1 July 2023.
S 39(2) amended by No 3 of 2022, s 3 and Sch 1 items 18 and 19, by substituting para (b) and inserting the note, applicable in relation to the following: (a) proceedings that arise in the Tribunal on or after 18 February 2022; (b) proceedings that are pending in the Tribunal immediately before 18 February 2022. Para (b) formerly read:
(b)
a proceeding in the Social Services and Child Support Division (see section 39AA).
S 39(2) substituted by No 60 of 2015, s 3 and Sch 1 item 89, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 39(2) formerly read:
39(2)
This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
S 39(2) inserted by No 175 of 1995.
39(3)
This section does not limit subsection
25(4A) (Tribunal may determine scope of review).
History
S 39(3) inserted by No 60 of 2015, s 3 and Sch 1 item 89, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 39AA
SUBMISSIONS BY AGENCY PARTY IN SOCIAL SERVICES AND CHILD SUPPORT DIVISION
39AA(1)
(Repealed by No 3 of 2022)
History
S 39AA(1) repealed by No 3 of 2022, s 3 and Sch 1 item 21, applicable in relation to the following: (a) proceedings that arise in the Tribunal on or after 18 February 2022; (b) proceedings that are pending in the Tribunal immediately before 18 February 2022. S 39AA(1) formerly read:
Parties other than agency parties
39AA(1)
A party (other than the agency party) to a proceeding before the Tribunal in the Social Services and Child Support Division may make oral or written submissions to the Tribunal, or both oral and written submissions.
39AA(2)
The agency party to a proceeding before the Tribunal in the Social Services and Child Support Division may make written submissions to the Tribunal.
39AA(3)
The agency party may, by writing, request the Tribunal for permission to make:
(a)
oral submissions to the Tribunal; or
(b)
both oral and written submissions to the Tribunal.
The request must explain how such submissions would assist the Tribunal.
39AA(4)
The Tribunal may, by writing, grant the request if, in the opinion of the Tribunal, such submissions would assist the Tribunal.
39AA(5)
The Tribunal may order the agency party to a proceeding in the Social Services and Child Support Division to make:
(a)
oral submissions to the Tribunal; or
(b)
written submissions to the Tribunal; or
(c)
both oral and written submissions to the Tribunal;
if, in the opinion of the Tribunal, such submissions would assist the Tribunal.
History
S 39AA inserted by No 60 of 2015, s 3 and Sch 1 item 90, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 39A
PROCEDURE IN SECURITY DIVISION REVIEW OF SECURITY ASSESSMENT
39A(1)
Review of security assessment.
If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section.
History
S 39A(1) inserted by No 175 of 1995.
39A(2)
Parties.
The parties to the proceeding are the Director-General of Security and the applicant, but the Commonwealth agency, State or authority of a State to which the assessment is given is entitled to adduce evidence and make submissions.
History
S 39A(2) amended by No 82 of 2016, s 3 and Sch 12 item 11, by inserting ", State or authority of a State", effective 30 November 2016.
S 39A(2) inserted by No 175 of 1995.
39A(3)
Director-General of Security must present all relevant information.
It is the duty of the Director-General of Security to present to the Tribunal all relevant information available to the Director-General, whether favourable or unfavourable to the applicant.
History
S 39A(3) inserted by No 175 of 1995.
39A(4)
Member may require parties to attend etc.
A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.
History
S 39A(4) amended by No 60 of 2015, s 3 and Sch 1 item 92, by substituting "A member who is to participate, or who is participating, in" for "The presidential member who is to preside, or is presiding, at", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 39A(4) inserted by No 175 of 1995.
39A(5)
Proceedings to be in private.
The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time.
History
S 39A(5) inserted by No 175 of 1995.
39A(6)
Right of parties etc. to be present.
Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director-General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given.
History
S 39A(6) amended by No 82 of 2016, s 3 and Sch 12 item 11, by inserting ", State or authority of a State", effective 30 November 2016.
S 39A(6) inserted by No 175 of 1995.
39A(7)
The Director-General of Security or a person representing the Director-General, and a person representing the Commonwealth agency, State or authority of a State to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.
History
S 39A(7) amended by No 82 of 2016, s 3 and Sch 12 item 11, by inserting ", State or authority of a State", effective 30 November 2016.
S 39A(7) inserted by No 175 of 1995.
39A(8)
Security/defence certificate.
The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General of Security or the Commonwealth agency, State or authority of a State to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.
History
S 39A(8) amended by No 31 of 2018, s 3 and Sch 2 item 4, by substituting "ASIO Minister" for "Minister administering the Australian Security Intelligence Organisation Act 1979 (the
responsible Minister
)", effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 39A(8) amended by No 82 of 2016, s 3 and Sch 12 item 11, by inserting ", State or authority of a State", effective 30 November 2016.
S 39A(8) inserted by No 175 of 1995; amended by No 161 of 1999.
39A(9)
If such a certificate is given:
(a)
the applicant must not be present when the evidence is adduced or the submissions are made; and
(b)
a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents.
History
S 39A(9) amended by No 31 of 2018, s 3 and Sch 2 item 5, by substituting "ASIO Minister" for "responsible Minister" in para (b), effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 39A(9) inserted by No 175 of 1995.
39A(10)
If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.
Penalty: Imprisonment for 2 years.
Note:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
History
S 39A(10) inserted by No 175 of 1995.
39A(11)
Protection of identity of person giving evidence.
If the Director-General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General of Security is not revealed.
History
S 39A(11) inserted by No 175 of 1995.
39A(12)
Evidence and submissions.
The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director-General of Security and any evidence or submissions that the Commonwealth agency, State or authority of a State to which the assessment was given may wish to adduce or make.
History
S 39A(12) amended by No 82 of 2016, s 3 and Sch 12 item 11, by inserting ", State or authority of a State", effective 30 November 2016.
S 39A(12) inserted by No 175 of 1995.
39A(13)
The Tribunal must next permit the applicant, ifhe or she so desires, to adduce evidence before, and make submissions to, the Tribunal.
History
S 39A(13) inserted by No 175 of 1995.
39A(14)
The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence.
History
S 39A(14) inserted by No 175 of 1995.
39A(15)
If a person invited or summoned to give evidence under subsection (14) is:
(a)
an ASIO employee or ASIO affiliate; or
(b)
an officer or employee of the Commonwealth agency, State or authority of a State to which the assessment was given;
subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director-General of Security or that agency, State or authority, as the case may be.
History
S 39A(15) amended by No 82 of 2016, s 3 and Sch 12 items 12 and 13, by inserting ", State or authority of a State" in para (b) and inserting ", State or authority", effective 30 November 2016.
S 39A(15) substituted by No 108 of 2014, s 3 and Sch 1 item 33, effective 30 October 2014. S 39A(15) formerly read:
39A(15)
If a person invited or summoned to give evidence under subsection (14) is an officer or employee of the Australian Security Intelligence Organisation or of the Commonwealth agency to which the assessment was given, subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director-General of Security or that agency, as the case may be.
S 39A(15) inserted by No 175 of 1995; amended by No 161 of 1999.
39A(16)
If:
(a)
a party presents his or her case to the Tribunal; and
(b)
after that case has been presented, the other party adduces evidence; and
(c)
the Tribunal thinks that, because of evidence adduced by the other party, the first-mentioned party should be further heard;
the Tribunal must give the first-mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates.
History
S 39A(16) inserted by No 175 of 1995.
39A(17)
A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question.
History
S 39A(17) amended by No 60 of 2015, s 3 and Sch 1 item 93, by substituting "presiding member" for "presidential member presiding", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 39A(17) inserted by No 175 of 1995.
39A(18)
Dismissal of application.
If the applicant fails within a reasonable time:
(a)
to proceed with the application; or
(b)
to comply with a direction by the Tribunal in relation to the application;
the President or an authorised member may dismiss the application without proceeding to review the security assessment.
History
S 39A(18) amended by No 132 of 2015, s 3 and Sch 1 item 3, by substituting "the President or an authorised member" for "a presidential member or senior member, on behalf of the Tribunal,", effective 14 October 2015.
S 39A(18) inserted by No 175 of 1995.
SECTION 39BA
PROCEDURE IN SECURITY DIVISION REVIEW OF SECURITY CLEARANCE DECISION OR SECURITY CLEARANCE SUITABILITY ASSESSMENT
Review of security clearance decision or security clearance suitability assessment
39BA(1)
If an application for a review of a security clearance decision or security clearance suitability assessment is made to the Tribunal, the Tribunal is to review the decision or suitability assessment in accordance with this section.
Parties
39BA(2)
The parties to the proceeding are the Director-General of Security and the applicant, but each of the following bodies (the
relevant body
) is entitled to adduce evidence and make submissions:
(a)
for a review of a security clearance decision - the sponsoring agency for the security clearance in relation to which the security clearance decision was made;
(b)
for a review of a security clearance suitability assessment - the following:
(i)
the security vetting agency to which the suitability assessment was given;
(ii)
the sponsoring agency for the security clearance in relation to which the suitability assessment was given, if that agency was also given the suitability assessment by the Australian Security Intelligence Organisation.
Director-General of Security must present all relevant information
39BA(3)
It is the duty of the Director-General of Security to present to the Tribunal all information available to the Director-General (whether favourable or unfavourable to the applicant) that is relevant to the findings made in the statement of grounds for the security clearance decision or security clearance suitability assessment.
39BA(4)
Without limiting subsection
(3), the Director-General of Security may present to the Tribunal:
(a)
a copy of any standard (or part thereof) certified in writing by the Director-General as a standard relating to the Commonwealth's highest level of security clearance that was used to make the security clearance decision or security clearance suitability assessment; or
(b)
a copy of any standard (or part thereof) certified in writing by the Director-General as a current standard relating to the Commonwealth's highest level of security clearance.
Note:
A standard relating to the Commonwealth's highest level of security clearance is part of the Australian Government's framework of protective security policy.
39BA(5)
To avoid doubt, the Director-General of Security may present to the Tribunal both copies of a standard (or part thereof) referred to in paragraphs
(4)(a) and
(b).
Member may require parties to attend etc.
39BA(6)
A member who is to participate, or who is participating, in the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.
Proceedings to be in private
39BA(7)
The proceedings are to be in private and, subject to this section, the Tribunal is to determine which people may be present at any time.
Right of parties etc. to be present
39BA(8)
Subject to subsections
(9) and
(12), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director-General of Security or the relevant body.
39BA(9)
The applicant and any person representing the applicant must not be present when the Tribunal is hearing submissions made or evidence adduced in relation to any part of a copy of any standard presented to the Tribunal under subsection
(4) that has not already been disclosed to the applicant.
39BA(10)
The Director-General of Security or a person representing the Director-General, and a person representing the relevant body, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.
Security or defence certificate
39BA(11)
The ASIO Minister may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director-General of Security or the relevant body are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.
39BA(12)
If such a certificate is given:
(a)
the applicant must not be present when the evidence is adduced or the submissions are made; and
(b)
a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the ASIO Minister consents.
39BA(13)
A person representing the applicant commits an offence if:
(a)
the person is present when evidence to which a certificate given under subsection
(11) relates is adduced or submissions to which such a certificate relates are made; and
(b)
the person discloses any such evidence or submission to the applicant or to any other person.
Note:
Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.
Penalty: Imprisonment for 2 years.
Protection of identity of person giving evidence
39BA(14)
If the Director-General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director-General of Security is not revealed.
Evidence and submissions
39BA(15)
The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director-General of Security and any evidence or submissions that the relevant body may wish to adduce or make.
39BA(16)
The Tribunal must next permit the applicant, if the applicant so desires, to adduce evidence before, and make submissions to, the Tribunal.
39BA(17)
The Tribunal may, on its own initiative and at any stage of the proceeding, invite a person to give evidence or cause a person to be summoned to give evidence.
39BA(18)
If a person invited or summoned to give evidence under subsection
(17) is:
(a)
an ASIO employee or ASIO affiliate; or
(b)
an officer or employee of the relevant body;
subsection (11) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director-General of Security or the relevant body, as the case may be.
39BA(19)
If:
(a)
a party presents the party's case to the Tribunal; and
(b)
after that case has been presented, the other party adduces evidence; and
(c)
the Tribunal thinks that, because of evidence adduced by the other party, the first-mentioned party should be further heard;
the Tribunal must give the first-mentioned party an opportunity of adducing further evidence and submissions related to that further evidence, but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (11) relates.
39BA(20)
A member of the Tribunal may ask questions of a witness before the Tribunal and the presiding member may require a witness to answer any such question.
Dismissal of application
39BA(21)
If the applicant fails within a reasonable time:
(a)
to proceed with the application; or
(b)
to comply with a direction by the Tribunal in relation to the application;
the President or an authorised member may dismiss the application without proceeding to review the security clearance decision or security clearance suitability assessment.
Delegation
39BA(22)
The ASIO Minister may, by signed writing, delegate the ASIO Minister's power under subsection
(11) to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee.
39BA(23)
In exercising a power under a delegation under subsection
(22), the delegate must comply with any written directions of the ASIO Minister.
History
S 39BA inserted by No 33 of 2023, s 3 and Sch 1 item 28, effective 1 July 2023.
SECTION 39B
CERTAIN DOCUMENTS AND INFORMATION NOT TO BE DISCLOSED IN CERTAIN SECURITY DIVISION REVIEWS
Scope
39B(1)
This section applies to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 39B(1) amended by No 33 of 2023, s 3 and Sch 1 item 44(e), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 39B(1) amended by No 60 of 2015, s 3 and Sch 1 item 95, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 39B(1) inserted by No 175 of 1995, s 3, Sch 1.
ASIO Minister may issue public interest certificate
39B(2)
If the ASIO Minister certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:
(a)
because it would prejudice security or the defence or international relations of Australia; or
(b)
because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or
(c)
for any other reason stated in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information or the contents of the document should not be disclosed;
the following provisions of this section have effect.
History
S 39B(2) amended by No 31 of 2018, s 3 and Sch 2 item 7, by substituting "ASIO Minister" for "Attorney-General", effective 11 May 2018. No 31 of 2018, s 3 and Sch 1 Pt 5 contain the following transitional rules:
Part 5 - Transitional rules
284 Transitional rules
(1)
A Minister administering an Act amended by this Schedule (the
amended Act
) may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the following:
(a)
the amendments or repeals of the amended Act made by this Schedule;
(b)
the effect of section 19 or 19A of the Acts Interpretation Act 1901, in relation to a provision of the amended Act, because of an Administrative Arrangements Order made during the period:
(i)
beginning on 20 December 2017; and
(ii)
ending on the day before this item commences;
(c)
the effect of a substituted reference order, made during the period mentioned in paragraph (b) of this subitem under section 19B of the Acts Interpretation Act 1901, in relation to a provision of the amended Act.
Note:
Subparagraph (b)(i) - 20 December 2017 is the day an Administrative Arrangements Order was made to provide for certain matters to be dealt with by a Department of Home Affairs.
(2)
To avoid doubt, the rules may not do the following:
(a)
create an offence or civil penalty;
(b)
provide powers of:
(i)
arrest or detention; or
(ii)
entry, search or seizure;
(c)
impose a tax;
(d)
set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in an Act;
(e)
directly amend the text of an Act.
(3)
This Schedule (other than subitem (2)) does not limit the rules that may be made for the purposes of subitem (1).
(4)
Rules made for the purposes of this item that are registered under the Legislation Act 2003 before the end of the period of 12 months starting on the commencement of this item:
(a)
may be expressed to take effect from a date before the rules are registered; and
(b)
apply despite subsection 12(2) (retrospective application of legislative instruments) of that Act.
S 39B(2) inserted by No 175 of 1995, s 3, Sch 1.
Protection of information etc.
39B(3)
A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections
(4),
(5) and
(7) and section
46, do all things necessary to ensure:
(a)
that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and
(b)
in respect of a document produced to the Tribunal - that the document is returned to the person by whom it was produced.
History
S 39B(3) inserted by No 175 of 1995, s 3, Sch 1.
39B(4)
Subsection
(3) does not apply in relation to disclosure to the Director-General of Security or his or her representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a).
History
S 39B(4) inserted by No 175 of 1995, s 3, Sch 1.
Disclosure of information etc.
39B(5)
If:
(a)
the ASIO Minister has certified in accordance with subsection
(2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph
(2)(a) or
(b); and
(b)
the presiding member presiding is satisfied that the interests of justice outweigh the reason stated by the ASIO Minister;
the presiding member may authorise the disclosure of the information, or of the contents of the document to, the applicant.
