Administrative Review Tribunal Act 2024

PART 1 - PRELIMINARY  

SECTION 1  

1   SHORT TITLE  
This Act is the Administrative Review Tribunal Act 2024.

SECTION 2   COMMENCEMENT  

2(1)    
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provisions	Commencement	Date/Details
1. The whole of this Act	A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the first day of the first calendar month to start after the end of that period.	14 October 2024 (F2024N00804)

Note:

This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

2(2)    
Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

SECTION 3  

3   SIMPLIFIED OUTLINE OF THIS ACT  

SECTION 4  

4   DEFINITIONS  

In this Act:

accessible
, in relation to the Tribunal, means enables persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal.

Note:

Examples of areas where arrangements may be made in relation to accessibility include the following:

(a) premises, facilities and technology;

(b) ease of locating and understanding information about the Tribunal and documents relating to proceedings;

(c) adjustments that can reasonably be made to accommodate a person's needs, such as interpreter services for hearings.

adduce
, in relation to evidence, includes give.

administrative affairs
, in relation to the Tribunal, has a meaning affected by subsection 224(2).

AFP Commissioner
means the Commissioner of Police (within the meaning of the Australian Federal Police Act 1979).

agency head
:

(a) in relation to a criminal intelligence assessment, means the Chief Executive Officer of the Australian Crime Commission; or

(b) in relation to an exempt security record decision that is a decision of a kind mentioned in subsection 57A(1) of the Freedom of Information Act 1982 in respect of an exempt document (within the meaning of that Act), means the principal officer of the agency, or the Minister, to whom the request for access to the document concerned was made; or

(c) in relation to an exempt security record decision that is a decision of the National Archives of Australia, means the Director-General of the National Archives of Australia; or

(d) in relation to a foreign acquisitions and takeovers decision, means the Treasurer; or

(e) (Repealed by No 39 of 2024)

(f) in relation to a security assessment, means the Director-General of Security; or

(g) in relation to a security clearance decision, means the Director-General of Security; or

(h) in relation to a security clearance suitability assessment, means the Director-General of Security.

agency within the national intelligence community
has the same meaning as in the Office of National Intelligence Act 2018.

appear
, in relation to a Tribunal case event, has a meaning affected by section 73.

appointed member
means a member of the Council mentioned in paragraph 247(1)(d).

ART social services decision
: see subsection 131D(3).

ASIO
means the Australian Security Intelligence Organisation.

ASIO Act
means the Australian Security Intelligence Organisation Act 1979.

ASIO Minister
means the Minister administering the ASIO Act.

authorised person
, in relation to the performance or exercise of a function or power of the Tribunal, means a person authorised under Subdivision B of Division 4 of Part 11 to perform or exercise the function or power.

code of conduct
means the code of conduct determined under section 201.

Commonwealth entity
has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

corporate and registry services
, of the Tribunal: see subsection 226(2).

Council
means the Administrative Review Council.

Council member
means any member of the Council including the Chair of the Council.

criminal intelligence assessment
means an adverse criminal intelligence assessment within the meaning of Division 2A of Part II of the Australian Crime Commission Act 2002.

decision
includes the following:

(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;

(g) doing or refusing to do any other act or thing.

decision-maker
: see section 14.

Deputy President
means a Judicial Deputy President or a Non-Judicial Deputy President.

dispute resolution process
means a procedure or service for the voluntary resolution of disputes, and includes:

(a) conferencing; and

(b) mediation; and

(c) neutral evaluation; and

(d) conciliation; and

(e) a procedure or service specified in the practice directions;

but does not include:

(f) arbitration; or

(g) court procedures or services.

election notice
: see subsection 60(1).

eligible social services decision
: see section 131C.

engage in conduct
means:

(a) do an act; or

(b) omit to perform an act.

entrusted person
means a person who is or has been:

(a) a member; or

(b) the Principal Registrar; or

(c) a staff member; or

(d) a person engaged to provide services to the Tribunal.

exempt security record decision
means:

(a) a decision of a kind mentioned in subsection 57A(1) of the Freedom of Information Act 1982 in respect of a document that is an exempt document (within the meaning of that Act) because of section 33 of that Act; or

(b) a decision of the National Archives of Australia in respect of access to:

(i) a record claimed to be an exempt record under the Archives Act 1983 because it contains information or matter of a kind mentioned in paragraph 33(1)(a) or (b) of that Act; or

(ii) a record of ASIO.

