Administrative Decisions (Judicial Review) Act 1977

SECTION 1  

1   SHORT TITLE  
This Act may be cited as the Administrative Decisions (Judicial Review) Act 1977.

SECTION 2  

2   COMMENCEMENT  
This Act shall come into operation on a date to be fixed by Proclamation.

SECTION 3   INTERPRETATION  

3(1)    

In this Act, unless the contrary intention appears:

ACT enactment
means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988;

Commonwealth authority
means an authority or other body (whether incorporated or not) that is established or continued in existence by or under an Act.

Court
(Repealed by No 194 of 1999)

decision to which this Act applies
means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a) under an enactment referred to in paragraph (a), (b), (c), (d) or (e) of the definition of enactment ; or

(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca), (cb) or (f) of the definition of enactment ;

other than:

(c) a decision by the Governor-General; or

(d) a decision included in any of the classes of decisions set out in Schedule 1.

Note:

Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act.

duty
includes a duty imposed on a person in his or her capacity as an officer or employee of the Crown.

enactment
means:

(a) an Act, other than:

(i) the Commonwealth Places (Application of Laws) Act 1970; or

(ii) the Northern Territory (Self-Government) Act 1978; or

(iii) an Act or part of an Act that is not an enactment because of section 3A (certain legislation relating to the ACT); or

(b) an Ordinance of a Territory other than the Australian Capital Territory or the Northern Territory; or

(c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance, other than any such instrument that is not an enactment because of section 3A; or

(ca) an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3; or

(cb) an instrument (including rules, regulations or by-laws) made under an Act or part of an Act covered by paragraph (ca); or

(d) any other law, or a part of a law, of the Northern Territory declared by the regulations, in accordance with section 19A, to be an enactment for the purposes of this Act; or

(e) a law continued in force in Norfolk Island by section 16 or 16A of the Norfolk Island Act 1979 (including such a law as amended in accordance with section 17 of that Act); or

(f) a law of a State or Territory applied in the Jervis Bay Territory or an external Territory;

and, for the purposes of paragraph (a), (b), (c), (ca), (cb), (e) or (f) includes a part of an enactment;

Note:

Regulations for the purposes of section 19B can amend Schedule 3 (see section 19B).

failure
, in relation to the making of a decision, includes a refusal to make the decision;

Family Court Judge
(Repealed by No 13 of 2021)

Federal Circuit and Family Court of Australia (Division 2) Rules
means the Rules of Court made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021.

Federal Circuit Court
(Repealed by No 13 of 2021)

Federal Circuit Court Rules
(Repealed by No 13 of 2021)

Federal Court Rules
means the Rules of Court made under the Federal Court of Australia Act 1976.

Federal Magistrates Rules
(Repealed by No 13 of 2013)

Finance Minister
means the Minister administering the Public Governance, Performance and Accountability Act 2013.

officer of the Commonwealth
has the same meaning as in paragraph 75(v) of the Constitution.

order of review
, in relation to a decision, in relation to conduct engaged in for the purpose of making a decision or in relation to a failure to make a decision, means an order on an application made under section 5, 6 or 7 in respect of the decision, conduct or failure.

Rules of Court
(Repealed by No 194 of 1999)

the Court or a Judge
(Repealed by No 194 of 1999)

the Family Court
(Repealed by No 13 of 2021)

the Federal Court
means the Federal Court of Australia.

3(2)    
In this Act, a reference to the making of a decision includes a reference to:

(a)    making, suspending, revoking or refusing to make an order, award 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;

and a reference to a failure to make a decision shall be construed accordingly.

3(3)    
Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.

3(4)    
In this Act:

(a)    a reference to a person aggrieved by a decision includes a reference:

(i) to a person whose interests are adversely affected by the decision; or

(ii) in the case of a decision by way of the making of a report or recommendation - to a person whose interests would be adversely affected if a decision were, or were not, made in accordance with the report or recommendation; and

(b)    a reference to a person aggrieved by conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision or by a failure to make a decision includes a reference to a person whose interests are or would be adversely affected by the conduct or failure.

3(5)    
A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.

3(6)    
A document or a statement that is required by this Act to be furnished to a person or a notice that is required by this Act to be given to a person may be posted to the person by a pre-paid letter:

(a)    where the person has furnished an address at which documents may be served - to that address; or

(b)    where no such address has been furnished:

(i) in the case of a person not being a company - to the address of his or her place of residence or business last known to the person posting the document, statement or notice; or

(ii) in the case of a company - to the address of the registered office of the company;

and, if a document, statement or notice is so posted, then, for the purposes of this Act, the document or statement shall be deemed to be furnished, or the notice shall be deemed to be given, as the case may be, at the time when the document, statement or notice is so posted.

3(7)    

A reference in a Schedule to this Act to another Act (including an Act of a State, the Australian Capital Territory or the Northern Territory) or a provision of another Act shall be read as including a reference to regulations or by-laws in force under that other Act or for the purposes of that provision, as the case may be.

3(7A)    

If an Act of a State, the Australian Capital Territory or the Northern Territory, or a part of such an Act, described in Schedule 3 applies all or part of another enactment or instrument as a law of the State or Territory, that other enactment or instrument, as so applying, is taken for the purposes of this Act to be included in the Act, or the part of the Act, of the State or Territory.

3(8)    
For the purposes of a Schedule to this Act:

(a)    a decision made, proposed to be made, or required to be made, as the case may be, by a person acting as the delegate of another person, or by a person otherwise lawfully authorized to act on behalf of another person, shall be deemed to be a decision by that other person; and

(b)    a decision made, proposed to be made, or required to be made, as the case may be, by a person for the time being acting in, or performing any of the duties of, an office or appointment shall be deemed to be a decision by the holder of that office or appointment.

3(8A)    

For the purposes of a Schedule to this Act, the question whether a body corporate is a subsidiary of another body corporate is to be determined in the same manner as that question is determined under the Corporations Act 2001.

3(9)    

In a Schedule to this Act:

Commonwealth authority
(Repealed by No 57 of 2000)

Service
includes the Australian Federal Police.

3(10)    

To avoid doubt, a reference in this Act (other than subsections 11(1), (2) and (3)) to an application made to the Federal Court includes, and is taken always to have included, a reference to an application that has come, or that came, before the Federal Court by way of:

(a)    a transfer from the Federal Circuit and Family Court of Australia (Division 2) by the Federal Court under section 32AC of the Federal Court of Australia Act 1976; or

(b)    a transfer by the Federal Circuit and Family Court of Australia (Division 2) to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021 that has been confirmed by the Federal Court under section 32AD of the Federal Court of Australia Act 1976.