History
S 39B(5) amended by No 31 of 2018, s 3 and Sch 2 item 8, by substituting "ASIO Minister" for "Attorney-General" in para (a) and (b), effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 39B(5) amended by No 60 of 2015, s 3 and Sch 1 items 96 and 97, by substituting "presiding member" for "presidential member presiding" in para (b) and "presiding member may" for "presidential member may", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 39B(5) inserted by No 175 of 1995, s 3, Sch 1.
What presiding member must consider in deciding whether to authorise disclosure of information etc.
39B(6)
In considering whether information or the contents of a document should be disclosed as mentioned in subsection
(5):
(a)
the presiding member must take as the basis of his or her consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but
(b)
the presiding member must pay due regard to any reason stated by the ASIO Minister in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest.
History
S 39B(6) amended by No 31 of 2018, s 3 and Sch 2 item 8, by substituting "ASIO Minister" for "Attorney-General" in para (b), effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 39B(6) amended by No 60 of 2015, s 3 and Sch 1 item 99, by substituting "presiding member" for "presidential member" in para (a) and (b), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 39B(6) inserted by No 175 of 1995, s 3, Sch 1.
Disclosure of information etc. to staff of Tribunal
39B(7)
This section does not prevent the disclosure of information or of the contents of a documentto a member of the Tribunal's staff in the course of the performance of his or her duties as a member of the Tribunal's staff.
History
S 39B(7) inserted by No 175 of 1995, s 3, Sch 1.
Public interest
39B(8)
This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.
History
S 39B(8) inserted by No 175 of 1995, s 3, Sch 1.
Copy of document
39B(9)
If the ASIO Minister has given a certificate under subsection
(2) in respect of a document, this section applies in relation to a document that is a copy of the first-mentioned document as if the copy were the original document.
History
S 39B(9) amended by No 31 of 2018, s 3 and Sch 2 item 9, by substituting "ASIO Minister" for "Attorney-General", effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 39B(9) inserted by No 175 of 1995, s 3, Sch 1.
Certificate lodged under section 38A
39B(10)
For the purposes of this section, if the Director-General of Security, in accordance with subsection
38A(1),
(1A) or
(1B), has lodged with the Tribunal a certificate of the ASIO Minister given under subsection 38(2), 83A(4) or 83C(6) of the
Australian Security Intelligence Organisation Act 1979, the certificate is taken to be a certificate under subsection
(2) of this section certifying to the Tribunal that the disclosure of the information to which the certificate relates would be contrary to the public interest because it would prejudice security.
History
S 39B(10) amended by No 33 of 2023, s 3 and Sch 1 items 31-33, by inserting ", (1A) or (1B)", ", 83A(4) or 83C(6)" and "under subsection (2) of this section", effective 1 July 2023.
S 39B(10) amended by No 31 of 2018, s 3 and Sch 2 item 9, by substituting "ASIO Minister" for "Attorney-General", effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 39B(10) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[11].
Duty of Tribunal
39B(11)
It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.
History
S 39B(11) inserted by No 175 of 1995, s 3, Sch 1.
39B(12)
The ASIO Minister may, by signed writing, delegate the ASIO Minister's power under subsection
(2), to the extent it applies in relation to review of a security clearance decision or security clearance suitability assessment, to an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee.
History
S 39B(12) inserted by No 33 of 2023, s 3 and Sch 1 item 34, effective 1 July 2023.
39B(13)
In exercising a power under a delegation under subsection
(12), the delegate must comply with any written directions of the ASIO Minister.
History
S 39B(13) inserted by No 33 of 2023, s 3 and Sch 1 item 34, effective 1 July 2023.
SECTION 39C
REVIEW OF SECURITY CLEARANCE DECISIONS AND SECURITY CLEARANCE SUITABILITY ASSESSMENTS - CONSIDERATION AND DISCLOSURE OF CERTAIN DOCUMENTS AND INFORMATION
39C(1)
This section applies to a proceeding in the Security Division for a review of a security clearance decision or a security clearance suitability assessment in respect of the Commonwealth's highest level of security clearance.
Application of standard relating to highest security clearance
39C(2)
If the Director-General of Security presents to the Tribunal a certified copy of a standard (or part thereof) under subsection
39BA(4):
(a)
if the Director-General has presented one certified copy of a standard (or part thereof) - the Tribunal must apply the standard (or part thereof) in its review of the decision or suitability assessment; or
(b)
if the Director-General has presented more than one certified copy of a standard (or part thereof) - the Tribunal must, in its review of the decision or suitability assessment, apply the standard (or part thereof) certified by the Director-General as being a current standard.
Disclosure of documents or information
39C(3)
The Tribunal must, subject to this section and section
46, do all things necessary to ensure that a copy of any standard (or part thereof) presented to the Tribunal under subsection
39BA(4), or any information contained in it, is not disclosed to the applicant or any person other than:
(a)
a member of the Tribunal as constituted for the purposes of the proceeding; or
(b)
the Director-General of Security or the Director-General's representative.
39C(4)
Subsection
(5) applies if the Tribunal is provided with a document containing information (the
sensitive information
) certified in writing by the Director-General of Security as being information that, in the opinion of the Director General or a person authorised by the Director-General under subsection
(9):
(a)
would be contrary to the public interest:
(i)
because it would prejudice security, the defence of the Commonwealth or the conduct of the Commonwealth's international affairs; or
(ii)
because it would reveal information that has been disclosed to the Australian Security Intelligence Organisation in confidence; or
(iii)
for a reason that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the information should not be disclosed; or
(b)
could reveal the methodology underlying a psychological assessment of the applicant.
39C(5)
The Tribunal must, subject to this section and section
46, do all things necessary to ensure that the sensitive information provided to the Tribunal is not disclosed to the applicant or any person other than:
(a)
a member of the Tribunal as constituted for the purposes of the proceeding; or
(b)
the Director-General of Security or the Director-General's representative.
39C(6)
However, subsections
(3) and
(5) do not apply in relation to disclosure to the applicant or a person representing the applicant to the extent that the information:
(a)
has already been lawfully disclosed to the applicant; or
(b)
is disclosed to the applicant with the consent of the Director-General of Security.
39C(7)
This section does not prevent the disclosure of a copy of any standard (or part thereof) presented to the Tribunal under subsection
39BA(4), any information contained in it, or any sensitive information referred to in subsection
(4) of this section to a member of the Tribunal's staff in the course of the performance of the staff member's duties.
39C(8)
This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure in a proceeding of a copy of any standard (or part thereof) presented to the Tribunal under subsection
39BA(4), any information contained in it, or any sensitive information referred to in subsection
(4) of this section.
39C(9)
The Director-General of Security may, in writing, authorise a person for the purposes of subsection
(4) if the person is an ASIO employee, or an ASIO affiliate, who holds, or is acting in, a position in the Australian Security Intelligence Organisation that is equivalent to or higher than a position occupied by an SES employee.
History
S 39C inserted by No 33 of 2023, s 3 and Sch 1 item 35, effective 1 July 2023.
Division 5 - Procedural powers of Tribunal
History
Div 5 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 40
POWERS OF TRIBUNAL ETC.
40(1)
For the purpose of reviewing a decision, the Tribunal may:
(a)
take evidence on oath or affirmation;
(b)
proceed in the absence of a party who has had reasonable notice of the proceeding; and
(c)
adjourn the proceeding from time to time.
40(1A)
(Repealed by No 60 of 2015)
History
S 40(1A) repealed by No 60 of 2015, s 3 and Sch 1 item 100, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(1A) formerly read:
40(1A)
Summons.
Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:
(a)
to give evidence; or
(b)
to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or
(c)
to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.
S 40(1A) inserted by No 58 of 1977, s 24; substituted by No 31 of 1993, s 15; amended by No 175 of 1995, s 3, Sch 2.
40(1B)
(Repealed by No 60 of 2015)
History
S 40(1B) repealed by No 60 of 2015, s 3 and Sch 1 item 100, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(1B) formerly read:
40(1B)
A summons under subsection (1A) may require a person to appear at a directions hearing to produce books, documents or things instead of at the hearing before the Tribunal.
S 40(1B) inserted by No 31 of 1993, s 15.
40(1C)
(Repealed by No 60 of 2015)
History
S 40(1C) repealed by No 60 of 2015, s 3 and Sch 1 item 100, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(1C) formerly read:
40(1C)
A person (other than a presidential member, a senior member or an authorised member) who, under subsection (1A), may summon a person to appear before the Tribunal must not refuse a request to do so unless the refusal is authorised by a presidential member, a senior member or an authorised member.
S 40(1C) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 40(1C) inserted by No 31 of 1993.
40(1D)
(Repealed by No 60 of 2015)
History
S 40(1D) repealed by No 60 of 2015, s 3 and Sch 1 item 100, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(1D) formerly read:
40(1D)
A presidential member, a senior member or an authorised member may give a party to a proceeding leave to inspect a document produced under a summons.
S 40(1D) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 40(1D) inserted by No 31 of 1993.
40(1E)
(Repealed by No 60 of 2015)
History
S 40(1E) repealed by No 60 of 2015, s 3 and Sch 1 item 100, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(1E) formerly read:
40(1E)
A person named in a summons for production of a book, document or thing may produce the book, document or thing at the Registry where the summons was issued before the date specified in the summons and, unless the Tribunal otherwise directs, is not required to attend the hearing concerned unless the person is also required to give evidence at the hearing concerned.
S 40(1E) amended by No 38 of 2005. No 38 of 2005, Sch 1[138], provides:
Application of amendments - subsection 40(1E) of the
Administrative Appeals Tribunal Act 1975
The amendments made by items 136 and 137 apply to a summons issued after the commencement of this item.
For transitional provisions see note under s 2A.
S 40(1E) inserted by No 31 of 1993.
40(2)
Oath or affirmation.
The member who presides at the hearing of a proceeding before the Tribunal:
(a)
may require a person appearing before the Tribunal at that hearing to give evidence either to take an oath or to make an affirmation; and
(b)
may administer an oath or affirmation to a person so appearing before the Tribunal.
(c)
(Repealed by No 60 of 2015)
History
S 40(2) amended by No 60 of 2015, s 3 and Sch 1 item 101, by substituting para (b) for para (b) and (c), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (b) and (c) formerly read:
(b)
may administer an oath or affirmation to a person so appearing before the Tribunal; and
(c)
if a person participates by a means allowed under section 35A, may make such arrangements as appear to the member to be appropriate in the circumstances in relation to administering an oath or affirmation to the person.
S 40(2) substituted by No 58 of 1977, s 24; amended by No 31 of 1993, s 15.
Power to take evidence
40(3)
The power (the
evidence power
) of the Tribunal under paragraph (1)(a) to take evidence on oath or affirmation in a particular proceeding may be exercised on behalf of the Tribunal by:
(a)
the presiding member in relation to the review; or
(b)
another person (whether or not a member) authorised in writing by that member.
History
S 40(3) substituted by No 60 of 2015, s 3 and Sch 1 item 102, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(3) formerly read:
40(3)
The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers he or she will give to questions asked him or her will be true.
S 40(3) amended by No 175 of 1995, Sch 3.
40(4)
The evidence power may be exercised:
(a)
inside or outside Australia; and
(b)
subject to any limitations or requirements specified by the Tribunal.
History
S 40(4) substituted by No 60 of 2015, s 3 and Sch 1 item 102, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(4) formerly read:
40(4)
Representation.
A person summoned to appear before the Tribunal may request that he or she be represented by counsel or a solicitor and upon such request being made the Tribunal may allow such person to be represented.
S 40(4) amended by No 175 of 1995, Sch 3.
40(5)
If a person other than the presiding member has the evidence power:
(a)
the person has, for the purpose of taking the evidence, the powers of the Tribunal and the presiding member under subsections (1) and (2); and
(b)
this Act applies in relation to the person, for the purpose of taking the evidence in the exercise of those powers, as if the person were the Tribunal or the presiding member.
History
S 40(5) substituted by No 60 of 2015, s 3 and Sch 1 item 102, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(5) formerly read:
40(5)
Tribunal's power to take evidence.
The power of the Tribunal under paragraph (1)(a) to take evidence on oath or affirmation may be exercised on behalf of the Tribunal in relation to a particular proceeding before the Tribunal by the member who is to preside at the hearing of that proceeding or by another person (whether a member or not) authorized by the first-mentioned member and that power may be so exercised within or outside Australia but the Tribunal may direct that the power is to be exercised subject to limitations specified by the Tribunal.
40(6)
(Repealed by No 60 of 2015)
History
S 40(6) repealed by No 60 of 2015, s 3 and Sch 1 item 102, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 40(6) formerly read:
40(6)
Where a person other than the member who is to preside at the hearing of a proceeding is authorized to take evidence in relation to the proceeding in accordance with subsection (5):
(a)
the person has, for the purpose of taking that evidence, all the powers of the Tribunal under subsection (1) and all the powers under subsection (2) of the member who is to preside at the hearing of the proceeding; and
(b)
for the purpose of the exercise of those powers by that person, this Act has effect (except where the context otherwise requires) as if a reference to the Tribunal or to the member who is to preside at the hearing of a proceeding included a reference to that person.
40(7)
Incidental proceedings.
The application of this section extends to a directions hearing under this Act or an alternative dispute resolution process under Division 3 (an
incidental proceeding
) as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the directions hearing or the person conducting the alternative dispute resolution process, as the case may be.
History
S 40(7) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 40(7) inserted by No 31 of 1993.
SECTION 40A
POWER TO SUMMON PERSON TO GIVE EVIDENCE OR PRODUCE DOCUMENTS
40A(1)
For the purposes of a proceeding before the Tribunal, the President, an authorised member or an officer of the Tribunal may summon a person to do either or both of the following, on the day, and at the time and place, specified in the summons:
(a)
appear before the Tribunal to give evidence;
(b)
produce any document or other thing specified in the summons.
History
S 40A(1) amended by No 3 of 2022, s 3 and Sch 1 item 1, by repealing the note, effective 17 August 2022. The note formerly read:
Note:
This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
40A(2)
The President or an authorised member may refuse a request to summon a person.
40A(3)
A person may, before the day specified in the summons, comply with a summons to produce a document or thing by producing the document or thing at the Registry from which the summons was issued. If the person does so, the person is not required to appear before the Tribunal unless:
(a)
the summons or another summons requires the person to appear before the Tribunal; or
(b)
the Tribunal directs the person to appear before the Tribunal.
History
S 40A(3) amended by No 3 of 2022, s 3 and Sch 1 items 98 and 99, by substituting "appear before the Tribunal" for "attend the hearing of the proceeding" and substituting "appear before the Tribunal" for "attend the hearing" in para (b), applicable in relation to a summons issued under subsection 40A(1) on or after 18 February 2022.
History
S 40A inserted by No 60 of 2015, s 3 and Sch 1 item 103, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 40B
INSPECTION OF DOCUMENTS PRODUCED UNDER SUMMONS
40B(1)
Any of the following persons may give a party to a proceeding leave to inspect a document or other thing produced under a summons in relation to the proceeding:
(a)
the President;
(b)
an authorised member;
(c)
an authorised officer.
History
S 40B(1) amended by No 3 of 2022, s 3 and Sch 1 item 2, by repealing the note, effective 17 August 2022. The note formerly read:
Note:
This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
40B(2)
However, an authorised officer must not make a decision about giving leave, and must instead arrange for the President or an authorised member of the Tribunal to make the decision, if:
(a)
the officer considers that it is not appropriate for the officer to make the decision; or
(b)
a party to the proceeding applies to the officer to have the decision made by a member of the Tribunal.
40B(3)
If an authorised officer decided whether to give a party to a proceeding leave to inspect a document produced under a summons:
(a)
a party to the proceeding may apply to the Tribunal, within 7 days or an extended time allowed by the Tribunal, to reconsider the decision; and
(b)
the Tribunal may reconsider the decision on such an application or its own initiative; and
(c)
the Tribunal may make such order as it thinks fit in relation to the giving of leave to inspect the document.
History
S 40B inserted by No 60 of 2015, s 3 and Sch 1 item 103, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 41
OPERATION AND IMPLEMENTATION OF A DECISION THAT IS SUBJECT TO REVIEW
41(1)
Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
History
S 41(1) substituted by No 58 of 1977, s 25; No 143 of 1979, s 6.
41(2)
The Tribunal may, on request being made by a party to a proceeding before the Tribunal (in this section referred to as the
"relevant proceeding"
), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.
Note:
This section does not apply in relation to proceedings in the Social Services and Child Support Division, as a result of provisions in the enactments that authorise applications for reviews that will be heard in that Division.