Federal Court
means the Federal Court of Australia.

foreign acquisitions and takeovers decision
means a decision under section 79A of the Foreign Acquisitions and Takeovers Act 1975 that a national security risk exists in relation to an action.

general member
means a person appointed as a general member under section 208.

guidance and appeals panel
: the Tribunal is constituted for the purposes of a proceeding by the guidance and appeals panel if the Tribunal is constituted for the purposes of the proceeding in accordance with Subdivision C of Division 4 of Part 4.

guidance and appeals panel application
means an application taken to be made under subsection 130(2).

guidance and appeals panel proceeding
: a proceeding in the Tribunal in relation to an application is a guidance and appeals panel proceeding if:

(a) the application is a guidance and appeals panel application; or

(b) the President refers the application to the guidance and appeals panel.

hearing of a proceeding
: the hearing of a proceeding in the Tribunal does not include a directions hearing in relation to the proceeding.

intelligence and security decision
means:

(a) a criminal intelligence assessment; or

(b) an exempt security record decision; or

(c) a foreign acquisitions and takeovers decision; or

(d) (Repealed by No 39 of 2024)

(e) a security assessment; or

(f) a security clearance decision; or

(g) a security clearance suitability assessment.

Judge
means a Judge of a court created by the Parliament.

Judicial Deputy President
means a person appointed as a Judicial Deputy President under section 206.

jurisdictional area
means a jurisdictional area of the Tribunal established by subsection 196(1).

jurisdictional area leader
:

(a) in relation to a jurisdictional area - means a person assigned under subsection 197(1) to be a leader of the jurisdictional area; and

(b) in relation to a list - means the jurisdictional area leader of the jurisdictional area within which the list is established.

law enforcement interests
has the same meaning as in Division 2A of Part II of the Australian Crime Commission Act 2002.

legal practitioner
means a barrister, a solicitor, a barrister and solicitor or a legal practitioner of the High Court or of the Supreme Court of a State or Territory.

list
means a list established within a jurisdictional area by the President under subsection 196(2).

litigation supporter
, in relation to a party to a proceeding, means a person appointed to be a litigation supporter for the party under section 67.

made under an Act
: an instrument is made under an Act if it is made under a provision of an Act or made under a provision of an instrument that is made under an Act.

member
means any of the following members of the Tribunal:

(a) the President;

(b) a Deputy President;

(c) a senior member;

(d) a general member.

merit-based
: an assessment process for an appointment to an office is merit-based only if:

(a) an assessment is made of the comparative suitability of the candidates for the duties of the office, using a competitive selection process; and

(b) the assessment is based on the relationship between the candidates' skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office; and

(c) the assessment takes into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.

national security information
has the same meaning as in the National Security Information (Criminal and Civil Proceedings) Act 2004.

Non-Judicial Deputy President
means a person appointed as a Non-Judicial Deputy President under section 207.

non-judicial member
means a member who is not a Judge.

non-participating party
: see section 61.

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.

official
has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

paid work
means work for financial gain or reward (whether as an employee, a self-employed person or otherwise), other than service in the Australian Defence Force.

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.

participation notice
: see section 62.

performance standard
means the performance standard determined under section 202.

person whose interests are affected by a decision
has a meaning affected by section 15.

practice directions
means practice directions made under section 36.

President
means the person appointed as the President under section 205.

presiding member
, in relation to a proceeding, means the member the President directs under subsection 37(2) is to preside for the purposes of the proceeding.

preventative detention decision
(Repealed by No 39 of 2024)

Principal Registrar
means the person appointed as the Chief Executive Officer and Principal Registrar under section 227.

proceeding
, in relation to the Tribunal, includes a proceeding in the Tribunal in relation to any of the following:

(a) an application for review of a reviewable decision;

(b) an application under subsection 270(2) (applying to Tribunal to obtain reasons for reviewable decision);

(c) an application under subsection 271(2) (applying to Tribunal to obtain adequate statement of reasons);

(d) any other application to the Tribunal under this Act, any other Act or any instrument made under an Act;

(e) any matter referred to the Tribunal for inquiry or review under this Act, any other Act or any instrument made under an Act;

(f) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, mentioned in a preceding paragraph.

produce
includes permit access to.

protected document
: see subsection 274(3).

protected information
: see subsection 274(4).

reconstitute the Tribunal
, in relation to a proceeding, means revoke the direction made under subsection 37(1) in relation to the proceeding and make another direction under that subsection in relation to the proceeding.

registrar
means a person appointed as a registrar under section 237.

relevant body
: see subsection 137(2).

responsible Minister
, in relation to an intelligence and security decision, means the Minister, or any of the Ministers, administering the provision under which the decision is made.

reviewable decision
: see section 12.

review pathway
: see subsection 266(3).

rules
means the rules made under section 295.

salaried member
means a member who is appointed on a salaried basis.

second review
: see subsection 131D(1).