3(11)    

To avoid doubt, a reference in this Act (other than subsections 11(1), (2) and (3)) to an application made to the Federal Circuit and Family Court of Australia (Division 2) includes, and is taken always to have included, a reference to an application that:

(a)    has come, or that came, before the Federal Circuit and Family Court of Australia (Division 2) by way of a transfer from the Federal Court under section 32AB of the Federal Court of Australia Act 1976; and

(b)    could have been made directly to the Federal Circuit and Family Court of Australia (Division 2).

3(12)    
(Repealed by No 13 of 2021)

SECTION 3A   CERTAIN LEGISLATION RELATING TO AUSTRALIAN CAPITAL TERRITORY NOT TO BE ENACTMENT  

3A(1)   [ACT enactments]  

ACT enactments are not enactments except to the extent that they are covered by paragraph (ca) or (cb) of the definition of enactment in subsection 3(1).

3A(2)   [Self-government and Googong Dam legislation]  

The Australian Capital Territory (Self-Government) Act 1988 and the Canberra Water Supply (Googong Dam) Act 1974 are not enactments.

3A(3)   [Land management legislation]  

Part IV, sections 29 and 30, subsection 63(2), section 66 and Division 5 of Part X of the Australian Capital Territory Planning and Land Management Act 1988 are not enactments.

3A(4)   [Instruments under Act or Ordinance]  

Where the whole of an Act or Ordinance is not an enactment, an instrument made under it is not an enactment.

3A(5)   [Part of Act or Ordinance]  

Where part of an Act or Ordinance is not an enactment, an instrument made under the Act or Ordinance, as the case may be, is not an enactment unless made for the purposes of the other part of the Act or Ordinance, as the case may be.

3B   (Repealed) SECTION 3B NORFOLK ISLAND  
(Repealed by No 154 of 2020)

SECTION 4  

4   ACT TO OPERATE NOTWITHSTANDING ANYTHING IN EXISTING LAWS  
This Act has effect notwithstanding anything contained in any law in force at the commencement of this Act.

SECTION 5   APPLICATIONS FOR REVIEW OF DECISIONS  

5(1)    

A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the decision on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)    that procedures that were required by law to be observed in connection with the making of the decision were not observed;

(c)    that the person who purported to make the decision did not have jurisdiction to make the decision;

(d)    that the decision was not authorized by the enactment in pursuance of which it was purported to be made;

(e)    that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)    that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g)    that the decision was induced or affected by fraud;

(h)    that there was no evidence or other material to justify the making of the decision;

(j)    that the decision was otherwise contrary to law.

5(2)    
The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)    any other exercise of a power in a way that constitutes abuse of the power.

5(3)    
The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

5(4)    
(Repealed by No 157 of 2001)

SECTION 6   APPLICATIONS FOR REVIEW OF CONDUCT RELATED TO MAKING OF DECISIONS  

6(1)    

Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the conduct on any one or more of the following grounds:

(a)    that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;

(b)    that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

(c)    that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;

(d)    that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;

(e)    that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;

(f)    that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;

(g)    that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;

(h)    that there is no evidence or other material to justify the making of the proposed decision;

(j)    that the making of the proposed decision would be otherwise contrary to law.

6(2)    
The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

(a)    taking an irrelevant consideration into account in the exercise of a power;

(b)    failing to take a relevant consideration into account in the exercise of a power;

(c)    an exercise of a power for a purpose other than a purpose for which the power is conferred;

(d)    an exercise of a discretionary power in bad faith;

(e)    an exercise of a personal discretionary power at the direction or behest of another person;

(f)    an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

(g)    an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;

(h)    an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(j)    any other exercise of a power in a way that constitutes abuse of the power.

6(3)    
The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who proposes to make the decision is required by law to reach that decision only if a particular matter is established, and there is no evidence or other material (including facts of which he or she is entitled to take notice) from which he or she can reasonably be satisfied that the matter is established; or

(b)    the person proposes to make the decision on the basis of the existence of a particular fact, and that fact does not exist.

6(4)    
(Repealed by No 157 of 2001)

SECTION 7   APPLICATIONS IN RESPECT OF FAILURES TO MAKE DECISIONS  

7(1)    

Where:

(a)    a person has a duty to make a decision to which this Act applies;

(b)    there is no law that prescribes a period within which the person is required to make that decision; and

(c)    the person has failed to make that decision;

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision on the ground that there has been unreasonable delay in making the decision.

7(2)    

Where:

(a)    a person has a duty to make a decision to which this Act applies;

(b)    a law prescribes a period within which the person is required to make that decision; and

(c)    the person failed to make that decision before the expiration of that period;

a person who is aggrieved by the failure of the first-mentioned person to make the decision within that period may apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review in respect of the failure to make the decision within that period on the ground that the first-mentioned person has a duty to make the decision notwithstanding the expiration of that period.

7(3)    
(Repealed by No 157 of 2001)

SECTION 8   JURISDICTION OF FEDERAL COURT AND FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)  

8(1)    
The Federal Court has jurisdiction to hear and determine applications made to the Federal Court under this Act.

8(2)    

The Federal Circuit and Family Court of Australia (Division 2) has jurisdiction to hear and determine applications made to the Court under this Act.

Note:

See also subsections 3(10) and (11).

SECTION 9   LIMITATION OF JURISDICTION OF STATE COURTS  

9(1)   [No jurisdiction to review]  

Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:

(a) a decision to which this section applies that is made after the commencement of this Act;

(b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;

(c) a failure to make a decision to which this section applies; or

(d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.

Note:

This subsection has effect subject to the Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.

9(2)   [Interpretation]  

In this section:

"decision to which this section applies"
means:

(a) a decision that is a decision to which this Act applies; or

(b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1;

"officer of the Commonwealth"
(Repealed by No 57 of 2000)

"review"
means review by way of:

(a) the grant of an injunction;

(b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(c) the making of a declaratory order.

9(3)    

(Repealed by No 57 of 2000)

9(4)   [Section not to affect]  

This section does not affect:

(a) (Repealed by No 44 of 1996)

(b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or

(c) the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act.

SECTION 9A   LIMITATION OF JURISDICTION TO REVIEW RELATED CRIMINAL JUSTICE PROCESS DECISIONS  

9A(1)   [Jurisdiction limited]  

Subject to subsection (2), at any time when:

(a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or

(b) an appeal arising out of such a prosecution is before any court;

no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision.

9A(2)   [Where application commenced]  

Subsection (1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

9A(3)   [Stay of proceedings]  

Where subsection (2) applies, the prosecutor may apply to the court for a permanent stay of proceedings in the hearing and determination of the application and the court may grant such a stay if the court determines that:

(a) the matters that are the subject of the application are more appropriately dealt with in the criminal justice process; and

(b) a stay of proceedings will not substantially prejudice the applicant.