History
S 41(2) amended by No 60 of 2015, s 3 and Sch 1 items 104 and 105, by omitting ", as prescribed," after "request being made" and inserting the note, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 41(2) amended by No 38 of 2005. No 38 of 2005, Sch 1[144], provides:
Transitional - subsections 41(2) and (3) of the
Administrative Appeals Tribunal Act 1975
144(1)
This item applies to an order if:
(a)
the order was made by a presidential member under subsection 41(2) or (3) of the Administrative Appeals Tribunal Act 1975; and
(b)
the order was in force immediately before the commencement of this item.
144(2)
The order has effect, after the commencement of this item, as if it had been made by the Tribunal under subsection 41(2) or (3), as the case may be, of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
S 41(2) substituted by No 58 of 1977; No 143 of 1979.
41(3)
Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made by a party to the relevant proceeding, make an order varying or revoking the first-mentioned order.
History
S 41(3) amended by No 60 of 2015, s 3 and Sch 1 item 106, by omitting ", as prescribed," after "request being made", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 41(3) amended by No 38 of 2005. For transitional provisions see note under s 2A and 41(2).
S 41(3) substituted by No 58 of 1977; No 143 of 1979.
41(4)
Subject to subsection (5), the Tribunal shall not-
(a)
make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter; or
(b)
make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless-
(i)
the person who made the decision to which the relevant proceeding relates;
(ii)
the person who requested the making of the order under subsection (2); and
(iii)
if the order under subsection (2) has previously been varied by an order or orders under subsection (3) - the person or persons who requested the making of the last-mentioned order or orders,
have been given a reasonable opportunity to make submissions to the Tribunal, as the case may be, in relation to the matter.
History
S 41(4) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 41(4) substituted by No 58 of 1977; No 143 of 1979.
41(5)
Subsection (4) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal or in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity but, where an order is so made without giving such an opportunity to the person who made the decision to which the relevant proceeding relates, the order does not come into operation until a notice setting out the terms of the order is given to that person.
History
S 41(5) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 41(5) substituted by No 143 of 1979.
41(6)
An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3))-
(a)
is subject to such conditions as are specified in the order; and
(b)
has effect until-
(i)
where a period for the operation of the order is specified in the order - the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or
(ii)
if no period is so specified - the decision of the Tribunal on the application for review comes into operation.
History
S 41(6) substituted by No 143 of 1979, s 6.
41(7)-(8)
(Repealed by No 38 of 2005)
History
S 41(7)-(8) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 42
RESOLVING DISAGREEMENTS
42(1)
Subject to subsection
(1A), if the Tribunal is constituted for the purposes of a proceeding by 3 members, a disagreement between the members is to be settled according to the opinion of the majority of the members.
History
S 42(1) amended by No 53 of 2023, s 3 and Sch 1 item 29, by substituting "Subject to subsection (1A), if" for "If", applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
42(1A)
If:
(a)
the Tribunal is constituted for the purposes of a proceeding by 3 presidential members in accordance with section
19F; and
(b)
the proceeding is not in relation to a review of a decision relating to a record of the Australian Security Intelligence Organisation; and
(c)
the members disagree about a question of law arising in the proceeding;
the disagreement is to be settled:
(d)
if only one presidential member is a Judge - according to the opinion of that member; or
(e)
if 2 presidential members are Judges - according to the opinion of the majority of the members.
History
S 42(1A) inserted by No 53 of 2023, s 3 and Sch 1 item 30, applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
42(2)
If the Tribunal is constituted for the purposes of a proceeding by 2 members, a disagreement between the members is to be settled according to the opinion of the presiding member.
History
S 42 substituted by No 60 of 2015, s 3 and Sch 1 item 107, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 42 formerly read:
SECTION 42 RESOLVING DISAGREEMENTS
42(1)
2 members.
If:
(a)
2 members constitute the Tribunal for the purposes of a particular proceeding; and
(b)
the members do not agree about any matter arising in the proceeding;
the view of the presiding member prevails.
42(2)
3 members.
If:
(a)
3 members constitute the Tribunal for the purposes of a particular proceeding; and
(b)
the members do not agree about any matter arising in the proceeding; and
(c)
the matter does not consist of a question of law;
then:
(d)
if the majority agree - the view of the majority prevails; or
(e)
otherwise - the view of the presiding member prevails.
42(3)
If:
(a)
3 members constitute the Tribunal for the purposes of a particular proceeding; and
(b)
the members do not agree about a question of law arising in the proceeding;
the view of the presiding member prevails.
42(4)
Question of law.
A reference in this section to a
question of law
includes a reference to the question of whether a particular question is one of law.
S 42 substituted by No 38 of 2005. No 38 of 2005, Sch 1[152], provides:
Application - section 42 of the
Administrative Appeals Tribunal Act 1975
The amendment made by item 151 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.
For transitional provisions see note under s 2A.
SECTION 42A
DISCONTINUANCE, DISMISSAL, REINSTATEMENT ETC. OF APPLICATION
42A(1)
Dismissal if parties consent.
Where all the parties to an application before the Tribunal for a review of a decisionconsent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
42A(1AAA)
For the purposes of subsection
(1), the consent of the agency party to a proceeding in the Social Services and Child Support Division is not required.
History
S 42A(1AAA) inserted by No 60 of 2015, s 3 and Sch 1 item 108, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
42A(1A)
Deemed dismissal - applicant discontinues or withdraws application.
A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
History
S 42A(1A) inserted by No 31 of 1993.
42A(1AA)
If a proceeding is in the Social Services and Child Support Division and is not a child support first review, the person may notify the Tribunal orally of the withdrawal or discontinuance. The person who receives the notification must make a written record of the day of receipt.
History
S 42A(1AA) inserted by No 60 of 2015, s 3 and Sch 1 item 109, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
42A(1B)
If notification is given in accordance with subsection
(1A) or
(1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
History
S 42A(1B) amended by No 60 of 2015, s 3 and Sch 1 item 110, by substituting "given in accordance with subsection (1A) or (1AA)" for "so given", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 42A(1B) inserted by No 31 of 1993.
42A(2)
Dismissal if party fails to appear.
If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may-
(a)
if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or
(b)
in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.
History
S 42A(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 42A(2) inserted by No 58 of 1977; amended by No 31 of 1993.
42A(3)
(Repealed by No 60 of 2015)
History
S 42A(3) repealed by No 60 of 2015, s 3 and Sch 1 item 111, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 42A(3) formerly read:
42A(3)
For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing or hearing of a proceeding if the person or the person's representative, as the case may be, participates in it by a means allowed under section 35A.
S 42A(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 42A(3) inserted by No 31 of 1993.
42A(3A)
(Repealed by No 60 of 2015)
History
S 42A(3A) repealed by No 60 of 2015, s 3 and Sch 1 item 111, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 42A(3A) formerly read:
42A(3A)
For the purposes of subsection (2), a person is taken to appear in person or by a representative at an alternative dispute resolution process if the person or the person's representative, as the case may be, participates in it by a means allowed under section 34G.
S 42A(3A) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Dismissal if decision is not reviewable
42A(4)
The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
History
S 42A(4) substituted by No 60 of 2015, s 3 and Sch 1 item 111, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 42A(4) formerly read:
42A(4)
Dismissal if decision not reviewable.
If:
(a)
a person makes an application to the Tribunal for a review of a decision; and
(b)
the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;
the Tribunal may dismiss the application without proceeding to review the decision.
S 42A(4) inserted by No 31 of 1993.
42A(4A)
For a proceeding in the Social Services and Child Support Division, an authorised officer may dismiss an application without the Tribunal proceeding to review the decision if the officer is satisfied that the decision is not reviewable by the Tribunal.
History
S 42A(4A) inserted by No 3 of 2022, s 3 and Sch 1 item 36, applicable in relation to an application for review made on or after 18 February 2022.
42A(5)
Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction.
If an applicant for a review of a decision fails within a reasonable time:
(a)
to proceed with the application; or
(b)
to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
History
S 42A(5) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 42A(5) inserted by No 31 of 1993.
42A(6)
(Repealed by No 60 of 2015)
History
S 42A(6) repealed by No 60 of 2015, s 3 and Sch 1 item 112, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 42A(6) formerly read:
42A(6)
Dismissed application taken to be concluded.
If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.
S 42A(6) inserted by No 31 of 1993.
42A(7)
Dismissal if party fails to appear - giving of appropriate notice.
Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear at the time and place of the directions hearing, alternative dispute resolution process or hearing, as the case may be.
History
S 42A(7) amended by No 60 of 2015, s 3 and Sch 1 item 113, by substituting "alternative dispute resolution process" for "conference, mediation", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 42A(7) inserted by No 31 of 1993.
Reinstatement of application
42A(8)
If the Tribunal is taken to have dismissed an application under subsection
(1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection
(11), apply to the Tribunal for reinstatement of the application.
History
S 42A(8) amended by No 3 of 2022, s 3 and Sch 1 item 37, by substituting "subsection (11)" for "subsection (8B)", applicable in relation to the notification of a dismissal, where the notification is given on or after 18 February 2022 (whether the dismissal was made, or taken to have been made, before, on or after 18 February 2022).
S 42A(8) substituted by No 132 of 2015, s 3 and Sch 1 item 4, effective 14 October 2015. S 42A(8) formerly read:
42A(8)
Reinstatement of application.
If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8A), apply to the Tribunal for reinstatement of the application.
S 42A(8) amended by No 60 of 2015, s 3 and Sch 1 item 114, by substituting "a party to the proceeding may, within the period referred to in subsection (8A)" for "the person who made the application may, within 28 days after receiving notification that the application has been dismissed", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 42A(8) inserted by No 31 of 1993.
42A(8A)
If the Tribunal dismisses an application under subsection
(2) (other than an application in respect of a proceeding in which an order has been made under subsection
41(2)), a party to the proceeding may, within the period referred to in subsection
(11), apply to the Tribunal for reinstatement of the application.
History
S 42A(8A) amended by No 3 of 2022, s 3 and Sch 1 item 37, by substituting "subsection (11)" for "subsection (8B)", applicable in relation to the notification of a dismissal, where the notification is given on or after 18 February 2022 (whether the dismissal was made, or taken to have been made, before, on or after 18 February 2022).
S 42A(8A) substituted by No 132 of 2015, s 3 and Sch 1 item 4, effective 14 October 2015. S 42A(8A) formerly read:
42A(8A)
For the purposes of subsection (8), the period is:
(a)
28 days after the person receives notification that the application has been dismissed; or
(b)
if the person requests an extension - such longer period as the Tribunal, in special circumstances, allows.
S 42A(8A) inserted by No 60 of 2015, s 3 and Sch 1 item 115, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
42A(8B)
(Repealed by No 3 of 2022)
History
S 42A(8B) repealed by No 3 of 2022, s 3 and Sch 1 item 38, applicable in relation to the notification of a dismissal, where the notification is given on or after 18 February 2022 (whether the dismissal was made, or taken to have been made, before, on or after 18 February 2022). S 42A(8B) formerly read:
42A(8B)
For the purposes of subsections (8) and (8A), the period is:
(a)
28 days after the party receives notification that the application has been dismissed; or
(b)
if the party requests an extension - such longer period as the Tribunal, in special circumstances, allows.
S 42A(8B) inserted by No 132 of 2015, s 3 and Sch 1 item 4, effective 14 October 2015.
42A(9)
If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
History
S 42A(9) inserted by No 31 of 1993.
42A(10)
If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding made within the period referred to in subsection
(11) or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
History
S 42A(10) amended by No 3 of 2022, s 3 and Sch 1 item 39, by inserting "made within the period referred to in subsection (11)", applicable in relation to the notification of a dismissal, where the notification is given on or after 18 February 2022 (whether the dismissal was made, or taken to have been made, before, on or after 18 February 2022).
S 42A(10) inserted by No 31 of 1993.
42A(11)
For the purposes of subsections
(8),
(8A) and
(10), the period is:
(a)
28 days after the party receives notification that the application has been dismissed, unless paragraph
(b) applies; or
(b)
if the party requests an extension - such longer period as the Tribunal, in special circumstances, allows.
History
S 42A(11) inserted by No 3 of 2022, s 3 and Sch 1 item 40, applicable in relation to the notification of a dismissal, where the notification is given on or after 18 February 2022 (whether the dismissal was made, or taken to have been made, before, on or after 18 February 2022).
SECTION 42B
POWER OF TRIBUNAL IF A PROCEEDING IS FRIVOLOUS, VEXATIOUS ETC.
42B(1)
The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)
is frivolous, vexatious, misconceived or lacking in substance; or
(b)
has no reasonable prospect of success; or
(c)
is otherwise an abuse of the process of the Tribunal.
42B(2)
If the Tribunal dismisses an application under subsection (1), it may, on application by a party to the proceeding, give a written direction that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
42B(3)
The direction has effect despite any other provision of this Act or any other Act.
History
S 42B substituted by No 60 of 2015, s 3 and Sch 1 item 116, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 42B formerly read:
SECTION 42B POWER OF TRIBUNAL WHERE A PROCEEDING IS FRIVOLOUS OR VEXATIOUS
42B(1)
Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)
dismiss the application; and
(b)
if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.
42B(2)
A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.
42B(3)
The Tribunal may discharge or vary such a direction.
S 42B inserted by No 31 of 1993, s 17.
SECTION 42C
POWER OF TRIBUNAL IF PARTIES REACH AGREEMENT
42C(1)
If, at any stage of a proceeding for a review of a decision:
(a)
agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division
3); and
(b)
the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c)
the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
History
S 42C(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 42C(1) inserted by No 31 of 1993.
42C(2)
If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.
History
S 42C(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 42C(2) inserted by No 31 of 1993.
42C(3)
If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates.
Limitation for administrative assessments of child support
42C(4)
The Tribunal must not act in accordance with subsection (2) or (3) to give effect to an agreement in relation to a departure from administrative assessment of child support in accordance with Part 6A of the
Child Support (Assessment) Act 1989, unless it is satisfied that it is just and equitable and otherwise proper to do so, having regard to the matters set out in subsections 117(4) and (5) of that Act.
History
S 42C(4) inserted by No 60 of 2015, s 3 and Sch 1 item 117, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Variation or revocation of decisions other than on child support first reviews
42C(5)
The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if:
(a)
the parties, or their representatives, reach agreement on the variation or revocation; and
(b)
the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c)
the variation or revocation appears appropriate to the Tribunal; and
(d)
in the case of a variation - the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied.
History
S 42C(5) inserted by No 60 of 2015, s 3 and Sch 1 item 117, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
42C(6)
Subsection (5) does not apply to a decision made on child support first review.
History
S 42C(6) inserted by No 60 of 2015, s 3 and Sch 1 item 117, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 42C(3) inserted by No 31 of 1993, s 17.
SECTION 42D
POWER TO REMIT MATTERS TO DECISION-MAKER FOR FURTHER CONSIDERATION
42D(1)
At any stage of a proceeding for review of a decision other than a proceeding in the Social Services and Child Support Division, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.
History
S 42D(1) amended by No 60 of 2015, s 3 and Sch 1 item 118, by inserting "other than a proceeding in the Social Services and Child Support Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 42D(1) inserted by No 175 of 1995, s 3, Sch 2.
History
S 42D(1) amended by No 60 of 2015. For transitional and saving provisions, see note under the title of the Act.
S 42D(1) inserted by No 175 of 1995, s 3, Sch 2.
42D(2)
Powers of person to whom a decision is remitted.
If a decision is so remitted to a person, the person may reconsider the decision and may:
(a)
affirm the decision; or
(b)
vary the decision; or
(c)
set aside the decision and make a new decision in substitution for the decision set aside.
Note:
For time limits, see subsection (5).
History
S 42D(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 42D(2) inserted by No 175 of 1995.
42D(3)
If the person varies the decision:
(a)
the application is taken to be an application for review of the decision as varied; and
(b)
the person who made the application may either:
(i)
proceed with the application for review of the decision as varied; or
(ii)
withdraw the application.
History
S 42D(3) inserted by No 175 of 1995, s 3, Sch 2.
42D(4)
If the person sets the decision aside and makes a new decision in substitution for the decision set aside:
(a)
the application is taken to be an application for review of the new decision; and
(b)
the person who made the application may either:
(i)
proceed with the application for review of the new decision; or
(ii)
withdraw the application.
History
S 42D(4) inserted by No 175 of 1995, s 3, Sch 2.
42D(5)
Time limits.
The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:
(a)
if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision - that period;
(b)
in any other case - the period of 28 days beginning on the day on which the decision was remitted to the person.
History
S 42D(5) inserted by No 38 of 2005. No 38 of 2005, Sch 1[161], provides:
Application of amendment - subsections 42D(5), (6), (7) and (8) of the
Administrative Appeals Tribunal Act 1975
Subsections 42D(5), (6), (7) and (8) of the Administrative Appeals Tribunal Act 1975 apply in relation to a decision remitted after the commencement of this item.
For transitional provisions see note under s 2A.
42D(6)
The Tribunal may, on the application of the person, extend the period applicable under subsection (5).
History
S 42D(6) inserted by No 38 of 2005. For application and transitional provisions see note under s 42D(5) and 2A.
42D(7)
If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.
History
S 42D(7) inserted by No 38 of 2005. For application and transitional provisions see note under s 42D(5) and 2A.
42D(8)
If the person affirms the decision, the proceeding resumes.
History
S 42D(8) inserted by No 38 of 2005. For application and transitional provisions see note under s 42D(5) and 2A.
Division 6 - Tribunal's decision on review
History
Div 6 heading inserted by No 38 of 2005, s 3, Sch 1[162], effective 16 May 2005.
Provisions relevant to Act No 38 of 2005 (Sch 1[201] and [202]) are reproduced after s 2A of this Act.
SECTION 43
TRIBUNAL'S DECISION ON REVIEW
43(1A)
This section has effect subject to sections 43AAA and 43AAB and subsections 65(3) and 83F(7) of the
Australian Security Intelligence Organisation Act 1979.
History
S 43(1A) amended by No 33 of 2023, s 3 and Sch 1 item 36, by substituting "sections 43AAA and 43AAB and subsections 65(3) and 83F(7)" for "section 43AAA and to subsection 65(3)", effective 1 July 2023.
S 43(1A) inserted by No 175 of 1995; amended by No 161 of 1999.
43(1)
Tribunal's decision on review.
For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)
affirming the decision under review;
(b)
varying the decision under review; or
(c)
setting aside the decision under review and:
(i)
making a decision in substitution for the decision so set aside; or
(ii)
remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
43(1AA)
However, if the decision being reviewed is a security clearance decision, the only decisions that the Tribunal may make under subsection
(1) are the following:
(a)
to affirm the decision under review;
(b)
to set aside the decision under review and remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
History
S 43(1AA) inserted by No 33 of 2023, s 3 and Sch 1 item 37, effective 1 July 2023.
43(2)
Tribunal must give reasons for its decision.
Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.
History
S 43(2) substituted by No 58 of 1977; No 26 of 1982; amended by No 120 of 1988.
43(2A)
Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.
History
S 43(2A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 43(2A) inserted by No 26 of 1982.
43(2B)
Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
History
S 43(2B) inserted by No 26 of 1982.
43(3)
Tribunal must give copies of its decision to parties.
The Tribunal shall cause a copy of its decision to be given to each party to the proceeding.
History
S 43(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
43(4)
Evidence of Tribunal's decision or order.
Without prejudice to any other method available by law for the proof of decisions or orders of the Tribunal, a document purporting to be a copy of such a decision or order, and to be certified by the Registrar to be a true copy of the decision or order, is, in any proceeding, prima facie evidence of the decision or order.
History
S 43(4) amended by No 60 of 2015, s 3 and Sch 1 item 120, by omitting ", a District Registrar or a Deputy Registrar" after "by the Registrar", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 43(4) amended by No 175 of 1995.
43(5)
Subsections
(3) and
(4) apply in relation to reasons given in writing by the Tribunal for its decision as they apply in relation to the decision.
History
S 43(5) amended by No 26 of 1982.
Tribunal must notify parties of further review rights
43(5AA)
When the Tribunal gives a party to a proceeding a copy of its decision, the Tribunal must also give the party a written notice that includes a statement setting out the following, as applicable:
(a)
the party's right to apply for second review of the decision;
(b)
the party's right to appeal to a court on a question of law.
History
S 43(5AA) inserted by No 60 of 2015, s 3 and Sch 1 item 119, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
43(5AB)
Subsection
(5AA) does not apply in relation to the agency party to a proceeding in the Social Services and Child Support Division.
History
S 43(5AB) inserted by No 60 of 2015, s 3 and Sch 1 item 119, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
43(5AC)
A failure to comply with subsection
(5AA) in relation to a decision of the Tribunal does not affect the validity of the decision.
History
S 43(5AC) inserted by No 60 of 2015, s 3 and Sch 1 item 119, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
43(5A)
When Tribunal's decision comes into operation.
Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.
History
S 43(5A) inserted by No 143 of 1979.
43(5B)
The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.
History
S 43(5B) inserted by No 143 of 1979.
43(5C)
Despite subsections
(5A) and
(5B), if:
(a)
the Tribunal has made an order under subsection
41(2) staying the operation or implementation of the decision under review; and
(b)
the order was in force immediately before the decision given by the Tribunal on the review;
then, unless the Tribunal, the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) otherwise orders, the operation or implementation of the Tribunal's decision is stayed until:
(c)
subject to paragraph
(d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection
44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or
(d)
if such an appeal is brought - the appeal is determined.
History
S 43(5C) amended by No 13 of 2021, s 3 and Sch 2 item 2, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 43(5C) inserted by No 175 of 1995; amended by No 194 of 1999.
43(6)
Tribunal's decision taken to be decision of decision-maker.
A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.
History
S 43(6) amended by No 157 of 1976; No 143 of 1979.
43(7)
(Repealed by No 43 of 1996)
History
S 43 amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" wherever occurring, effective 12 April 2013.
Division 7 - Miscellaneous
History
Div 7 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 43AAA
FINDINGS OF TRIBUNAL IN SECURITY DIVISION REVIEW OF SECURITY ASSESSMENT
43AAA(1)
Scope.
This section applies to a review in the Security Division of a security assessment.
History
S 43AAA(1) amended by No 33 of 2023, s 3 and Sch 1 item 38, by inserting "of a security assessment", effective 1 July 2023.
S 43AAA(1) amended by No 60 of 2015, s 3 and Sch 1 item 122, by substituting "review in the Security Division" for "review conducted by the Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 43AAA(1) inserted by No 175 of 1995, s 3, Sch 1.
43AAA(2)
Findings.
Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment.
History
S 43AAA(2) inserted by No 175 of 1995, s 3, Sch 1.
43AAA(3)
The Tribunal must not make findings in relation to an assessment that would, under section 61 of the
Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal's opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.
History
S 43AAA(3) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[13].
43AAA(4)
Copies of findings to be given to parties etc.
Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director-General of Security, the Commonwealth agency, State or authority of a State to which the assessment was given and the ASIO Minister.
History
S 43AAA(4) amended by No 31 of 2018, s 3 and Sch 2 item 10, by substituting "ASIO Minister" for "Attorney-General", effective 11 May 2018. For transitional rules, see note under s 39B(2).
S 43AAA(4) amended by No 82 of 2016, s 3 and Sch 12 item 14, by inserting ", State or authority of a State", effective 30 November 2016.
S 43AAA(4) inserted by No 175 of 1995, s 3, Sch 1.
43AAA(5)
The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency, State or authority of a State to which the assessment was given.
History
S 43AAA(5) amended by No 82 of 2016, s 3 and Sch 12 item 14, by inserting ", State or authority of a State", effective 30 November 2016.
S 43AAA(5) inserted by No 175 of 1995, s 3, Sch 1.
43AAA(6)
Applicant may publish findings.
Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that he or she thinks fit, the findings of the Tribunal so far as they have been given to him or her.
History
S 43AAA(6) inserted by No 175 of 1995, s 3, Sch 1.
43AAA(7)
Tribunal may attach comments to findings.
The Tribunal may attach to a copy of findings to be given to the Director-General under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal's attention as a result of a review.
History
S 43AAA(7) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[13].
43AAA(8)
The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection
(7).
History
S 43AAA(8) inserted by No 175 of 1995, s 3, Sch 1.
SECTION 43AAB
FINDINGS OF TRIBUNAL IN SECURITY DIVISION REVIEW OF SECURITY CLEARANCE DECISION OR SECURITY CLEARANCE SUITABILITY ASSESSMENT
Scope
43AAB(1)
This section applies to a review in the Security Division of a security clearance decision or security clearance suitability assessment.
Findings
43AAB(2)
Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security clearance decision or security clearance suitability assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for any recommendation, opinion, advice or information contained in the decision or suitability assessment.
43AAB(3)
The Tribunal must not make findings in relation to a security clearance decision or security clearance suitability assessment that would, under subsection 83D(1) of the
Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under section 82G or 83C of that Act, taken to be part of the decision or suitability assessment unless those findings state that, in the Tribunal's opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.
Copies of findings to be given to parties etc.
43AAB(4)
Subject to subsection
(5), the Tribunal must cause copies of its findings to be given to the applicant, the Director-General of Security, the ASIO Minister and the following body (the
relevant body
):
(a)
for findings in relation to a security clearance decision - the sponsoring agency for the security clearance in relation to which the security clearance decision was made;
(b)
for findings in relation to a security clearance suitability assessment - the security vetting agency to which the suitability assessment was given.
43AAB(5)
The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the relevant body.
Applicant may publish findings
43AAB(6)
Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that the applicant thinks fit, the findings of the Tribunal so far as they have been given to the applicant.
Tribunal may attach comments to findings
43AAB(7)
The Tribunal may attach to a copy of findings to be given to the Director-General under this section any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal's attention as a result of a review.
43AAB(8)
The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection
(7).
History
S 43AAB inserted by No 33 of 2023, s 3 and Sch 1 item 39, effective 1 July 2023.
SECTION 43AA
CORRECTION OF ERRORS IN DECISIONS OR STATEMENT OF REASONS
Correction of errors
43AA(1)
If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.
History
S 43AA(1) inserted by No 175 of 1995, s 3, Sch 2.
43AA(2)
If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.
History
S 43AA(2) inserted by No 175 of 1995, s 3, Sch 2.
Examples of obvious errors
43AA(3)
Examples of obvious errors in the text of a decision or statement of reasons are where:
(a)
there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or
(b)
there is an inconsistency between the decision and the statement of reasons.
History
S 43AA(3) inserted by No 175 of 1995, s 3, Sch 2.
Exercise of powers
43AA(4)
The powers of the Tribunal under this section may be exercised by:
(a)
either:
(i)
the member who constituted the Tribunal for the purposes of the proceeding to which the decision relates; or
(ii)
if the Tribunal was constituted by more than one member for the purposes of the proceeding to which the decision relates - the member who presided at that proceeding; or
(b)
if that member has stopped being a member or is for any reason unavailable - the President or an authorised member.
History
S 43AA(4) substituted by No 3 of 2022, s 3 and Sch 1 item 43, applicable in relation to the exercise of the powers of the Tribunal on or after 18 February 2022. S 43 formerly read:
43AA(4)
Exercise of powers.
The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceeding to which the decision relates.
S 43AA(4) inserted by No 175 of 1995, s 3, Sch 2.
43A
(Repealed) SECTION 43A RETURN OF DOCUMENTS ETC. AT COMPLETION OF PROCEEDING
(Repealed by No 60 of 2015)
History
S 43A repealed by No 60 of 2015, s 3 and Sch 1 item 123, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 43A formerly read:
SECTION 43A RETURN OF DOCUMENTS ETC. AT COMPLETION OF PROCEEDING
43A(1)
Where-
(a)
a proceeding before the Tribunal has concluded; and
(b)
the time within which an appeal from the decision of the Tribunal in the proceeding may be instituted, or, if that time has been extended, the period of the extension, has expired but no such appeal has been instituted,
the President may cause a document or any other object given to the Tribunal for the purposes of the proceeding to be returned to the person by whom it was given.
History
S 43A(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 43A(1) inserted by No 58 of 1977; amended by No 26 of 1982.
43A(2)
Where the Federal Court of Australia or the Federal Circuit Court of Australia causes a document sent to the court in accordance with paragraph 46(1)(a) or (c) in connexion with a proceeding before the court to be returned to the Tribunal, the President may cause the document to be returned to the person by whom it was given to the Tribunal.
History
S 43A(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 43A(2) inserted by No 58 of 1977, s 28; amended by No 194 of 1999.
S 43A amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" wherever occurring, effective 12 April 2013.
PART IVA - APPEALS AND REFERENCES OF QUESTIONS OF LAW TO THE FEDERAL COURT OF AUSTRALIA
SECTION 43B
PART APPLIES WHETHER TRIBUNAL'S POWER CONFERRED BY AN ENACTMENT OR BY A LAW OF A STATE
43B(1)
This Part applies in relation to a proceeding that was before the Tribunal before the commencement of this section, or that is before the Tribunal after that commencement, under power conferred on it by or under:
(a)
an enactment; or
(b)
a law of a State.
Note:
The enactment may be regulations made for the purposes of subsection 25(2) (review of decisions made in the exercise of powers conferred by a Norfolk Island enactment).
History
S 43B(1) amended by No 139 of 2010, s 3 and Sch 1 item 146, by inserting the note at the end, effective 1 January 2011.
S 43B(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 43B(1) inserted by Act No 57 of 2000.
43B(2)
This Part has effect in relation to a proceeding before the Tribunal under power conferred on it by a law of a State as if a reference in this Part to a provision of this Act that is not in this Part were a reference to that provision as applying as a law of the State.
History
S 43B(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 43B(2) inserted by Act No 57 of 2000.
SECTION 43C
43C
PART DOES NOT APPLY IN RELATION TO CERTAIN MIGRATION DECISIONS
This Part does not apply to an application in relation to, or a proceeding for the review of, any of the following within the meaning of the
Migration Act 1958:
(a)
a privative clause decision;
(b)
a purported privative clause decision;
(c)
an AAT Act migration decision.
History
S 43C inserted by No 60 of 2015, s 3 and Sch 1 item 124, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 44
APPEALS TO FEDERAL COURT OF AUSTRALIA FROM DECISIONS OF THE TRIBUNAL
44(1)
Appeal on question of law.
A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.
Note 1:
This Part does not apply to certain migration proceedings (see section 43C).
Note 2:
A party to a child support first review may in some instances appeal instead to the Federal Circuit and Family Court of Australia (Division 2) (see section 44AAA).
History
S 44(1) amended by No 13 of 2021, s 3 and Sch 2 item 3, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court" in note 2, effective 1 September 2021.
S 44(1) amended by No 60 of 2015, s 3 and Sch 1 item 125, by inserting note 1 and note 2, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 44(1) amended by No 157 of 1976; No 58 of 1977.
44(1A)
Subsection
(1) does not apply in relation to a proceeding in the Social Services and Child Support Division, other than a proceeding:
(a)
that is a child support first review; or
(b)
for review of an AAT reviewable employer decision within the meaning of the
Paid Parental Leave Act 2010.
History
S 44(1A) inserted by No 60 of 2015, s 3 and Sch 1 item 126, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
44(2)
Appeal about standing.
Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal.
Note:
This Part does not apply to applications in relation to certain migration decisions (see section 43C).
History
S 44(2) amended by No 60 of 2015, s 3 and Sch 1 item 127, by inserting a note, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 44(2) amended by No 157 of 1976; No 58 of 1977.
44(2A)
When and how appeal instituted.
An appeal by a person under subsection (1) or (2) shall be instituted:
(a)
not later than the twenty-eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and
(b)
in such manner as is prescribed by rules of court made under the
Federal Court of Australia Act 1976.
History
S 44(2A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 44(2A) inserted by No 58 of 1977.
44(2B)
In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph
(2A)(a) include, but are not limited to, the following grounds:
(a)
if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision - the written statement contains reasons that were not mentioned in the oral statement;
(b)
the text of the decision or a statement of reasons for the decision has been altered under section
43AA.
History
S 44(2B) inserted by No 175 of 1995.
44(3)
Jurisdiction.
The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction:
(a)
may be exercised by that Court constituted as a Full Court;
(b)
shall be so exercised if:
(i)
the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Deputy President who is not a Judge; and
(ii)
after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and
(c)
shall be so exercised if the Tribunal's decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge.
History
S 44(3) amended by No 60 of 2015, s 3 and Sch 1 item 128, by substituting "a Deputy President who is not a Judge" for "a presidential member" in para (b)(i), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 44(3) amended by No 157 of 1976; No 58 of 1977; No 120 of 1988; No 60 of 1996.
44(4)
Powers of Federal Court.
The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.
History
S 44(4) amended by No 157 of 1976.
44(5)
Without limiting by implication the generality of subsection
(4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
History
S 44(5) amended by No 157 of 1976.
44(6)
Constitution of Tribunal if Federal Court remits case etc.