9A(4)   [Definitions]  

In this section:

appeal
includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

related criminal justice process decision
, in relation to an offence, means:

(a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(i) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and

(ii) a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and

(iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and

(iv) a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and

(v) a decision in connection with an appeal arising out of the prosecution; or

(b) a decision of the Attorney-General to give a certificate under section 26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.

Note:

A decision to prosecute a person for an offence is not reviewable under this Act: see paragraph (xa) of Schedule 1.

SECTION 9B   LIMITATION OF JURISDICTION TO REVIEW RELATED CIVIL PROCEEDING DECISIONS  

9B(1)   [Limitation]  

At any time when a civil proceeding, or an appeal arising out of a civil proceeding, is taking place, no court has jurisdiction to hear, continue to hear or determine an application under this Act, by a person who is or was a party to the proceeding, in relation to a related civil proceeding decision.

9B(2)   [Interpretation]  

In this section:

appeal
includes a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge.

civil proceeding
has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004.

related civil proceeding decision
, in relation to a civil proceeding, means:

(a) a decision of the Attorney-General to give:

(i) notice under section 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 in relation to the proceeding; or

(ii) a certificate under section 38F or 38H of that Act in relation to the proceeding; or

(b) a decision of the Minister appointed by the Attorney-General under section 6A of that Act to give:

(i) notice under section 6A of that Act in relation to the proceeding; or

(ii) a certificate under section 38F or 38H of that Act in relation to the proceeding.

SECTION 10   RIGHTS CONFERRED BY THIS ACT TO BE ADDITIONAL TO OTHER RIGHTS  

10(1)    

The rights conferred by sections 5, 6 and 7 on a person to make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision:

(a)    

are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and

(b)    

shall be disregarded for the purposes of the application of subsection 6(3) of the Ombudsman Act 1976 and section 40TF of the Australian Federal Police Act 1979.

10(2)    
Notwithstanding subsection (1):

(a)    

the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under section 5, 6 or 7 in respect of that decision, conduct or failure; and

(b)    

the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason:

(i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

10(3)    
In this section, "review" includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.

SECTION 11   MANNER OF MAKING APPLICATIONS  

11(1)    

An application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order of review:

(a)    

shall be made in such manner as is prescribed by:

(i) in the case of an application to the Federal Court - Federal Court Rules; or

(ii) in the case of an application to the Federal Circuit and Family Court of Australia (Division 2) - Federal Circuit and Family Court of Australia (Division 2) Rules; and

(b)    shall set out the grounds of the application; and

(c)    

shall be lodged with a Registry of the court concerned and, in the case of an application in relation to a decision that has been made and the terms of which were recorded in writing and set out in a document that was furnished to the applicant, including such a decision that a person purported to make after the expiration of the period within which it was required to be made, shall be so lodged within the prescribed period or within such further time as the court concerned (whether before or after the expiration of the prescribed period) allows.

11(2)    

Any other application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Act must be made as prescribed by:

(a)    in the case of an application to the Federal Court - Federal Court Rules; or

(b)    

in the case of an application to the Federal Circuit and Family Court of Australia (Division 2) - Federal Circuit and Family Court of Australia (Division 2) Rules.

11(3)    
The prescribed period for the purposes of paragraph (1)(c) 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, refers to the evidence or other material on which those findings were based and gives the reasons for the decision - the day on which a document setting out the terms of the decision is furnished to the applicant; or

(b)    

in a case to which paragraph (a) does not apply:

(i) if a statement in writing setting out those findings, referring to that evidence or other material and giving those reasons is furnished to the applicant otherwise than in pursuance of a request under subsection 13(1) not later than the twenty-eighth day after the day on which a document setting out the terms of the decision is furnished to the applicant - the day on which the statement is so furnished;

(ii) if the applicant, in accordance with subsection 13(1), requests the person who made the decision to furnish a statement as mentioned in that subsection - the day on which the statement is furnished, the applicant is notified in accordance with subsection 13(3) of the opinion that the applicant was not entitled to make the request, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) makes an order under subsection 13(4A) declaring that the applicant was not entitled to make the request or the applicant is notified in accordance with subsection 13A(3) or 14(3) that the statement will not be furnished; or

(iii) in any other case - the day on which a document setting out the terms of the decision is furnished to the applicant.

11(4)    

Where:

(a)    no period is prescribed for the making of applications for orders of review in relation to a particular decision; or

(b)    no period is prescribed for the making of an application by a particular person for an order of review in relation to a particular decision;

the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may:

(c)    in a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to 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 an order of review in relation to the decision so referred to;

if the court is of the opinion that the application was not made within a reasonable time after the decision was made.

11(5)    

In forming an opinion for the purposes of subsection (4), the court 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 making by another person or other persons of an application or applications for an order or orders of review in relation to the decision;

and may have regard to such other matters as it considers relevant.

11(6)    

The applicant for an order of review is not limited to the grounds set out in the application but, if he or she wishes to rely on a ground not so set out, the court concerned may direct that the application be amended to specify that ground.

11(7)    

The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, on such terms as it thinks fit, permit a document lodged with a Registry of the court in connection with an application under this Act to be amended and may, if it thinks fit, direct such a document to be amended in a manner specified by the court.

11(8)    

The Federal Court Rules may make provision for and in relation to service on appropriate persons of copies of documents lodged with a Registry of the Federal Court under this Act.

11(8A)    

The Federal Circuit and Family Court of Australia (Division 2) Rules may make provision for and in relation to service on appropriate persons of copies of documents lodged with a Registry of the Federal Circuit and Family Court of Australia (Division 2) under this Act.

11(9)    

Strict compliance with Federal Court Rules or Federal Circuit and Family Court of Australia (Division 2) Rules made for the purposes of this section is not required and substantial compliance is sufficient.

SECTION 12   APPLICATION TO BE MADE A PARTY TO A PROCEEDING  

12(1)    

A person interested in a decision, in conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision, or in a failure to make a decision, being a decision, conduct or failure in relation to which an application has been made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Act, may apply to the court to be made a party to the application.

12(2)    

The court may, in its discretion:

(a)    grant the application either unconditionally or subject to such conditions as it thinks fit; or

(b)    refuse the application.

SECTION 13   REASONS FOR DECISION MAY BE OBTAINED  

13(1)    

Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him or her to furnish 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.

13(2)    
Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.

13(3)    
Where a person to whom a request is made under subsection (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request:

(a)    give to the second-mentioned person notice in writing of his or her opinion; or

(b)    

apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request.

13(4)    

Where a person gives a notice under subsection (3), or applies to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (4A), with respect to a request, the person is not required to comply with the request unless:

(a)    

the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), on an application under subsection (4A), declares that the person who made the request was entitled to make the request; or

(b)    

the person who gave the notice under subsection (3) has applied to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under subsection (4A) for an order declaring that the person who made the request was not entitled to make the request and the court refuses that application;

and, in either of those cases, the person who gave the notice shall prepare the statement to which the request relates and furnish it to the person who made the request within 28 days after the decision of the court.

13(4A)    

The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, on the application of:

(a)    a person to whom a request is made under subsection (1); or

(b)    a person who has received a notice under subsection (3);

make an order declaring that the person who made the request concerned was, or was not, entitled to make the request.

13(5)    
A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish 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 furnished to the person who made the request - the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; 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 person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him or her and giving the reason why the statement will not be so furnished.

13(6)    

For the purposes of paragraph (5)(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 Federal Court or the Federal Circuit and Family Court of Australia (Division 2), on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.

13(7)    

If the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), upon application for an order under this subsection made to it by a person to whom a statement has been furnished 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 court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is 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.

13(8)    
The regulations may declare a class or classes of decisions to be decisions that are not decisions to which this section applies.

13(9)    
Regulations made under subsection (8) may specify a class of decisions in any way, whether by reference to the nature or subject matter of the decisions, by reference to the enactment or provision of an enactment under which they are made, by reference to the holder of the office by whom they are made, or otherwise.

13(10)    
A regulation made under subsection (8) applies only in relation to decisions made after the regulation takes effect.

13(10A)    
(Repealed by No 157 of 2001)

13(11)    
In this section, decision to which this section applies means a decision that is a decision to which this Act applies, but does not include:

(a)    

a decision in relation to which section 268 of the Administrative Review Tribunal Act 2024 applies;

(b)    a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or

(c)    a decision included in any of the classes of decision set out in Schedule 2.

SECTION 13A   CERTAIN INFORMATION NOT REQUIRED TO BE DISCLOSED  

13A(1)    
This section applies in relation to any information to which a request made to a person under subsection 13(1) relates, being information that:

(a)    relates to the personal affairs or business affairs of a person, other than the person making the request; and

(b)    is information:

(i) that was supplied in confidence;

(ii) the publication of which would reveal a trade secret;

(iii) that was furnished in compliance with a duty imposed by an enactment; or

(iv) the furnishing of which in accordance with the request would be in contravention of an enactment, being an enactment that expressly imposes on the person to whom the request is made a duty not to divulge or communicate to any person, or to any person other than a person included in a prescribed class of persons, or except in prescribed circumstances, information of that kind.

13A(2)    
Where a person has been requested in accordance with subsection 13(1) to furnish a statement to a person:

(a)    the first-mentioned person is not required to include in the statement any information in relation to which this section applies; and

(b)    where the statement would be false or misleading if it did not include such information - the first-mentioned person is not required by section 13 to furnish the statement.

13A(3)    
Where, by reason of subsection (2), information is not included in a statement furnished by a person or a statement is not furnished by a person, the person shall give notice in writing to the person who requested the statement:

(a)    in a case where information is not included in a statement - stating that the information is not so included and giving the reason for not including the information; or

(b)    in a case where a statement is not furnished - stating that the statement will not be furnished and giving the reason for not furnishing the statement.

13A(4)    

Nothing in this section affects the power of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to make an order for the discovery of documents or to require the giving of evidence or the production of documents to the court.

SECTION 14   CERTIFICATION BY ATTORNEY-GENERAL CONCERNING THE DISCLOSURE OF INFORMATION  

14(1)    
If the Attorney-General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter 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 in a judicial proceeding that the information should not be disclosed;

the following provisions of this section have effect.

14(2)    
Where a person has been requested in accordance with section 13 to furnish a statement to a person:

(a)    the first-mentioned person is not required to include in the statement any information in respect of which the Attorney-General has certified in accordance with subsection (1) of this section; and

(b)    where the statement would be false or misleading if it did not include such information - the first-mentioned person is not required by that section to furnish the statement.

14(3)    
Where, by reason of subsection (2), information is not included in a statement furnished by a person or a statement is not furnished by a person, the person shall give notice in writing to the person who requested the statement:

(a)    in a case where information is not included in a statement - stating that the information is not so included and giving the reason for not including the information; or

(b)    in a case where a statement is not furnished - stating that the statement will not be furnished and giving the reason for not furnishing the statement.

14(4)    

Nothing in this section affects the power of the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) to make an order for the discovery of documents or to require the giving of evidence or the production of documents to the court.

SECTION 15   STAY OF PROCEEDINGS - FEDERAL COURT  

15(1)   [Effect of application for review]  

The making of an application to the Federal Court under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but:

(a) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of the decision; and

(b) the Court or a Judge may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the decision.

15(2)   [By motion of Court or on application]  

The Court or a Judge may make an order under subsection (1) of its or his or her own motion or on the application of the person who made the application under section 5.

15(3)   [Interpretation]  

In this section:

the Court or a Judge
has the same meaning as in the Federal Court of Australia Act 1976.

SECTION 15A   STAY OF PROCEEDINGS - FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)  

15A(1)    

The making of an application to the Federal Circuit and Family Court of Australia (Division 2) under section 5 in relation to a decision does not affect the operation of the decision or prevent the taking of action to implement the decision but:

(a)    

the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of the decision; and

(b)    

the Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the decision.

15A(2)    

The Federal Circuit and Family Court of Australia (Division 2) or a Judge of that Court may make an order under subsection (1) on its or his or her own initiative or on the application of the person who made the application under section 5.

15A(3)    
(Repealed by No 13 of 2021)

SECTION 16   POWERS OF THE FEDERAL COURT AND THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) IN RESPECT OF APPLICATIONS FOR ORDER OF REVIEW  

16(1)    

On an application for an order of review in respect of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make all or any of the following orders:

(a)    

an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

(b)    

an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

(c)    an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d)    

an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

16(2)    

On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make either or both of the following orders:

(a)    an order declaring the rights of the parties in respect of any matter to which the conduct relates;

(b)    

an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

16(3)    

On an application for an order of review in respect of a failure to make a decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may, in its discretion, make all or any of the following orders:

(a)    an order directing the making of the decision;

(b)    an order declaring the rights of the parties in relation to the making of the decision;

(c)    

an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

16(4)    

The Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.

SECTION 17  

17   CHANGE IN PERSON HOLDING, OR PERFORMING THE DUTIES OF, AN OFFICE  

Where:

(a)    

a person has, in the performance of the duties of an office, made a decision in respect of which an application may be made to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Act; and

(b)    the person no longer holds, or, for whatever reason, is not performing the duties of, that office;

this Act has effect as if the decision had been made by:

(c)    the person for the time being holding or performing the duties of that office; or

(d)    

if there is no person for the time being performing the duties of that office or that office no longer exists - the person specified:

(i) if the decision was made under an enactment referred to in paragraph (a), (b), (c), (d), (e) or (f)of the definition of enactment in subsection 3(1) - by the Minister administering that enactment, or by a person he or she authorises for the purpose; or

(ii) if the decision was made under an enactment referred to in paragraph (ca) or (cb) of that definition - by the Attorney-General, or by a person he or she authorises for the purpose.