If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal:
(a)
the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and
(b)
whether or not the Tribunal is reconstituted for the hearing - the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.
History
S 44(6) amended by No 38 of 2011. For transitional provisions see note under s 2A.
S 44(6) inserted by No 31 of 1993.
44(7)
Federal Court may make findings of fact.
If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:
(a)
the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and
(b)
it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:
(i)
the extent (if any) to which it is necessary for facts to be found; and
(ii)
the means by which those facts might be established; and
(iii)
the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and
(iv)
the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and
(v)
the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and
(vi)
whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and
(vii)
such other matters (if any) as the Court considers relevant.
History
S 44(7) inserted by No 38 of 2005. No 38 of 2005, Sch 1[175], provides:
Application of amendments - sections 44 and 44AA of the
Administrative Appeals Tribunal Act 1975
The amendments of sections 44 and 44AA of the Administrative Appeals Tribunal Act 1975 made by items 173 and 174 apply in relation to an appeal instituted after the commencement of this item.
For transitional provisions see note under s 2A.
44(8)
For the purposes of making findings of fact under subsection
(7), the Federal Court of Australia may:
(a)
have regard to the evidence given in the proceeding before the Tribunal; and
(b)
receive further evidence.
History
S 44(8) inserted by No 38 of 2005. For application and transitional provisions see note under s 44(7) and 2A.
44(9)
Subsection
(7) does not limit the Federal Court of Australia's power under subsection
(5) to make an order remitting the case to be heard and decided again by the Tribunal.
History
S 44(9) inserted by No 38 of 2005. For application and transitional provisions see note under s 44(7) and 2A.
44(10)
The jurisdiction of the Federal Court of Australia under subsection
(3) includes jurisdiction to make findings of fact under subsection
(7).
History
S 44(10) inserted by No 38 of 2005. For application and transitional provisions see note under s 44(7) and 2A.
SECTION 44AAA
APPEALS TO FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) FROM DECISIONS OF THE TRIBUNAL IN RELATION TO CHILD SUPPORT FIRST REVIEWS
44AAA(1)
If the Tribunal as constituted for the purposes of a proceeding that is a child support first review does not consist of or include a presidential member, a party to the proceeding may appeal to the Federal Circuit and Family Court of Australia (Division 2), on a question of law, from any decision of the Tribunal in that proceeding.
History
S 44AAA(1) amended by No 13 of 2021, s 3 and Sch 2 item 5, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
44AAA(2)
The following provisions of this Part apply in relation to any such appeal as if the appeal were an appeal under subsection
44(1) and a reference in those provisions to the Federal Court of Australia were a reference to the Federal Circuit and Family Court of Australia (Division 2):
(a)
subsections
44(2A) to
(10) (other than paragraphs
44(3)(a) to
(c));
(b)
section
44A (other than subsection (2A));
(c)
paragraphs
46(1)(a) and
(b).
History
S 44AAA(2) amended by No 13 of 2021, s 3 and Sch 2 item 5, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
44AAA(3)
Paragraph
44(2A)(b) applies in relation to any such appeal as if the reference in that paragraph to rules of court made under the
Federal Court of Australia Act 1976 were a reference to rules of court made under Chapter 4 of the
Federal Circuit and Family Court of Australia Act 2021.
History
S 44AAA(3) amended by No 13 of 2021, s 3 and Sch 2 item 6, by substituting "Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021" for "the Federal Circuit Court of Australia Act 1999", effective 1 September 2021.
44AAA(4)
Subsection
(1) does not affect the operation of subsection
44(1) in relation to a proceeding that is a child support first review.
History
S 44AAA inserted by No 60 of 2015, s 3 and Sch 1 item 129, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 44AA
TRANSFER OF APPEALS FROM FEDERAL COURT TO FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Transfer of appeals
44AA(1)
If an appeal under subsection
44(1) or
(2) is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Circuit and Family Court of Australia (Division 2).
History
S 44AA(1) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(1) inserted by No 194 of 1999, s 2, Sch 3[7].
44AA(2)
However, the Federal Court of Australia must not transfer an appeal to the Federal Circuit and Family Court of Australia (Division 2) if the appeal:
(a)
relates to a decision given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; or
(b)
(Repealed by No 157 of 2001)
(c)
is of a kind specified in the regulations.
History
S 44AA(2) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(2) inserted by No 194 of 1999.
Act No 157 of 2001, Sch 2 item 6, contained the following provision:
SECTION 6(1)
Application of amendments
6(1)
The amendment of the
Administrative Appeals Tribunal Act 1975 made by item 1 applies in relation to an appeal instituted in the Federal Court of Australia on or after the commencement of this item.
44AA(3)
The Federal Court of Australia may transfer an appeal under subsection
(1):
(a)
on the application of a party to the appeal; or
(b)
on its own initiative.
History
S 44AA(3) inserted by No 194 of 1999, s 2, Sch 3[7].
Federal Court Rules
44AA(4)
Rules of Court made under the
Federal Court of Australia Act 1976 may make provision in relation to transfers of appeals to the Federal Circuit and Family Court of Australia (Division 2) under subsection
(1).
History
S 44AA(4) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(4) inserted by No 194 of 1999, s 2, Sch 3[7].
44AA(5)
In particular, Rules of Court made under the
Federal Court of Australia Act 1976 may set out factors that are to be taken into account by the Federal Court of Australia in deciding whether to transfer appeals to the Federal Circuit and Family Court of Australia (Division 2) under subsection
(1).
History
S 44AA(5) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(5) inserted by No 194 of 1999, s 2, Sch 3[7].
44AA(6)
Before Rules of Court are made for the purposes of subsection
(4) or
(5), the Federal Court of Australia must consult the Federal Circuit and Family Court of Australia (Division 2).
History
S 44AA(6) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(6) inserted by No 194 of 1999, s 2, Sch 3[7].
Matters to which the Federal Court must have regard in transferring appeal
44AA(7)
In deciding whether to transfer an appeal to the Federal Circuit and Family Court of Australia (Division 2) under subsection
(1), the Federal Court of Australia must have regard to:
(a)
any Rules of Court made for the purposes of subsection
(5); and
(b)
whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 2); and
(c)
whether the resources of the Federal Circuit and Family Court of Australia (Division 2) are sufficient to hear and determine the appeal; and
(d)
the interests of the administration of justice.
History
S 44AA(7) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia" (wherever occurring), effective 1 September 2021.
S 44AA(7) inserted by No 194 of 1999, s 2, Sch 3[7].
Jurisdiction
44AA(8)
The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine appeals transferred to it under subsection
(1).
History
S 44AA(8) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(8) inserted by No 194 of 1999, s 2, Sch 3[7].
Powers etc
44AA(9)
Subsections
44(4),
(5) and
(6) apply in relation to the hearing and determination of an appeal transferred to the Federal Circuit and Family Court of Australia (Division 2) under subsection
(1) of this section in a corresponding way to the way in which they apply to the hearing and determination of an appeal by the Federal Court of Australia.
History
S 44AA(9) amended by No 13 of 2021, s 3 and Sch 2 item 8, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(9) inserted by No 194 of 1999, s 2, Sch 3[7].
No appeal from decision of Federal Court
44AA(10)
An appeal does not lie from a decision of the Federal Court of Australia in relation to the transfer of an appeal under subsection
(1).
History
S 44AA(10) inserted by No 194 of 1999, s 2, Sch 3[7].
Federal Circuit and Family Court of Australia (Division 2) may make findings of fact
44AA(11)
If an appeal under subsection
44(1) is transferred to the Federal Circuit and Family Court of Australia (Division 2) under subsection
(1) of this section, subsections
44(7),
(8) and
(9) apply in relation to the making of findings of fact by the Federal Circuit and Family Court of Australia (Division 2) in a corresponding way to the way in which they apply to the making of findings of fact by the Federal Court of Australia.
History
S 44AA(11) amended by No 13 of 2021, s 3 and Sch 2 item 10, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(11) inserted by No 38 of 2005. For application and transitional provisions see note under s 44(7) and 2A.
44AA(12)
The jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) under subsection (8) of this section includes jurisdiction to make findings of fact under subsection
44(7) (as applied by subsection
(11) of this section).
History
S 44AA(12) amended by No 13 of 2021, s 3 and Sch 2 item 10, by substituting "Federal Circuit and FamilyCourt of Australia (Division 2)" for "Federal Circuit Court of Australia", effective 1 September 2021.
S 44AA(12) inserted by No 38 of 2005. For application and transitional provisions see note under s 44(7) and 2A.
History
S 44AA amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" wherever occurring, effective 12 April 2013.
SECTION 44A
OPERATION AND IMPLEMENTATION OF A DECISION THAT IS SUBJECT TO APPEAL
44A(1)
Appeal does not affect operation of Tribunal's decision.
Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.
History
S 44A(1) inserted by No 143 of 1979, s 9.
44A(2)
Stay orders.
Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:
(a)
the decision of the Tribunal or a part of that decision; and
(b)
the decision to which the proceeding before the Tribunal related or a part of that decision,
as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.
History
S 44A(2) inserted by No 143 of 1979, s 9.
44A(2A)
If an appeal from a decision of the Tribunal is transferred from the Federal Court of Australia to the Federal Circuit and Family Court of Australia (Division 2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:
(a)
the decision of the Tribunal or a part of that decision;
(b)
the decision to which the proceeding before the Tribunal related or a part of that decision;
as the Federal Circuit and Family Court of Australia (Division 2) or Judge of the Court considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.
History
S 44A(2A) amended by No 13 of 2021, s 3 and Sch 2 items 11 and 12, by substituting "Federal Circuit and Family Court of Australia (Division 2), the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court" for "Federal Circuit Court of Australia, the Federal Circuit Court of Australia or a Judge of the Federal Circuit Court of Australia" and "Federal Circuit and Family Court of Australia (Division 2) or Judge of the Court" for "Federal Circuit Court of Australia or Judge of the Federal Circuit Court of Australia", effective 1 September 2021.
S 44A(2A) amended by No 13 of 2013, s 3 and Sch 1 item 5, by substituting "Judge of the Federal Circuit Court of Australia" for "Federal Magistrate" wherever occurring, effective 12 April 2013.
S 44A(2A) inserted by No 194 of 1999, s 2, Sch 3[8].
44A(3)
If an order is in force under subsection
(2) or
(2A) (including an order that has previously been varied on one or more occasions under this subsection):
(a)
the Federal Court of Australia or a Judge of that Court; or
(b)
the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court;
may make an order varying or revoking the first-mentioned order.
History
S 44A(3) amended by No 13 of 2021, s 3 and Sch 2 item 13, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia" in para (b), effective 1 September 2021.
S 44A(3) amended by No 13 of 2013, s 3 and Sch 1 item 6, by substituting "Judge of that Court" for "Federal Magistrate" in para (b), effective 12 April 2013.
S 44A(3) substituted by No 194 of 1999, s 2, Sch 3[9].
44A(4)
An order in force under subsection
(2) or
(2A) (including an order that has previously been varied on one or more occasions under subsection
(3))-
(a)
is subject to such conditions as are specified in the order; and
(b)
has effect until-
(i)
where a period for the operation of the order is specified in the order - the expiration of that period or, if a decision is given on the appeal before the expiration of that period, the giving of the decision; or
(ii)
where no period is so specified - the giving of a decision on the appeal.
History
S 44A(4) inserted by No 143 of 1979, s 9; amended by No 194 of 1999, s 2, Sch 3[10].
History
S 44A amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" wherever occurring, effective on 12 April 2013.
SECTION 45
REFERENCE OF QUESTIONS OF LAW TO FEDERAL COURT OF AUSTRALIA
45(1)
The Tribunal may, with the agreement of the President, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision. The Tribunal may do so on its own initiative or at the request of a party to the proceeding.
Note:
This Part does not apply to certain migration proceedings (see section 43C).
History
S 45(1) substituted by No 60 of 2015, s 3 and Sch 1 item 130, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 45(1) formerly read:
45(1)
The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but-
(a)
a question must not be so referred without the concurrence of the President; and
(b)
(Omitted)
(c)
in respect of a proceeding before the Small Taxation Claims Tribunal - in so referring a question, the interests of the applicant seeking review of a relevant taxation decision must be taken into account.
S 45(1) amended by No 38 of 2005. No 38 of 2005, Sch 1[177], provides:
Application of amendment - subsection 45(1) of the
Administrative Appeals Tribunal Act 1975
The amendment of subsection 45(1) of the Administrative Appeals Tribunal Act 1975 made by this Schedule applies in relation to a question of law referred after the commencement of this item.
For transitional provisions see note under s 2A.
S 45(1) substituted by No 58 of 1977, s 30; amended by No 34 of 1997.
45(2)
The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section.
History
S 45(2) substituted by No 60 of 2015, s 3 and Sch 1 item 130, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 45(2) formerly read:
45(2)
The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section and that jurisdiction shall be exercised by that Court constituted as a Full Court.
S 45(2) substituted by No 58 of 1977, s 30.
45(2A)
If, after consulting the President, the Chief Justice of the Court considers it appropriate, that jurisdiction is to be exercised by the Court constituted as a Full Court.
History
S 45(2A) inserted by No 60 of 2015, s 3 and Sch 1 item 130, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
45(3)
Where a question of law arising in any proceeding has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in that proceeding-
(a)
give a decision to which the question is relevant while the reference is pending; or
(b)
proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.
History
S 45(3) amended by No 157 of 1976; Sch.
SECTION 46
SENDING OF DOCUMENTS TO, AND DISCLOSURE OF DOCUMENTS BY, THE FEDERAL COURT AND THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
46(1)
Sending of documents to courts.
When an appeal is instituted in the Federal Court of Australia in accordance with section 44 or a question of law is referred to that Court in accordance with section 45-
(a)
the Tribunal shall, despite subsections
36(2),
36B(2) and
39B(3) of this Act, and subsection
130H(3) of the
Foreign Acquisitions and Takeovers Act 1975, and subsection 36L(4) of the
Australian Crime Commission Act 2002, cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates and are relevant to the appeal or reference; and
(b)
except in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2) - at the conclusion of the proceeding before the Federal Court of Australia in relation to the appeal or reference, the Court shall cause the documents to be returned to the Tribunal; and
(c)
in the case of an appeal that is transferred to the Federal Circuit and Family Court of Australia (Division 2):
(i)
the Federal Court of Australia must cause the documents to be sent to the Federal Circuit and Family Court of Australia (Division 2); and
(ii)
at the conclusion of the proceedings before the Federal Circuit and Family Court of Australia (Division 2) in relation to the appeal, the Federal Circuit and Family Court of Australia (Division 2) must cause the documents to be returned to the Tribunal.
History
S 46(1) amended by No 44 of 2021, s 3 and Sch 2 item 1, by inserting "and subsection 36L(4) of the Australian Crime Commission Act 2002," in para (a), effective 22 June 2022.
S 46(1) amended by No 13 of 2021, s 3 and Sch 2 item 15, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia" (wherever occurring) in para (b) and (c), effective 1 September 2021.
S 46(1) amended by No 114 of 2020, s 3 and Sch 1 item 222, by inserting "of this Act, and subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975" in para (a), effective 1 January 2021.
S 46(1) amended by No 60 of 2015, s 3 and Sch 1 item 131, by inserting "and are relevant to the appeal or reference" in para (a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 46(1) amended by No 157 of 1976; No 120 of 1988; No 175 of 1995; No 194 of 1999.
46(2)
Disclosure of documents by courts.
If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) of this Act, or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975, or subsection 36L(2) of the Australian Crime Commission Act 2002, certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) shall, subject to subsection (3), do all things necessary to ensure that the matter is not disclosed to any person other than a member of the court as constituted for the purposes of the proceeding. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Circuit and Family Court of Australia (Division 2) as mentioned in subparagraph (1)(c)(i).
Note:
Subsection 39B(10) of this Act deems certain certificates referred to in that subsection to be certificates under subsection 39B(2).
History
S 46(2) amended by No 33 of 2023, s 3 and Sch 1 item 40, by inserting the note, effective 1 July 2023.
S 46(2) amended by No 44 of 2021, s 3 and Sch 2 item 2, by inserting "or subsection 36L(2) of the Australian Crime Commission Act 2002,", effective 22 June 2022.
S 46(2) amended by No 13 of 2021, s 3 and Sch 2 item 15, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia" (wherever occurring), effective 1 September 2021.
S 46(2) amended by No 114 of 2020, s 3 and Sch 1 item 223, by inserting "of this Act, or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975,", effective 1 January 2021.
S 46(2) amended by No 157 of 1976; No 26 of 1982; No 120 of 1988; No 175 of 1995; No 194 of 1999.
46(3)
If-
(a)
the certificate referred to in subsection
(2) relating to matter contained in the document does not specify a reason referred to in paragraph
28(2)(a) or
(b),
36(1)(a) or
(b),
36B(1)(a), or
39B(2)(a) of this Act or subsection
130H(3) of the
Foreign Acquisitions and Takeovers Act 1975, or paragraph 36L(2)(a) or (b) of the
Australian Crime Commission Act 2002, as the case may be;
(b)
a question for decision by the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) is whether the matter should be disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted or the reference was made; and
(c)
the court decides that the matter should be so disclosed;
the court shall permit the part of the document in which the matter is contained to be inspected accordingly.
History
S 46(3) amended by No 44 of 2021, s 3 and Sch 2 item 3, by inserting "or paragraph 36L(2)(a) or (b) of the Australian Crime Commission Act 2002," in para (a), effective 22 June 2022.
S 46(3) amended by No 13 of 2021, s 3 and Sch 2 item 15, by substituting "Federal Circuit and Family Court of Australia (Division 2)" for "Federal Circuit Court of Australia" in para (b), effective 1 September 2021.
S 46(3) amended by No 114 of 2020, s 3 and Sch 1 item 224, by substituting "39B(2)(a) of this Act or subsection 130H(3) of the Foreign Acquisitions and Takeovers Act 1975," for "39B(2)(a)," in para (a), effective 1 January 2021.
S 46(3) amended by No 157 of 1976; No 58 of 1977; substituted by No 26 of 1982; amended by No 120 of 1988; No 175 of 1995; No 194 of 1999.
46(3A)
If the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) is sent:
(a)
a copy of any standard (or part thereof) referred to in subsection
39C(2) of this Act; or
(b)
a document containing any sensitive information referred to in subsection
39C(4);
the relevant court must, subject to this section, do all things necessary to ensure that the copy of any standard (or part thereof) or any information contained in it, or the sensitive information, is not disclosed to any person other than:
(a)
a member of the court as constituted for the purposes of the proceeding; or
(b)
the Director-General of Security or the Director-General's representative.
History
S 46(3A) inserted by No 33 of 2023, s 3 and Sch 1 item 41, effective 1 July 2023.
46(3B)
However, subsection
(3A) does not apply in relation to disclosure to the person who was the applicant, or a person representing the person who was the applicant, in the proceedings before the Tribunal to the extent that the information:
(a)
has already been lawfully disclosed to the person; or
(b)
is disclosed to the person with the consent of the Director-General of Security.
History
S 46(3B) inserted by No 33 of 2023, s 3 and Sch 1 item 41, effective 1 July 2023.
46(4)
Nothing in this section prevents the disclosure of information or of matter contained in a document to an officer of the court in the course of the performance of his or her duties as an officer of the court.
History
S 46(4) inserted by No 58 of 1977; amended by No 26 of 1982; No 175 of 1995; No 194 of 1999.
History
S 46 amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" wherever occurring, effective 12 April 2013.
PART V - ADMINISTRATIVE REVIEW COUNCIL
SECTION 47
INTERPRETATION
47(1)
In this Part, unless the contrary intention appears-
appointed member
means a member referred to in paragraph 49(1)(d);
Council
means the Administrative Review Council;
member
means a member of the Council.
47(2)
[Reference to an administrative decision]
A reference in this Part to an administrative decisionor an administrative discretion includes a reference to an administrative decision made, or administrative discretion exercised, otherwise than under an enactment.
SECTION 48
48
ESTABLISHMENT OF COUNCIL
There is hereby established a Council by the name of the Administrative Review Council.
SECTION 49
COMPOSITION OF COUNCIL
49(1)
The Council shall consist of-
(a)
the President; and
(b)
the Commonwealth Ombudsman holding office under the
Ombudsman Act 1976; and
(ba)
the President of the Australian Human Rights Commission established by the
Australian Human Rights Commission Act 1986; and
(c)
the President of the Australian Law Reform Commission established by the
Australian Law Reform Commission Act 1996; and
(ca)
the Australian Information Commissioner holding office under the
Australian Information Commissioner Act 2010; and
(d)
not fewer than 3 other members or more than:
(i)
unless subparagraph (ii) applies, 10 other members; or
(ii)
if a higher number than 10 is prescribed by the regulations for the purposes of this subparagraph - that higher number of members.
History
S 49(1) amended by No 187 of 2011, s 3 and Sch 1 item 1, by inserting para (ba), effective 7 December 2011.
S 49(1) amended by No 51 of 2010, s 3 and Sch 6 item 41A, by inserting para (ca), effective 1 November 2010.
S 49(1) amended by No 58 of 1977; No 65 of 1985; No 38 of 1996; No 125 of 1999.
49(2)
The members referred to in paragraph (1)(d) shall be appointed by the Governor-General and shall be appointed as part-time members.
49(2A)
The Governor-General shall appoint one of the members to be the President of the Council.
History
S 49(2A) inserted by No 143 of 1979; amended by No 38 of 1988.
49(3)
The performance of the functions or the exercise of the powers of the Council is not affected by a vacancy in the office of a member referred to in paragraphs (1)(a), (b), (ba), (c) or (ca) or by reason of the number of appointed members falling below 3for not more than 3 months.
History
S 49(3) amended by No 187 of 2011, s 3 and Sch 1 item 2, by inserting ", (ba)", effective 7 December 2011.
S 49(3) amended by No 51 of 2010, s 3 and Sch 6 item 41B, by substituting "(c) or (ca)" for "or (c)", effective 1 November 2010.
SECTION 50
50
QUALIFICATIONS FOR APPOINTMENT
A person is not to be appointed as a member referred to in paragraph 49(1)(d) unless he or she:
(a)
has had extensive experience at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or of an authority of a government; or
(b)
has an extensive knowledge of administrative law or public administration; or
(c)
has had direct experience, and has direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions.
History
S 50 amended by No 143 of 1979, s 11; by No 175 of 1995, Sch 3; No 125 of 1999, s 3, Sch 1, item 2.
SECTION 51
FUNCTIONS AND POWERS OF COUNCIL
51(1)
The functions of the Council are-
(aa)
to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system; and
(ab)
to inquire into the adequacy of the procedures used by authorities of the Commonwealth and other persons who exercise administrative discretions or make administrative decisions, and consult with and advise them about those procedures, for the purpose of ensuring that the discretions are exercised, or the decisions are made, in a just and equitable manner; and
(a)
to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body; and
(b)
to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review; and
(c)
to inquire into the adequacy of the law and practice relating to the review by courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice; and
(d)
to inquire into:
(i)
the qualification required for membership of authorities of the Commonwealth, and the qualifications required by other persons, engaged in the review of administrative decisions; and
(ii)
the extent of the jurisdiction to review administrative decisions that is conferred on those authorities and other persons; and
(iii)
the adequacy of the procedures used by those authorities and other persons in the exercise of that jurisdiction;
and to consult with and advise those authorities and other persons about the procedures used by them as mentioned in subparagraph (iii) and recommend to the Minister any improvements that might be made in respect of any of the matters referred to in subparagraphs (i), (ii) and (iii); and
(e)
to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted; and
(f)
to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and
(g)
to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions; and
(h)
to promote knowledge about the Commonwealth administrative law system; and
(i)
to consider, and report to the Minister on, matters referred to the Council by the Minister.
History
S 51(1) amended by No 125 of 1999, s 3, Sch 1, items 3-6.
51(2)
[General power]
The Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions.
51(3)
[Minister to receive copy]
If the Council holds an inquiry, or gives any advice, referred to in paragraph (1)(ab), the Council must give the Minister a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.
History
S 51(3) amended by No 125 of 1999, s 3, Sch 1, item 7.
SECTION 51A
51A
MINISTER MAY GIVE DIRECTIONS TO THE COUNCIL
The Minister may, by writing given to the President of the Council, give directions to the Council in respect of the performance of its functions or the exercise of its powers and the Council must comply with any such directions.
History
S 51A inserted by No 125 of 1999, s 3, Sch 1, item 8.
SECTION 51B
51B
MINISTER MAY REFER MATTERS TO THE COUNCIL
The Minister may, by writing given to the President of the Council, refer matters to the Council for inquiry and report.
History
S 51B inserted by No 125 of 1999, s 3, Sch 1, item 8.
SECTION 51C
REPORTS BY THE COUNCIL
51C(1)
[Report to Minister]
When the Council concludes its consideration of:
(a)
a matter relating to a project in respect of which the Council has determined that a report is to be prepared; or
(b)
a matter referred by the Minister to the Council for inquiry and report;
the Council is to prepare a report on the matter and give the report to the Minister.
51C(2)
[Report to Parliament]
The Minister must cause a copy of a report so given to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.
History
S 51C(2) inserted by No 125 of 1999, s 3, Sch 1, item 8.
SECTION 52
PERIOD OF APPOINTMENT
52(1)
General rule.
Subject to this section, an appointed member shall be appointed for such period, not exceeding 3 years, as the Governor-General specifies in the instrument of his or her appointment, but is eligible for re-appointment.
History
S 52(1), formerly s 52, amended by No 175 of 1995, Sch 3; No 125 of 1999, s 3, Sch 1, item 9.
52(2)
Special rule - appointment for a particular project.
An instrument of appointment of a person as an appointed member may state that the person is appointed for the purposes of a particular project specified in the instrument that is being, or is to be, undertaken by the Council.
History
S 52(2) inserted by No 125 of 1999, s 3, Sch 1, item 10.
52(3)
[Instrument of appointment]
If an instrument of appointment of a person contains a statement as mentioned in subsection (2), subsection (1) does not apply to the appointment but:
(a)
the person is to be appointed for such period, not exceeding 3 years, as is specified in the instrument of appointment; and
(b)
the person is to take part in the project and has the rights of a member only for the purposes of taking part in the project; and
(c)
the Governor-General may at any time, by writing, terminate the appointment; and
(d)
if the appointment has not previously ended under paragraph (a) of under section 54 or 55 or been terminated under paragraph (c), it ends when the President of the Council certifies in writing that the Council has finished the project; and
(e)
when the appointment ends or is terminated, the person is eligible for reappointment, whether for the purpose of taking part in the same project or another project or otherwise.
History
S 52(3) inserted by No 125 of 1999, s 3, Sch 1, item 10.
SECTION 53
REMUNERATION AND ALLOWANCES
53(1)
An appointed member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by that Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.
History
S 53(1) amended by No 175 of 1995.
53(2)
[Allowances]
An appointed member shall be paid such allowances as are prescribed.
53(3)
[Subject to Act]
This section has effect subject to the Remuneration Tribunal Act 1973-1974.
History
S 53(3) amended by No 43 of 1996.
SECTION 54
RESIGNATION
54(1)
[Resignation in writing]
An appointed member may resign his or her appointment by giving the Governor-General a written resignation.
54(2)
[When resignation takes effect]
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.
History
S 54 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 54 amended by No 175 of 1995.
SECTION 55
REMOVAL FROM OFFICE
55(1)
The Governor-General may remove an appointed member from office for misbehaviour or incapacity.
55(2)
[For absence]
If an appointed member is absent, except by leave of the Minister, from 3 consecutive meetings of the Council, the Governor-General may remove him or her from office.
History
S 55(2) amended by No 175 of 1995, Sch 3.
SECTION 56
MEETINGS
56(1)
[Number of meetings]
The Council shall hold such meetings as are necessary for the performance of its functions.
56(2)
Convening meeting.
The President of the Council may at any time convene a meeting of the Council.
History
S 56(2) amended by No 143 of 1979, s 12; No 38 of 1988, s 3, Sch 1.
56(3)
[Request by members]
The President of the Council shall, on receipt of a request in writing signed by 3 members, convene a meeting of the Council.
History
S 56(3) amended by No 143 of 1979, s 12; No 38 of 1988, s 3, Sch 1.
56(4)
Quorum.
At a meeting of the Council, 5 members constitute a quorum.
History
S 56(4) amended by No 187 of 2011, s 3 and Sch 1 item 3, by substituting "5 members" for "4 members", effective 7 December 2011.
56(5)
Who is to preside.
The President of the Council shall preside at all meetings of the Council at which he or she is present.
History
S 56(5) amended by No 143 of 1979, s 12; No 38 of 1988, s 3, Sch 1; by No 175 of 1995, Sch 3.
56(6)
[Absence of President of the Council]
If the President of the Council is not present at a meeting of the Council, the members present shall elect one of their number to preside at that meeting and the person so elected shall preside accordingly.
History
S 56(6) amended by No 143 of 1979, s 12; No 38 of 1988, s 3, Sch 1.
56(7)
Questions to be determined by majority.
Questions arising at a meeting of the Council shall be determined by a majority of the votes of the members present and voting.
56(8)
Presiding member has deliberative vote etc.
The member presiding at a meeting of the Council has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
56(9)
Council may regulate meetings.
The Council may regulate the conduct of proceedings at its meetings as it thinks fit and shall keep minutes of those proceedings.
56(10)
Acting ombudsman may attend meetings.
A person acting in the office of the Commonwealth Ombudsman may attend a meeting of the Council and, in relation to a meeting of the Council that he or she attends in pursuance with this subsection, shall be deemed to be the Commonwealth Ombudsman.
History
S 56(10) amended by No 58 of 1977, s 38; by No 175 of 1995, Sch 3.
SECTION 57
57
STAFF OF COUNCIL
The staff of the Council shall be persons engaged under the
Public Service Act 1999.
History
S 57 amended by No 146 of 1999, s 2, Sch 1[47].
SECTION 58
ANNUAL REPORT
58(1)
The Council shall, as soon as practicable after 30 June in each year, prepare and give to the Minister a report of the operations of the Council during that year.
History
S 58(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
58(2)
[Laid before Parliament]
The Minister shall cause the report of the Council to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Minister.
58(3)
[First report]
The first report by the Council shall relate to the period commencing on the date of commencement of this Act and ending on 30 June 1977.
History
S 58(3) amended by No 58 of 1977, s 33.
PART VI - MISCELLANEOUS
SECTION 59
ADVISORY OPINIONS
59(1)
If an enactment so provides, the Tribunal may give an advisory opinion on a matter or question referred to it in accordance with the enactment and, for the purpose of giving such an opinion, the Tribunal may hold such hearings and inform itself in such manner as it thinks appropriate.
59(2)
If the regulations so provide, the Tribunal may give an advisory opinion on a matter or question:
(a)
arising under a Norfolk Island enactment; and
(b)
referred to the Tribunal in accordance with the regulations;
and, for the purpose of giving such an opinion, the Tribunal may hold such hearings and inform itself in such manner as it thinks appropriate.
History
S 59(2) inserted by No 139 of 2010, s 3 and Sch 1 item 148, effective 1 January 2011.
History
S 59 amended by No 139 of 2010, s 3 and Sch 1 item 147, by inserting "(1)" before "If an enactment", effective 1 January 2011.
SECTION 59A
AUTHORISED MEMBERS
59A(1)
The President may, in writing, authorise a member to be an authorised member for the purposes of one or more specified provisions of this Act or any other enactment.
59A(2)
The authorisation may be general or limited to specified decisions or proceedings or to specified functions or powers.
History
S 59A(2) amended by No 3 of 2022, s 3 and Sch 1 item 58, by inserting "or to specified functions or powers", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
History
S 59A substituted by No 60 of 2015, s 3 and Sch 1 item 132, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 59A formerly read:
SECTION 59A AUTHORISED MEMBERS
59A(1)
The President may authorise a particular member to be an authorised member for the purposes of one or more specified provisions of this Act.
59A(2)
An authorisation under subsection (1), to the extent to which it relates to a particular provision of this Act, may be:
(a)
general; or
(b)
limited to:
(i)
a particular reviewable decision or particular reviewable decisions; or
(ii)
reviewable decisions included in a particular class or classes of reviewable decisions; or
(iii)
a particular proceeding or particular proceedings; or
(iv)
proceedings included in a particular class or classes of proceedings.
59A(3)
The President may at any time vary or revoke an authorisation under subsection (1).
59A(4)
In this section:
reviewable decision
means a decision in respect of which an application to the Tribunal for review has been, or may be, made.
S 59A inserted by No 38 of 2005. No 38 of 2005, Sch 1[181] provides:
Transitional - section 59A of the
Administrative Appeals Tribunal Act 1975
181(1)
This item applies to the power to make an authorisation under section 59A of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
181(2)
For the purposes of section 4 of the Acts Interpretation Act 1901, that power is taken to be a power to make an instrument of an administrative character.