SECTION 18   INTERVENTION BY ATTORNEY-GENERAL  

18(1)    

The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding before the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Act.

18(2)    

Where the Attorney-General intervenes in a proceeding in pursuance of this section, the court may, in the proceeding, make such order as to costs against the Commonwealth as the court thinks fit.

18(3)    
Where the Attorney-General intervenes in a proceeding in pursuance of this section, he or she shall be deemed to be a party to the proceeding.

SECTION 18A   TRANSFER OF PROCEEDINGS TO FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)  

18A(1)    

Subject to subsection (2), where a proceeding under this Act is pending in the Federal Court, the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Federal Circuit and Family Court of Australia (Division 1).

18A(2)    

A proceeding under this Act that is pending in the Federal Court at the commencement of this section shall not be transferred to the Federal Circuit and Family Court of Australia (Division 1) unless the parties to the proceeding consent to the transfer.

18A(3)    

Subject to subsection (4), where a proceeding under this Act is transferred to the Federal Circuit and Family Court of Australia (Division 1):

(a)    

the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine the proceeding;

(b)    

the Federal Circuit and Family Court of Australia (Division 1) also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether by virtue of paragraph (a) or otherwise):

(i) that are associated with matters arising in the proceeding; or

(ii) that, apart from subsection 32(1) of the Federal Court of Australia Act 1976, the Federal Court would have had jurisdiction to hear and determine in the proceeding;

(c)    

the Federal Circuit and Family Court of Australia (Division 1) may, in and in relation to the proceeding:

(i) grant such remedies;

(ii) make orders of such kinds; and

(iii) issue, and direct the issue of, writs of such kinds;

as the Federal Court could have granted, made, issued or directed the issue of, as the case may be, in and in relation to the proceeding;

(d)    

remedies, orders and writs granted, made or issued by the Federal Circuit and Family Court of Australia (Division 1) in and in relation to the proceeding have effect, and may be enforced by the Federal Circuit and Family Court of Australia (Division 1), as if they had been granted, made or issued by the Federal Court;

(e)    

appeals lie from judgments of the Federal Circuit and Family Court of Australia (Division 1) given in and in relation to the proceeding as if the judgments were judgments of the Federal Court constituted by a single Judge of that Court, and do not otherwise lie; and

(f)    

subject to paragraphs (a) to (e) (inclusive), this Act, the regulations, theFederal Court of Australia Act 1976, the Federal Court Rules, and other laws of the Commonwealth, apply in and in relation to the proceeding as if:

(i) a reference to the Federal Court (other than in the expression "the Court or a Judge") included a reference to the Federal Circuit and Family Court of Australia (Division 1);

(ii) a reference to a Judge of the Federal Court (other than in the expression "the Court or a Judge" included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1);

(iii) a reference to the expression "the Court or a Judge" when used in relation to the Federal Court included a reference to a Judge of the Federal Circuit and Family Court of Australia (Division 1) sitting in Chambers;

(iv) a reference to a Registrar of the Federal Court included a reference to a Registrar of the Federal Circuit and Family Court of Australia (Division 1); and

(v) any other necessary changes were made.

18A(4)    

Where any difficulty arises in the application of paragraphs (3)(c), (d) and (f) in or in relation to a particular proceeding, the Federal Circuit and Family Court of Australia (Division 1) may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.

18A(5)    

An appeal does not lie from a decision of the Federal Court in relation to the transfer of a proceeding under this Act to the Federal Circuit and Family Court of Australia (Division 1).

SECTION 19   ACT NOT TO APPLY IN RELATION TO CERTAIN DECISIONS  

19(1)    

The regulations may declare a class or classes of decisions to be decisions that are not subject to judicial review by the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) under this Act.

19(2)    
If a regulation is so made in relation to a class of decisions:

(a)    section 5 does not apply in relation to a decision included in that class;

(b)    section 6 does not apply in relation to conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision included in that class; and

(c)    section 7 does not apply in relation to a failure to make a decision included in that class;

but the making of the regulation does not affect the exclusion by section 9 of the jurisdiction of the courts of the States in relation to such a decision, such conduct or such a failure.

19(3)    
Regulations made for the purposes of subsection (1) may specify a class of decisions in any way, whether by reference to the nature or subject-matter of the decisions, by reference to the enactment or provision of an enactment under which they are made, by reference to the holder of the office by whom they are made, or otherwise.

19(4)    
A regulation made in pursuance of subsection (1) applies only in relation to decisions made after the regulation takes effect.

SECTION 19A   ACT TO APPLY IN RELATION TO CERTAIN NORTHERN TERRITORY LAWS  

19A(1)   [Northern Territory law an enactment]  

The regulations may declare a law, or a part of a law, of the Northern Territory, other than a law, or a part of a law, relating to matters in respect of which the Ministers of the Northern Territory have executive authority under the Northern Territory (Self-Government) Act 1978, to be an enactment for the purposes of this Act.

Note:

Because of paragraphs (ca) and (cb) of the definition of enactment in subsection 3(1), certain laws of the Northern Territory are enactments without the need for a declaration under this subsection.

19A(2)   [Regulations may override Northern Territory law]  

Regulations made for the purposes of this section have effect notwithstanding anything contained in the law of the Northern Territory concerned or in any other law of the Northern Territory.

SECTION 19B  

19B   REGULATIONS MAY AMEND SCHEDULE 3  

The regulations may amend Schedule 3 to include, omit or alter a description of:

(a) an Act of a State, the Australian Capital Territory or the Northern Territory, or a class of such Acts; or

(b) a part of such an Act or a class of parts of such Acts.

Note:

Schedule 3 identifies Acts of the States, the Australian Capital Territory and the Northern Territory, and parts of such Acts, that are enactments for the purposes of this Act.

SECTION 20  

20   REGULATIONS  
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed by regulations or necessary or convenient to be prescribed by regulations for carrying out or giving effect to this Act.