For further transitional provisions see note under s 2A.
SECTION 59B
AUTHORISED OFFICERS
59B(1)
The President may, in writing, authorise an officer of the Tribunal to be an authorised officer for the purposes of one or more specified provisions of this Act or any other enactment.
59B(2)
The authorisation may be general or limited to specified decisions or proceedings or to specified functions or powers.
History
S 59B(2) amended by No 3 of 2022, s 3 and Sch 1 item 59, by inserting "or to specified functions or powers", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
History
S 59B inserted by No 60 of 2015, s 3 and Sch 1 item 132, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 60
PROTECTION AND IMMUNITY
Members
60(1)
A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.
History
S 60(1) amended by No 175 of 1995, Sch 3.
Alternative dispute resolution practitioners
60(1A)
An alternative dispute resolution practitioner has, in the performance of his or her duties as an alternative dispute resolution practitioner under this Act, the same protection and immunity as a Justice of the High Court.
History
S 60(1A) amended by No 38 of 2005. No 38 of 2005, Sch 1[184], provides:
Transitional - subsection 60(1A) of the
Administrative Appeals Tribunal Act 1975
Despite the amendments of subsection 60(1A) of the Administrative Appeals Tribunal Act 1975 made by this Schedule, that subsection continues to apply after the commencement of this item, in relation to anything done or omitted to be done by a mediator before the commencement of this item, as if those amendments had not been made.
For transitional provisions see note under s 2A.
S 60(1A) inserted by No 31 of 1993.
Officers of the Tribunal
60(1B)
An officer of the Tribunal has, in the performance of his or her duties as an officer of the Tribunal under subsections
29(9) and
29AC(2), paragraph
33(2)(a) and sections
40,
40A,
40B and
69A, the same protection and immunity as a Justice of the High Court.
History
S 60(1B) substituted by No 60 of 2015, s 3 and Sch 1 item 134, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 60(1B) formerly read:
60(1B)
Registrars, District Registrars or Deputy Registrars.
A Registrar, a District Registrar or a Deputy Registrar has, in the performance of his or her duties as a Registrar, a District Registrar or a Deputy Registrar under section 40 or 69A, the same protection and immunity as a Justice of the High Court.
S 60(1B) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
60(1C)
(Repealed by No 60 of 2015)
History
S 60(1C) repealed by No 60 of 2015, s 3 and Sch 1 item 134, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 60(1C) formerly read:
60(1C)
Conference Registrars.
A Conference Registrar has, in the performance of his or her duties as a Conference Registrar under paragraph 33(2)(a), the same protection and immunity as a Justice of the High Court.
S 60(1C) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Barristers etc.
60(2)
A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
Witnesses
60(3)
Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court.
Definitions
60(4)
In this section:
alternative dispute resolution practitioner
means a person who conducts an alternative dispute resolution process under Division 3 of Part IV.
History
S 60(4) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 61
FAILURE TO COMPLY WITH SUMMONS
61(1)
A person commits an offence if:
(a)
the person is given, in accordance with any applicable regulations or directions, a summons referred to in section
40A; and
(b)
the person fails to comply with the summons.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
61(2)
Subsection (1) does not apply if complying with the summons might tend to incriminate the person.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
History
S 61 substituted by No 60 of 2015, s 3 and Sch 1 item 135, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 61 formerly read:
SECTION 61 FAILURE TO COMPLY WITH SUMMONS
61(1)
Summons to appear as a witness.
A person is guilty of an offence if:
(a)
the person is given, as prescribed, a summons under this Act to appear as a witness before the Tribunal; and
(b)
the person:
(i)
fails to attend as required by the summons; or
(ii)
fails to appear and report from day to day unless excused, or released from further attendance, by a member.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
61(2)
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
61(3)
Summons to produce a book, document or thing.
A person is guilty of an offence if:
(a)
the person is given, as prescribed, a summons under this Act to produce a book, document or thing; and
(b)
the person fails to comply with the summons.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
61(4)
Subsection (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
S 61 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 62
REFUSAL TO BE SWORN OR TO ANSWER QUESTIONS
62(1)
Oath or affirmation.
A person commits an offence if:
(a)
the person appears as a witness before the Tribunal; and
(b)
the person has been required under section
40 either to take an oath or make an affirmation; and
(c)
the person fails to comply with the requirement.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
History
S 62(1) amended by No 60 of 2015, s 3 and Sch 1 items 136 and 137, by substituting "commits" for "is guilty of" and the penalty, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The penalty formerly read:
Penalty: 30 penalty units or imprisonment for 6 months, or both.
62(2)
(Repealed by No 60 of 2015)
History
S 62(2) repealed by No 60 of 2015, s 3 and Sch 1 item 138, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 62(2) formerly read:
62(2)
Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).
62(3)
Questions.
A person commits an offence if:
(a)
the person appears as a witness before the Tribunal; and
(b)
the member presiding at the proceeding has required the person to answer a question; and
(c)
the person fails to answer the question.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
History
S 62(3) amended by No 60 of 2015, s 3 and Sch 1 items 139 and 140, by substituting "commits" for "is guilty of" and the penalty, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The penalty formerly read:
Penalty: 30 penalty units or imprisonment for 6 months, or both.
62(4)
Subsection (3) does not apply if answering the question might tend to incriminate the person.
Note:
A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
History
S 62(4) substituted by No 60 of 2015, s 3 and Sch 1 item 141, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 62(4) formerly read:
62(4)
Subsection (3) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
62(5)
(Repealed by No 60 of 2015)
History
S 62(5) repealed by No 60 of 2015, s 3 and Sch 1 item 141, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 62(5) formerly read:
62(5)
Books, documents or things.
A person is guilty of an offence if:
(a)
the person appears as a witness before the Tribunal; and
(b)
the person has been given, as prescribed, a summons under this Act to produce a book, document or thing; and
(c)
the person fails to produce the book, document or thing.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
62(6)
(Repealed by No 60 of 2015)
History
S 62(6) repealed by No 60 of 2015, s 3 and Sch 1 item 141, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 62(6) formerly read:
62(6)
Subsection (5) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).
History
S 62 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 62A
62A
FALSE OR MISLEADING EVIDENCE
A person commits an offence if:
(a)
the person appears as a witness before the Tribunal; and
(b)
the person gives evidence; and
(c)
the person does so knowing that the evidence is false or misleading.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
History
S 62A amended by No 60 of 2015, s 3 and Sch 1 items 142 and 143, by substituting "commits" for "is guilty of" and the penalty, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The penalty formerly read:
Penalty: 30 penalty units or imprisonment for 6 months, or both.
S 62A substituted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 62B
62B
EXTENDED OPERATION OF CERTAIN PROVISIONS
Sections 61, 62 and 62A apply in relation to a directions hearing or an alternative dispute resolution process under Division
3 as if it were a proceeding before the Tribunal.
History
S 62B amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 62B inserted by No 31 of 1993.
SECTION 62C
62C
BREACH OF NON-DISCLOSURE ORDER
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the conduct contravenes an order under subsection
35(3) or
(4) or
35AA(2).
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
History
S 62C inserted by No 60 of 2015, s 3 and Sch 1 item 144, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 63
CONTEMPT OF TRIBUNAL
63(1)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the conduct obstructs or hinders the Tribunal or a member in the performance of the functions of the Tribunal.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
63(2)
A person commits an offence if:
(a)
the person engages in conduct; and
(b)
the conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
History
S 63 substituted by No 60 of 2015, s 3 and Sch 1 item 144, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 63 formerly read:
SECTION 63 CONTEMPT OF TRIBUNAL
63(1)
Insulting a member.
A person is guilty of an offence if:
(a)
the person engages in conduct; and
(b)
the person's conduct insults a member in, or in relation to, the exercise of his or her powers or functions as a member.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
63(2)
Interrupting proceedings of the Tribunal.
A person is guilty of an offence if:
(a)
the person engages in conduct; and
(b)
the person's conduct interrupts the proceedings of the Tribunal.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
63(3)
Creating a disturbance.
A person is guilty of an offence if:
(a)
the person engages in conduct; and
(b)
the person's conduct creates a disturbance in or near a place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
63(4)
Taking part in creating or continuing a disturbance.
A person is guilty of an offence if:
(a)
the person takes part in creating or continuing a disturbance; and
(b)
the disturbance is in or near a place where the Tribunal is sitting.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
63(5)
Contempt of Tribunal.
A person is guilty of an offence if:
(a)
the person engages in conduct; and
(b)
the person's conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Penalty: 30 penalty units or imprisonment for 6 months, or both.
S 63 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 64
64
REGISTRIES
The Minister may establish such registries of the Tribunal as the Minister thinks fit.
History
S 64 substituted by No 60 of 2015, s 3 and Sch 1 item 144, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 64 formerly read:
SECTION 64 REGISTRIES
64(1)
The Governor-General shall cause such Registries of the Tribunal to be established as he or she thinks fit, but so that at least one Registry shall be established in each State.
History
S 64(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 64(1) amended by No 175 of 1995.
64(2)
The Governor-General shall designate one of the Registries as the Principal Registry.
65
(Repealed) SECTION 65 OFFICERS OF TRIBUNAL
(Repealed by No 60 of 2015)
History
S 65 repealed by No 60 of 2015, s 3 and Sch 1 item 144, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 65 formerly read:
SECTION 65 OFFICERS OF TRIBUNAL
65
In relation to a proceeding, the officers of the Tribunal have such respective duties, powers and functions as are given by this Act or by the President.
S 65 substituted by No 157 of 1989; No 175 of 1995.
SECTION 66
CONFIDENTIAL INFORMATION NOT TO BE DISCLOSED
Protected documents and information
66(1)
An entrusted person must not be required to produce a protected document, or disclose protected information, to a court except so far as necessary for the purposes of carrying into effect the provisions of this Act or another enactment conferring powers on the Tribunal.
History
S 66(1) substituted by No 60 of 2015, s 3 and Sch 1 item 145, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 66(1) formerly read:
66(1)
Protected information.
A person who is, or has been, a member or an officer of the Tribunal is not competent, and shall not be required, to give evidence to a court relating to a matter if-
(a)
the giving of the evidence would be contrary to an order of the Tribunal in force under subsection 35(2) or under a similar provision of an enactment other than this Act;
(b)
an application has been made to the Tribunal for an order under that subsection, or under such a similar provision, concerning the matter to which the evidence would relate and the Tribunal has not determined that application; or
(c)
a certificate under section 36 or 36B is in force certifying that the disclosure of information concerning the matter to which the evidence would relate would be contrary to the public interest for a reason referred to in subsection 36(1) or 36B(1) and, where the certificate does not specify a reason referred to in paragraph 36(1)(a) or (b), or 36B(1)(a), as the case may be, the Tribunal has not made information concerning that matter available to the parties to a proceeding before the Tribunal and, in the case of information contained in a document, has not permitted the parties to such a proceeding to inspect the document.
S 66(1) substituted by No 58 of 1977; amended by No 193 of 1985; No 120 of 1988.
66(2)
An entrusted person must not be required to produce a protected document, or disclose protected information, to a parliament if:
(a)
the document or information relates to a Part 7 - reviewable decision within the meaning of the
Migration Act 1958; and
(b)
the production or disclosure is not necessary for the purposes of carrying into effect the provisions of this Act or another enactment conferring powers on the Tribunal.
History
S 66(2) substituted by No 60 of 2015, s 3 and Sch 1 item 145, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 66(2) formerly read:
66(2)
Protected documents.
A person who is, or has been, a member or an officer of the Tribunal shall not be required to produce in a court a document given to the Tribunal in connexion with a proceeding if-
(a)
the production of the document would be contrary to an order of the Tribunal in force under subsection 35(2) or under a similar provision of an enactment other than this Act;
(b)
an application has been made to the Tribunal for an order under that subsection, or under such a similar provision, in relation to the document and the Tribunal has not determined that application; or
(c)
a certificate under section 36 or 36B is in force certifying that the disclosure of matter contained in the document would be contrary to the public interest for a reason referred to in subsection 36(1) or 36B(1) and, where the certificate does not specify a reason referred to in paragraph 36(1)(a) or (b), or 36B(1)(a), as the case may be, the Tribunal has not permitted the parties to a proceeding before the Tribunal to inspect the document.
S 66(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 66(2) substituted by No 58 of 1977; amended by No 120 of 1988.
66(3)
Tribunal proceedings.
A person who is, or has been, a member of the Tribunal shall not be required to give evidence to a court in relation to any proceedings before the Tribunal.
History
S 66(3) substituted by No 58 of 1977.
66(4)
Definitions.
In this section-
court
includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
enactment
includes a Norfolk Island enactment.
History
Definition of "enactment" inserted by No 139 of 2010, s 3 and Sch 1 item 149, effective 1 January 2011.
entrusted person
means any of the following:
(a)
a person who is or has been a member of the Tribunal;
(b)
a person who is or has been an officer of the Tribunal;
(c)
a person who is or has been a member of the staff of the Tribunal;
(d)
a person who is or has been engaged by the Tribunal to provide services to the Tribunal during a proceeding before the Tribunal.
History
Definition of "entrusted person" inserted by No 60 of 2015, s 3 and Sch 1 item 146, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
parliament
means:
(a)
a House of the Parliament of the Commonwealth, of a State or of a Territory; or
(b)
a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory.
History
Definition of "parliament" inserted by No 60 of 2015, s 3 and Sch 1 item 146, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
produce
includes permit access to.
protected
: 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.
History
Definition of "protected" inserted by No 60 of 2015, s 3 and Sch 1 item 146, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Note:
Section 81 of the Australian Security Intelligence Organisation Act 1979 contains additional provisions relating to secrecy that apply to members and officers of the Tribunal.
History
S 66(4) substituted by No 58 of 1977.
Note to s 66 inserted by No 175 of 1995; amended by No 161 of 1999.
SECTION 66A
APPLICATION OF CONFIDENTIALITY PROVISIONS IN OTHER ACTS
66A(1)
If:
(a)
a provision of an enactment (other than this Act) prohibits the disclosure, whether absolutely, in certain circumstances only or subject to conditions, of information by persons who:
(i)
are included in a particular class of persons; and
(ii)
acquired the information in the course of their duties under the enactment; and
(b)
a person who is or has been a member, an officer of the Tribunal or a member of the staff of the Tribunal has acquired or acquires any such information in the course of his or her duties as such a member, officer or member of the staff;
that provision applies to the person as if he or she were included in the particular class of persons and acquired the information in the course of duties under the enactment.
66A(2)
In this section:
enactment
includes a Norfolk Island enactment.
History
S 66A(2) inserted by No 139 of 2010, s 3 and Sch 1 item 151, effective 1 January 2011.
S 66A amended by No 139 of 2010, s 3 and Sch 1 item 150, by inserting "(1)" before "If:", effective 1 January 2011.
S 66A inserted by No 175 of 1995, s 3, Sch 2.
SECTION 66B
PUBLICATION OF TRIBUNAL DECISIONS
66B(1)
The Tribunal may, by any means it considers appropriate, publish its decisions and the reasons for them.
66B(2)
Subsection (1) does not authorise the Tribunal to publish information the disclosure of which is prohibited or restricted by or under this Act or any other enactment conferring jurisdiction on the Tribunal.
History
S 66B inserted by No 60 of 2015, s 3 and Sch 1 item 147, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 67
FEES FOR COMPLIANCE WITH SUMMONS
67(1)
A person who, under a prescribed provision of this Act or another enactment, is required to give evidence, or produce a document or give information, for the purposes of a proceeding before the Tribunal is to be paid, in accordance with the regulations, any fee or allowance prescribed by the regulations in relation to compliance with the requirement.
67(2)
Without limiting the matters that may be dealt with by regulations made for the purposes of subsection (1), the regulations may:
(a)
prescribe circumstances in which a fee or allowance is not payable; or
(b)
provide that a fee or allowance is to be paid:
(i)
if the requirement was made of the person at the request of a party to the proceeding - by the party; or
(ii)
by the Commonwealth.
History
S 67 substituted by No 60 of 2015, s 3 and Sch 1 item 148, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 67 formerly read:
SECTION 67 FEES FOR COMPLIANCE WITH SUMMONS
67(1)
A person summoned under this Act is entitled to be paid fees, and allowances for expenses, fixed by or in accordance with the regulations in respect of his or her compliance with the summons.
History
S 67(1) amended by No 38 of 2005. No 38 of 2005, Sch 1[197], provides:
Application - section 67 of the
Administrative Appeals Tribunal Act 1975
The amendments of section 67 of the Administrative Appeals Tribunal Act 1975 made by this Schedule apply in relation to a summons issued after the commencement of this item.
For transitional provisions see note under s 2A.
S 67(1) amended by No 175 of 1995.
67(2)
Subject to subsection (3), the fees and allowances shall be paid-
(a)
in a case where the person was summoned at the request of a party - by that party; and
(b)
in any other case - by the Commonwealth.
History
S 67(2) amended by No 38 of 2005. For application and transitional provisions see note under s 67(1) and 2A.
S 67(2) amended by No 58 of 1977.
67(3)
The Tribunal may, in its discretion, order that the fees and allowances of a person referred to in paragraph (2)(a) shall be paid, in whole or in part, by the Commonwealth.
History
S 67(3) amended by No 38 of 2005. For application and transitional provisions see note under s 67(1) and 2A.
S 67(3) amended by No 58 of 1977.
SECTION 67A
GIVING OF NOTICES
67A(1)
A notice that is required or permitted by this Act to be given to the person who made a decision (other than a decision under a Norfolk Island enactment) may be given to-
(a)
the Secretary of the Department administered by the Minister who administers-
(i)
the enactment under which the decision was given; or
(ii)
if that enactment was made in pursuance of a power contained in another enactment - that other enactment; or
(b)
if a provision of the regulations or of any other enactment prescribes the holder of a particular office as a person to whom notices may be given under this Act in relation to a class of decisions in which that decision is included - the holder of that office.
67A(2)
A notice that is required or permitted by this Act to be given to the Secretary of the Department administered by the Minister administering the
Norfolk Island Act 1979.
History
S 67A(2) amended by No 59 of 2015, s 3 and Sch 2 item 33, by substituting "to the Secretary of the Department administered by the Minister administering the Norfolk Island Act 1979" for all the words after "given", effective 1 July 2016. The words after "given" formerly read:
to the person who made a decision under a Norfolk Island enactment may be given to the Chief Executive Officer (within the meaning of the Public Service Act 2014 of Norfolk Island)
S 67A(2) amended by No 59 of 2015, s 3 and Sch 1 item 89, by substituting "Public Service Act 2014" for "Public Sector Management Act 2000", effective 18 June 2015.
S 67A(2) inserted by No 139 of 2010, s 3 and Sch 1 item 154, effective 1 January 2011.
History
S 67A amended by No 139 of 2010, s 3 and Sch 1 items 152 and 153, by inserting "(1)" before "A notice" and inserting "(other than a decision under a Norfolk Island enactment)" after "a decision", effective 1 January 2011.
S 67A amended by No 38 of 2005. For application and transitional provisions see note under s 67(1) and 2A.
S 67A inserted by No 58 of 1977, s 35; amended by No 63 of 1984.
SECTION 68
GIVING DOCUMENTS
68(1)
A document or thing that is required or permitted by this Act or another enactment to be lodged with, or given to, the Tribunal must be lodged or given in accordance with:
(a)
any direction under section
18B; or
(b)
regulations made under this Act or the other enactment.
68(2)
A document that is required or permitted by this Act or another enactment to be given to a person for the purposes of a proceeding before the Tribunal must be given to the person in accordance with:
(a)
any direction under section
18B; or
(b)
regulations made under this Act or the other enactment.
68(3)
A direction given under section
18B for the purposes of paragraph (1)(a) or (2)(a) must not be inconsistent with regulations in force for the purposes of paragraph (1)(b) or (2)(b).
68(4)
Subsections (1) and (2) do not apply to the extent to which this Act or another enactment specifies how a document or thing is to be lodged with or given to the Tribunal, or given to a person, for the purposes of a proceeding before the Tribunal.
History
S 68 substituted by No 132 of 2015, s 3 and Sch 1 item 5, effective 14 October 2015. No 132 of 2015, s 3 and Sch 1 item 6 contains the following savings provision:
6 Savings provision
The amendment of section 68 of the Administrative Appeals Tribunal Act 1975 made by this Schedule does not affect a direction or regulation in force for the purposes of section 68 immediately before the commencement of the amendment.
S 68 formerly read:
SECTION 68 GIVING DOCUMENTS
68(1)
A document or thing that is required or permitted by this Act or another enactment to be lodged with or given to the Tribunal must be lodged or given:
(a)
in the manner prescribed by regulations made under this Act or the other enactment; or
(b)
if those regulations do not prescribe a manner - in accordance with any direction under section 18B.
68(2)
A document that is required or permitted by this Act or another enactment to be given to a person for the purposes of a proceeding before the Tribunal must be given to the person:
(a)
in the manner prescribed by regulations made under this Act or the other enactment; or
(b)
if those regulations do not prescribe a manner - in accordance with any direction under section 18B.
68(3)
Subsections (1) and (2) do not apply to the extent to which this Act or another enactment specifies how a document or thing is to be lodged with or given to the Tribunal, or given to a person, for the purposes of a proceeding before the Tribunal.
S 68 substituted by No 60 of 2015, s 3 and Sch 1 item 149, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 68 formerly read:
SECTION 68 LODGING OF DOCUMENTS
68(1)
Where a document is required by this Act to be lodged with the Tribunal, the document shall be lodged at a registry of the Tribunal.
History
S 68(1) amended by No 175 of 1995.
68(2)
Subject to such requirements (if any) as are prescribed, such documents may be lodged by means of electronic transfer.
History
S 68(2) inserted by No 31 of 1993.
SECTION 68AA
68AA
PRESIDENT'S DIRECTIONS
If the President gives a direction that, under this Act, is to be a written direction, a failure to give the direction in writing does not invalidate anything done in accordance with or otherwise in relation to or as a consequence of the direction.
History
S 68AA substituted by No 60 of 2015, s 3 and Sch 1 item 149, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 68AA formerly read:
SECTION 68AA HOW DOCUMENTS MAY BE GIVEN TO A PERSON
68AA(1)
Post.
For the purposes of this Act:
(a)
a document, statement, notice or other notification is taken to be given to a person if it is sent by post to whichever of the following addresses is applicable:
(i)
if the document, statement, notice or other notification relates to a proceeding and the person has provided an address to which documents in relation to the proceeding may be sent - that address;
(ii)
if subparagraph (i) does not apply and the person is not a company - the address of the place of residence or business of the person last known to the person posting the document, statement, notice or other notification;
(iii)
if subparagraph (i) does not apply and the person is a company - the address of the registered office of the company; and
(b)
a document, statement, notice or other notification so sent by post is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or other notification would have been delivered in the ordinary course of post.
Note: See also the Electronic Transactions Act 1999.
68AA(2)
Tribunal direction.
For the purposes of this Act:
(a)
if:
(i)
a person is not a company; and
(ii)
the person's present or any previous place of residence or business is unknown;
a document, statement, notice or other notification is taken to be given to the person, if it is given in accordance with a direction given by the Tribunal; and
(b)
if, in accordance with that direction, the document, statement, notice or notification is sent by post - the document, statement, notice or notification is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or notification would have been delivered in the ordinary course of post.
68AA(3)
Electronic communication.
For the purposes of this Act, if a document, statement, notice or other notification is given to a person by means of an electronic communication (within the meaning of the Electronic Transactions Act 1999), the document, statement, notice or other notification is taken to have been given on the day on which the electronic communication is dispatched.
68AA(4)
Subsection (3) of this section has effect despite subsections 14(3) and (4) of the
Electronic Transactions Act 1999.
S 68AA inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 68A
CALCULATION OF SHORT PERIODS OF TIME
68A(1)
If the period of time for doing anything under this Act or any other Act, or in accordance with a direction of the Tribunal, in relation to a proceeding is a period of less than 7 days, any day on which the Registry of the Tribunal in which the relevant application was lodged is not open to the public is not to be counted in working out whether the period has ended.
History
S 68A amended by No 60 of 2015, s 3 and Sch 1 item 150, by inserting "(1)" before "If", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
68A(2)
Subsection (1) does not apply in relation to a proceeding in the Migration and Refugee Division.
History
S 68A(2) inserted by No 60 of 2015, s 3 and Sch 1 item 151, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 68A inserted by No 175 of 1995, s 3, Sch 2.
SECTION 69
LEGAL ASSISTANCE
69(1)
A person who-
(a)
has made, or proposes to make, an application to the Tribunal for a review of a decision;
(b)
is a party to a proceeding before the Tribunal instituted by another person; or
(c)
proposes to institute a proceeding, or is a party to a proceeding instituted, before a court in respect of a matter arising under this Act,
may apply to the Attorney-General for the provision of assistance under this section in respect of the proceeding.
69(2)
Where an application is made by a person under subsection (1), the Attorney-General may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the provision by the Commonwealth to that person, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance in relation to the proceeding as the Attorney-General determines.
History
S 69(2) amended by No 58 of 1977, s 38; amended by No 175 of 1995, Sch 3.
69(3)
This section does not apply if the powers of the Tribunal in relation to the application, proceeding or matter concerned are or would be exercisable in the Migration and Refugee Division or the Social Services and Child Support Division.
History
S 69(3) inserted by No 60 of 2015, s 3 and Sch 1 item 152, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 69A
PROCEDURE FOR TAXING COSTS
69A(1)
If:
(a)
the Tribunal has, under this Act or another enactment, ordered a party to a proceeding to pay costs incurred by another party; and
(b)
the parties cannot agree on the amount of those costs;
the Tribunal or an officer of the Tribunal may tax the costs.
History
S 69A(1) amended by No 3 of 2022, s 3 and Sch 1 item 61, by omitting "reasonable" before "costs" from para (a), applicable in relation to orders made by the Tribunal on or after 18 February 2022.
69A(2)
If an officer of the Tribunal has taxed the costs in accordance with subsection
(1), either party may apply to the Tribunal for review of the taxed amount.
69A(3)
If a party does so, the Tribunal must review the taxed amount and may:
(a)
affirm the amount; or
(b)
set aside the amount and substitute another amount; or
(c)
set aside the amount and remit the matter to the officer of the Tribunal to be taxed in accordance with the directions of the Tribunal.
69A(4)
An amount that a party to a proceeding is required to pay to another party under an order made by the Tribunal is recoverable by the other party as a debt due to the other party by the first-mentioned party.
History
S 69A substituted by No 60 of 2015, s 3 and Sch 1 item 153, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 69A formerly read:
SECTION 69A PROCEDURE FOR TAXING COSTS
69A(1)
If:
(a)
the Tribunal has, under this Act or any other Act, ordered a party to a proceeding to pay to another party to the proceeding reasonable costs incurred by the other party; and
(b)
the parties are unable to agree as to the amount of those costs;
the President may give such directions as he or she thinks appropriate for the costs:
(c)
to be taxed or settled by the Tribunal; or
(d)
to be taxed by the Registrar, a District Registrar or a Deputy Registrar.
History
S 69A(1) inserted by No 175 of 1995, s 3, Sch 2.
69A(2)
If the Registrar, a District Registrar or a Deputy Registrar has taxed under paragraph (1)(d) the amount to be paid to a party to a proceeding by another party to the proceeding, either of those parties may apply to the Tribunal for review of the amount so taxed.
History
S 69A(2) inserted by No 175 of 1995, s 3, Sch 2.
69A(3)
If such an application is made, the Tribunal must review the amount taxed and may:
(a)
affirm the amount; or
(b)
set aside the amount and substitute another amount; or
(c)
set aside the amount and remit the matter to the Registrar, District Registrar or Deputy Registrar, as the case may be, to be taxed in accordance with the directions of the Tribunal.
History
S 69A(3) inserted by No 175 of 1995, s 3, Sch 2.
69A(4)
An amount that a party to a proceeding is required under an order made by the Tribunal to pay to another party to the proceeding is recoverable by the other party as a debt due to the other party by the first-mentioned party.
History
S 69A(4) inserted by No 175 of 1995, s 3, Sch 2.
SECTION 69B
COSTS IN CERTAIN SECURITY DIVISION REVIEWS
69B(1)
If:
(a)
a person makes an application under section 54 or 83B of the
Australian Security Intelligence Organisation Act 1979 to the Tribunal for a review of a security assessment, security clearance decision or security clearance suitability assessment in respect of the person; and
(b)
the applicant was, in the opinion of the Tribunal, successful, or substantially successful, in the application for review; and
(c)
the Tribunal is satisfied that it is appropriate to do so in all the circumstances of the case;
the Tribunal may order that the costs reasonably incurred by the applicant in connection with the application, or any part of those costs that is determined by the Tribunal, be paid by the Commonwealth.
History
S 69B(1) amended by No 33 of 2023, s 3 and Sch 1 item 43, by substituting para (a), effective 1 July 2023. Para (a) formerly read:
(a)
a person makes an application under section 54 of the Australian Security Intelligence Organisation Act 1979 to the Tribunal for a review of an adverse or qualified security assessment in respect of the person; and
S 69B(1) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[15].
69B(2)
For the purposes of section
69A, the Commonwealth is taken to be a party to the proceeding referred to in subsection
(1) of this section.
History
S 69B(2) inserted by No 175 of 1995, s 3, Sch 1.
SECTION 69BA
TERMINATION OF CERTAIN APPLICATIONS
69BA(1)
Sections
42A and
42B, except subsections
42A(4) and
(4A), apply in relation to an application described in paragraph (b), (c), (d), (e), (f) or (h) of the definition of
proceeding
in subsection
3(1) in the same way as those sections apply in relation to an application for a review of a decision.
History
S 69BA(1) amended by No 3 of 2022, s 3 and Sch 1 item 41, by substituting "subsections 42A(4) and (4A)" for "subsection 42A(4)", effective 18 February 2022.
69BA(2)
Subsection
42A(1) applies under subsection
(1) of this section as if it did not include the words "without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review".
69BA(3)
Subsections
42A(1B) and
(5) and paragraph
42A(2)(a) apply under subsection
(1) of this section as if they did not include the words "without proceeding to review the decision".
69BA(4)
Subsection
42A(2) applies under subsection
(1) of this section as if it did not include the words "(not being the person who made the decision)".
History
S 69BA inserted by No 60 of 2015, s 3 and Sch 1 item 155, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 69C
DISMISSAL OF APPLICATION FOR NON-PAYMENT OF APPLICATION FEE
69C(1)
The Tribunal may dismiss an application to the Tribunal if:
(a)
regulations under section
70 prescribe a fee to be payable in respect of the application; and
(b)
the fee has not been paid by the time worked out under regulations under section
70.
History
S 69C amended by No 60 of 2015, s 3 and Sch 1 item 156, by inserting "(1)" before "The", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
69C(2)
Subsection (1) does not apply to an application for review of a decision that is reviewable in the Migration and Refugee Division.
History
S 69C(2) inserted by No 60 of 2015, s 3 and Sch 1 item 157, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 69C inserted by No 186 of 2012, s 3 and Sch 5 item 2, applicable in relation to applications lodged on or after 11 June 2013.
SECTION 70
REGULATIONS
70(1)
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
70(2)
Without limiting the generality of sub-section (1)-
(a)
the regulations may make provision-
(i)
prescribing fees to be payable in respect of applications to the Tribunal; and
(ia)
prescribing fees to be payable in respect of the taxation of costs ordered by the Tribunal to be paid; and
(ii)
for or in relation to the refund, in whole or in part, of fees so paid where the proceeding terminates in a manner favourable to the applicant; and
(b)
regulations prescribing fees may-
(i)
prescribe fees in respect of a particular class or classes of applications only; and
(ii)
prescribe different fees in respect of different classes of applications.
History
S 70(2) inserted by No 58 of 1977, s 36; amended by No 175 of 1995, s 3, Sch 2.
70(3)
Without limiting the generality of subsection (1), the regulations may make provision:
(a)
prescribing fees to be payable in respect of proceedings before the Tribunal; and
(b)
for, or in relation to, the waiver (in whole or in part) of such fees.
History
S 70(3) inserted by No 186 of 2012, s 3 and Sch 5 item 3, applicable in relation to proceedings before the Tribunal: (a) that commence after 11 June 2013; or (b) that commenced, but were not completed, before 11 June 2013.
(Repealed) SCHEDULE 1
REVIEWABLE DECISIONS
(Omitted by No 111 of 1990, s 48 and Sch 3.)
SCHEDULE 2
Section 10B
OATH OR AFFIRMATION OF OFFICE
I, , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors according to law, that I will truly serve Her in the office of (insert name of office of member of Tribunal) and that I will faithfully and impartially perform the duties of that office. So Help Me God!
Or
I, , do solemnly and sincerely promise and declare that (as above, omitting the words "So Help Me God!").
History
Sch 2 inserted by No 26 of 1982, s 38.
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