SCHEDULE 1  

Section 3

CLASSES OF DECISIONS THAT ARE NOT DECISIONS TO WHICH THIS ACT APPLIES

(a) decisions under the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the Workplace Relations Act 1996, the Building and Construction Industry Improvement Act 2005 or the Fair Work (Building Industry) Act 2012;

(b) the following decisions under the Australian Charities and Not-for-profits Commission Act 2012:

(i) administrative decisions (within the meaning of that Act);

(ii) objection decisions (within the meaning of that Act);

(iii) extension of time refusal decisions (within the meaning of that Act);

(c) decisions under the Coal Industry Act 1946, other than decisions of the Joint Coal Board;

(d) decisions under any of the following Acts:

  Australian Security Intelligence Organisation Act 1956

  Intelligence Services Act 2001

  Australian Security Intelligence Organisation Act 1979

  Inspector-General of Intelligence and Security Act 1986

  Telecommunications (Interception and Access) Act 1979

  Telephonic Communications (Interception) Act 1960;

(daa) decisions of the Minister administering the Australian Security Intelligence Organisation Act 1979 under section 58A of the Telecommunications Act 1997;

(daaa) decisions of the Minister administering the Australian Security Intelligence Organisation Act 1979 under clause 57A or 72A of Schedule 3A to the Telecommunications Act 1997;

(daaaa) decisions under Part 15 of the Telecommunications Act 1997;

(dab) decisions of the Minister administering the Australian Federal Police Act 1979 under section 104.2 of the Criminal Code;

(daba) decisions of senior AFP members in relation to consent for the purposes of applications to vary control orders under section 104.22 of the Criminal Code;

(dac) decisions under Division 105 of the Criminal Code;

(dad) decisions of the AFP Minister under Division 105A of the Criminal Code;

(dada) decisions of the Immigration Minister under Division 395 of the Criminal Code;

(dae) decisions under Part 3A of the Security of Critical Infrastructure Act 2018;

(da) a privative clause decision within the meaning of subsection 474(2) of the Migration Act 1958;

(db) a purported privative clause decision within the meaning of section 5E of the Migration Act 1958;

(dc) decisions under section 22A or 24A of the Australian Passports Act 2005;

(dd) decisions under section 15A or 16A of the Foreign Passports (Law Enforcement and Security) Act 2005;

(e) decisions making, or forming part of the process of making, or leading up to the making of, assessments or calculations of tax, charge or duty, or decisions disallowing objections to assessments or calculations of tax, charge or duty, or decisions amending, or refusing to amend, assessments or calculations of tax, charge or duty, under any of the following Acts:

  A New Tax System (Goods and Services Tax) Act 1999

  A New Tax System (Luxury Car Tax) Act 1999

  A New Tax System (Wine Equalisation Tax) Act 1999

  Customs Act 1901

  Customs Tariff Act 1995

  Excise Act 1901

  Fringe Benefits Tax Assessment Act 1986

  Fuel Tax Act 2006

  Income Tax Assessment Act 1936

  Income Tax Assessment Act 1997

  Petroleum Resource Rent Tax Assessment Act 1987

  Superannuation Guarantee (Administration) Act 1992

  Taxation Administration Act 1953, but only so far as the decisions are made under Part 2-35, 3-10, 3-30 or 4-1 in Schedule 1 to that Act

  Training Guarantee (Administration) Act 1990

  Trust Recoupment Tax Assessment Act 1985;

(ea) (Repealed by No 79 of 2010)

(f) decisions under Chapter 2D of the Social Security Act 1991;

(g) (Repealed by No 88 of 2009)

(ga) decisions under section 14ZY of the Taxation Administration Act 1953 disallowing objections to assessments or calculations of tax, charge or duty;

(gaa) decisions of the Commissioner of Taxation under Subdivision 268-B or section 268-35 in Schedule 1 to the Taxation Administration Act 1953;

Note:

Subdivision 268-B and section 268-35 empower the Commissioner to make, reduce and revoke estimates of certain liabilities.

(gaaa) decisions of the Treasurer under section 12-439 in Schedule 1 to the Taxation Administration Act 1953;

Note:

Section 12-439 in that Schedule empowers the Treasurer to approve economic infrastructure facilities.

(gab) decisions of the Commissioner of Taxation under Subdivision 136-A in Schedule 1 to the Taxation Administration Act 1953;

(gac) decisions of the Commissioner of Taxation under Subdivision 265-C in Schedule 1 to the Taxation Administration Act 1953 that are referred to in section 265-110 in that Schedule;

(gad) decisions of the Commissioner of Taxation under Division 384 in Schedule 1 to the Taxation Administration Act 1953 that are referred to in section 384-40 in that Schedule;

(gae) decisions of the Commissioner of Taxation under section 19AB of the Superannuation Guarantee (Administration) Act 1992;

(gb) decisions making, or forming part of the process of making, or leading up to the making of, assessments under Division 2 of Part 5 of the Renewable Energy (Electricity) Act 2000 or decisions disallowing objections to such assessments or decisions amending or refusing to amend such assessments;

(h) decisions under the Foreign Acquisitions and Takeovers Act 1975;

(ha) decisions of the Minister under Division 1 of Part 7.4 of the Corporations Act 2001;

(hb) decisions of the SEGC under Part 7.5 of the Corporations Act 2001;

(hba) decisions making, or forming part of the process of making, or leading up to the making of, determinations under the AFCA scheme (within the meaning of the Corporations Act 2001);

(hc) decisions under Division 3 of Part VC of the Insurance Act 1973, except so far as they relate to either of the following matters:

(i) whether persons are covered by determinations under section 62ZZ of that Act;

(ii) determinations under subsection 62ZZJ(2) of that Act;

(hd) decisions under Subdivision C of Division 2AA of Part II of the Banking Act 1959, except so far as they relate to whether account-holders have protected accounts with ADIs;

(he) decisions under Part 2 of the Financial Framework (Supplementary Powers) Act 1997;

(hea) (Repealed by No 62 of 2014)

(hf) decisions under the following provisions of the Public Governance, Performance and Accountability Act 2013:

(i) section 15;

(ii) section 23;

(iii) section 85;

(j) decisions, or decisions included in a class of decisions, under the Banking (Foreign Exchange) Regulations in respect of which the Treasurer has certified, by instrument in writing, that the decision or any decision included in the class, as the case may be, is a decision giving effect to the foreign investment policy of the Commonwealth Government;

(k) (Omitted by No 76 of 1986)

(l) decisions of the National Workplace Relations Consultative Council;

(m) (Omitted by No 57 of 2000)

(n) (Omitted by No 57 of 2000)

(o) decisions under the Defence Force Discipline Act 1982;

(p) decisions under section 42 of the Customs Act 1901 to require and take securities in respect of duty that may be payable under the Customs Tariff (Anti-Dumping) Act 1975;

(pa) decisions under section 75D, 75F or 75H of the Maritime Powers Act 2013;

(q) decisions under subsection 25(1) or Part IIIA of the Commonwealth Electoral Act 1918;

(qa) decisions under section 176 or 248 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006;

(r) decisions under the Extradition Act 1988;

(s) determinations made by the Child Support Registrar under Part 6A of the Child Support (Assessment) Act 1989;

(t) decisions under an enactment of Qantas Airways Limited or a company that is a subsidiary of that company;

(u) decisions of Snowy Mountains Engineering Corporation Limited or a body corporate that is a subsidiary of that body corporate;

(v) decisions of CSL Limited or a company that is a subsidiary of that company;

(va) decisions of Telstra Corporation Limited or a company that is a subsidiary of that company;

(w) decisions under the Witness Protection Act 1994;

(wa) decisions under section 34B or 34D, or Division 2A of Part II, of the Australian Crime Commission Act 2002;

(x) decisions under subsection 60A(2B) of the Australian Federal Police Act 1979;

(xa) decisions to prosecute persons for any offence against a law of the Commonwealth, a State or a Territory;

Note:

An application under this Act in relation to other criminal justice process decisions cannot be heard or determined in certain circumstances: see section 9A.

(xb) decisions of the Attorney-General under Part II or III of the Transfer of Prisoners Act 1983 refusing applications or requests, or refusing to give consent, on the ground that, or on grounds that include the ground that, refusal is necessary in the interests of security (within the meaning of that Act);

(xc) decisions of the Attorney-General under Part IV of the Transfer of Prisoners Act 1983;

(y) decisions of the Administrative Review Tribunal made on a review that is required by subsection 134(1) of the Administrative Review Tribunal Act 2024 to be conducted by the Intelligence and Security jurisdictional area of the Tribunal, except for decisions made on a review of exempt security record decisions (within the meaning of the Administrative Review Tribunal Act 2024);

(yaa) (Repealed by No 39 of 2024)

(ya) decisions of a proceeds of crime authority or an approved examiner under Part 3-1 of the Proceeds of Crime Act 2002;

(yb) decisions of a proceeds of crime authority to apply for an order under the Proceeds of Crime Act 2002;

(yc) decisions of a proceeds of crime authority to transfer to another proceeds of crime authority responsibility for an application for a principal order, or a principal order, under section 315B of the Proceeds of Crime Act 2002;

(za) decisions under Part VIIIB of the Judiciary Act 1903 (which relates to the Australian Government Solicitor);

(zb) decisions of Snowy Hydro Limited or a body corporate that is a subsidiary of Snowy Hydro Limited;

(zc) (Repealed by No 29 of 2012)

(zd) (Repealed by No 13 of 2021)

(ze) the following decisions under the Federal Court of Australia Act 1976:

(i) decisions of the Chief Justice in the exercise of the functions or powers mentioned in subsection 15(1AA) of that Act;

(ii) decisions of the Chief Justice or the Attorney General whether to consent as mentioned in paragraph 6(3)(a) of that Act;

(zf) the following decisions under the Federal Circuit and Family Court of Australia Act 2021:

(i) decisions of the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) or the Minister whether to consent as mentioned in paragraph 12(1)(a) of that Act;

(ii) decisions of the Chief Justice or Deputy Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) in the exercise of, or in assisting in the exercise of, the functions or powers mentioned in subsection 47(2) of that Act;

(iii) decisions of the Chief Judge or a Deputy Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) in the exercise of, or in assisting in the exercise of, the functions or powers mentioned in subsection 144(2) of that Act;

(iv) decisions of the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) in the exercise of the functions or powers mentioned in subsection 147(1) of that Act.

(zfa) decisions under Part 2 of the National Emergency Declaration Act 2020 in relation to a declaration made under subsection 11(1) of that Act;

(zg) decisions under the National Redress Scheme for Institutional Child Sexual Abuse Act 2018;

(zh) decisions under the Australia's Foreign Relations (State and Territory Arrangements) Act 2020;

(zi) decisions under the following provisions of the National Anti-Corruption Commission Act 2022:

(i) provisions in Part 6 (including that Part as applied by section 211 of that Act);

(ii) provisions in Part 7 (including that Part as applied by sections 163 and 214 of that Act);

(iii) sections 161, 162, 209, 210 and 213.

SCHEDULE 2  

Section 13

CLASSES OF DECISIONS THAT ARE NOT DECISIONS TO WHICH SECTION 13 APPLIES

(a) decisions in connection with, or made in the course of, redress of grievances, or redress of wrongs, with respect to members of the Defence Force;

(b) decisions in connection with personnel management (including recruitment, training, promotion and organization) with respect to the Defence Force, including decisions relating to particular persons;

(c) decisions under any of the following Acts:

 

Consular Privileges and Immunities Act 1972

 

Diplomatic Privileges and Immunities Act 1967

 

International Organisations (Privileges and Immunities) Act 1963

(d) decisions under the Migration Act 1958, being:

(i) decisions under section 11Q, other than:

(A) a decision relating to a person who, at the time of the decision, was, within the meaning of that Act, the holder of a valid visa; or

(B) a decision relating to a person who, having entered Australia within the meaning of that Act, was in Australia at the time of the decision;

(ii) decisions in connection with the issue or cancellation of visas;

(iii) decisions whether a person is a person referred to in paragraph (b) of the definition of "exempt non-citizen" in subsection 5(1) of that Act; or

(iv) decisions relating to a person who, having entered Australia as a diplomatic or consular representative of another country, a member of the staff of such a representative or the spouse, de facto partner or a dependent relative of such a representative, was in Australia at the time of the decision (for the purposes of this subparagraph, enter Australia, spouse, de facto partner and relative have the same meanings as in that Act);

(da) decisions of the Attorney-General to give:

(i) notice under section 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004; or

(ii) a certificate under section 26, 28, 38F or 38H of that Act;

(db) decisions of the Minister appointed by the Attorney-General under section 6A of the National Security Information (Criminal and Civil Proceedings) Act 2004 to give:

(i) notice under section 6A of that Act; or

(ii) a certificate under section 38F or 38H of that Act;

(dc) decisions under subsection 8(4) or 9(4) of the Parliamentary Joint Committee on Law Enforcement Act 2010;

(e) decisions relating to the administration of criminal justice, and, in particular:

(i) decisions in connection with the investigation, committal for trial or prosecution of persons for any offences against a law of the Commonwealth or of a Territory;

(ii) decisions in connection with the appointment of investigators or inspectors for the purposes of such investigations;

(iii) decisions in connection with the issue of warrants, including search warrants and seizure warrants, under a law of the Commonwealth or of a Territory;

(iv) decisions under a law of the Commonwealth or of a Territory requiring the production of documents, the giving of information or the summoning of persons as witnesses;

(v) decisions in connection with an appeal (including an application for a new trial or a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge) arising out of the prosecution of persons for any offences against a law of the Commonwealth or of a Territory;

(eaa) (Repealed by No 89 of 2022)

(ea) decisions under the Australian Crime Commission Act 2002 being:

(i) decisions in connection with intelligence operations; or

(ii) decisions in connection with investigations of State offences that have a federal aspect;

(f) decisions in connection with the institution or conduct of proceedings in a civil court, including decisions that relate to, or may result in, the bringing of such proceedings for the recovery of pecuniary penalties arising from contraventions of enactments, and, in particular:

(i) decisions in connection with the investigation of persons for such contraventions;

(ii) decisions in connection with the appointment of investigators or inspectors for the purposes of such investigations;

(iii) decisions in connection with the issue of search warrants or seizure warrants issued under Division 1 ofPart XII of the Customs Act 1901 under enactments; and

(iv) decisions under enactments requiring the production of documents, the giving of information or the summoning of persons as witnesses;

(g) decisions of the Finance Minister to issue sums out of the Consolidated Revenue Fund under an Act to appropriate moneys out of that Fund for the service of, or for expenditure in respect of, any year;

(h) decisions under section 51 of the Public Governance, Performance and Accountability Act 2013;

(i) decisions of the Commonwealth Grants Commission relating to the allocation of funds;

(j) decisions of any of the following Tribunals:

 

Academic Salaries Tribunal

 

Defence Force Remuneration Tribunal

 

Federal Police Arbitral Tribunal

 

Remuneration Tribunal;

(k) decisions of any of the following authorities in respect of their commercial activities:

 

Canberra Commercial Development Authority

 

Christmas Island Phosphate Commission

 

Indigenous Business Australia;

(l) decisions of the Reserve Bank in connection with its banking operations (including individual open market operations and foreign exchange dealings);

(m) decisions in connection with the enforcement of judgments or orders for the recovery of moneys by the Commonwealth or by an officer of the Commonwealth;

(n) (Omitted by No 144 of 1983);

(o) decisions of the National Director of the Commonwealth Employment Service made on behalf of that Service to refer, or not to refer, particular clients to particular employers;

(p) decisions under the Civil Aviation Act 1988 that:

(i) relate to aircraft design, the construction or maintenance of aircraft or the safe operation of aircraft or otherwise relate to aviation safety; and

(ii) arise out of findings on material questions of fact based on evidence, or other material:

(A) that was supplied in confidence; or

(B) the publication of which would reveal information that is a trade secret;

(q) decisions in connection with personnel management (including recruitment, training, promotion and organization) with respect to the Australian Public Service or any other Service established by an enactment or the staff of a Commonwealth authority, other than a decision relating to, and having regard to the particular characteristics of, or other circumstances relating to, a particular person;

(r) decisions relating to assignment of duties, voluntary moves between Agencies, compulsory moves between Agencies, promotions or decisions of Promotion Review Committees, of or by individual APS employees;

(s) (Repealed by No 146 of 1999)

(t) decisions relating to:

(i) the making of appointments in the Australian Public Service or any other Service established by an enactment or to the staff of a Commonwealth authority;

(ii) the engagement of persons as employees under the Public Service Act 1999 or under any other enactment that establishes a Service or by a Commonwealth authority; or

(iii) the making of appointments under an enactment or to an office established by, or under, an enactment;

(u) decisions in connection with industrial matters, in respect of the Australian Public Service or any other Service established by an enactment or the staff of a Commonwealth authority;

(w) decisions relating to the making or terminating of appointments of Secretaries under the Public Service Act 1999;

(y) decisions relating to:

(i) employing, or terminating the employment of, persons; or

(ii) suspending persons from duties;

 

under the Members of Parliament (Staff) Act 1984;

(z) decisions under section 28, 40F or 40H of the Australian Federal Police Act 1979;

(za) (Repealed by No 9 of 2000)

(zb) decisions relating to the activities of the Export Finance and Insurance Corporation under Part 4 or 5 of the Export Finance and Insurance Corporation Act 1991;

(zc) decisions of the Minister for Foreign Affairs under Part 8B of the Broadcasting Services Act 1992 (for this purpose, Minister for Foreign Affairs has the same meaning as in that Act);

(zd) decisions relating to the activities of Housing Australia under the Housing Australia Act 2018.

SCHEDULE 3  

STATE, ACT AND NT ACTS, AND PARTS OF SUCH ACTS, THAT ARE ENACTMENTS FOR THE PURPOSES OF THIS ACT

Note:

See paragraphs (ca) and (cb) of the definition of enactment in subsection 3(1).

1  

1   WHAT THIS SCHEDULE DOES  
This Schedule describes Acts of the States, the Australian Capital Territory and the Northern Territory, and parts of such Acts, that are enactments for the purposes of this Act.

Note:

This Schedule can be amended by the regulations (see section 19B).

2  

2  STATE, ACT AND NT ACTS, AND PARTS OF SUCH ACTS, THAT ARE ENACTMENTS  
The following are enactments for the purposes of this Act:

(a) an Act of a State, the Australian Capital Territory or the Northern Territory that applies, as a law of the State or Territory, the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth;

(b) (Repealed by No 7 of 2006)

(c) (Repealed by No 55 of 2001)

(d) the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia as in force from time to time, as that Law applies as a law of South Australia;

(daa) if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Gas Law set out in the Schedule to the National Gas (South Australia) Act 2008 of South Australia, as in force from time to time, as a law of that other State or of that Territory - the National Gas Law as so applied;

(dab) the National Gas Access (Western Australia) Law (within the meaning of the National Gas Access (WA) Act 2009 of Western Australia) as in force from time to time, as that Law applies as a law of Western Australia;

(da) the National Electricity (South Australia) Act 1996 of South Australia, or an Act of another State or of the Australian Capital Territory or the Northern Territory that applies the Schedule to that South Australian Act as a law of that other State or of that Territory;

(dba) the Electricity Networks (Third Party Access) Act of the Northern Territory;

(dbb) the Electricity Reform Act of the Northern Territory;

(dbc) the Utilities Commission Act of the Northern Territory;

(db) the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, as that Law applies as a law of South Australia;

(dc) if an Act of another State or of the Australian Capital Territory or the Northern Territory applies the National Energy Retail Law set out in the Schedule to the National Energy Retail Law (South Australia) Act 2011 of South Australia, as amended from time to time, as that Law applies as a law of that other State or of that Territory - the National Energy Retail Law as so applied;

(e) an Act of a State, the Australian Capital Territory or the Northern Territory that applies, as a law of the State or Territory, the text set out in Part 1 of Schedule 1 to the Competition and Consumer Act 2010 of the Commonwealth (which forms part of what is commonly known as the Competition Code);

(f) (Repealed by No 5 of 2011)

(fa) an Act of a State, the Australian Capital Territory or the Northern Territory that applies Schedule 2 to the Competition and Consumer Act 2010 as a law of the State or Territory;

(g) the Petroleum (Submerged Lands) Act 1982 of Victoria;

(h) the Petroleum (Submerged Lands) Act 1982 of Queensland;

(ha) the Petroleum (Submerged Lands) Act 1982 of Western Australia;

(i) the Petroleum (Submerged Lands) Act 1982 of Tasmania;

(j) the Petroleum (Submerged Lands) Act of the Northern Territory.