security assessment
means:

(a) an adverse security assessment within the meaning of Part IV of the ASIO Act; or

(b) a qualified security assessment within the meaning of Part IV of the ASIO Act.

security clearance decision
has the same meaning as in the ASIO Act.

security clearance suitability assessment
has the same meaning as in the ASIO Act.

security vetting agency
has the same meaning as in Part IVA of the ASIO Act.

senior member
means a person appointed as a senior member under section 208.

serious misconduct
includes, but is not limited to, the following:

(a) conduct that constitutes unlawful discrimination (within the meaning of the Australian Human Rights Commission Act 1986);

(b) serious or repeated bullying or harassment of a person.

sessional member
means a member who is appointed on a sessional basis.

sponsoring agency
has the same meaning as in Part IVA of the ASIO Act.

staff member
means:

(a) a member of the staff of the Tribunal; or

(b) a person whose services are made available to the Tribunal under section 239.

statement of reasons
, for a decision, means a written statement in relation to the decision that:

(a) sets out the findings on material questions of fact; and

(b) refers to the evidence or other material on which the findings are based; and

(c) explains the reasons for the decision.

State or Territory government entity
means:

(a) a Department of a State or Territory; or

(b) a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.

Tribunal
means the Administrative Review Tribunal established by section 8.

Tribunal Advisory Committee
means the Tribunal Advisory Committee established by section 236.

Tribunal case event
, in relation to a proceeding in the Tribunal, means:

(a) the hearing, or part of the hearing, of the proceeding; or

(b) a directions hearing, or part of a directions hearing, in relation to the proceeding; or

(c) a dispute resolution process, or part of a dispute resolution process, under Subdivision C of Division 6 of Part 4 in relation to the proceeding.

Tribunal guidance decision
: see subsection 109(1).

SECTION 5   OTHER ACTS CAN CHANGE HOW SOME PROVISIONS IN THIS ACT APPLY  
General rules

5(1)    
The application of a provision of this Act is subject to a contrary intention in another Act.

Note:

For example, the Act under which a reviewable decision is made may contain provisions that apply to review of the decision in addition to, or instead of, provisions in this Act.

5(2)    
If an Act provides that an instrument made under that Act can contain provisions that apply:

(a)    in addition to; or

(b)    instead of; or

(c)    contrary to;

this Act, the application of a provision of this Act is subject to a contrary intention in the instrument.

Note:

Instruments may contain provisions that apply to review of a reviewable decision in addition to, or instead of, provisions in this Act if that is permitted by the Act under which the instrument is made.

Exceptions

5(3)    
However, subsections (1) and (2) do not apply in relation to:

(a)    Part 2 (establishment of Administrative Review Tribunal); or

(b)    Part 8 (members and staff of Tribunal); or

(c)    Part 9 (Administrative Review Council).

SECTION 6  

6   EXTENSION TO EXTERNAL TERRITORIES  
This Act extends to the external Territories.

PART 2 - ESTABLISHMENT OF ADMINISTRATIVE REVIEW TRIBUNAL  

Division 1 - Preliminary  

SECTION 7  

7   SIMPLIFIED OUTLINE OF THIS PART  

Division 2 - Establishment of Tribunal  

SECTION 8  

8   ESTABLISHMENT  
The Administrative Review Tribunal is established by this section.

SECTION 9  

9   OBJECTIVE  
The Tribunal must pursue the objective of providing an independent mechanism of review that:

(a)    is fair and just; and

(b)    ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and

(c)    is accessible and responsive to the diverse needs of parties to proceedings; and

(d)    improves the transparency and quality of government decision-making; and

(e)    promotes public trust and confidence in the Tribunal.

SECTION 10   MEMBERS OF TRIBUNAL  

10(1)    
The Tribunal consists of the following members:

(a)    the President;

(b)    Deputy Presidents;

(c)    senior members;

(d)    general members.

10(2)    
A Judge who is to be appointed as a member must be appointed as the President or as a Judicial Deputy President.

PART 3 - STARTING A REVIEW  

Division 1 - Preliminary  

SECTION 11  

11   SIMPLIFIED OUTLINE OF THIS PART  
 

Division 2 - Key concepts for review of decisions  

SECTION 12   REVIEWABLE DECISIONS  

12(1)    
A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.

Note:

To find out whether a decision is a reviewable decision, start by looking at the Act or legislative instrument under which the decision is made.

12(2)    
In addition, if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of a decision of a person under a power, a decision under the power is a reviewable decision , whether or not it is made by the person.

Note:

Under subsection (2), the decision is a reviewable decision even if made by a person who is not authorised to make the decision.

SECTION 13   INSTRUMENTS MAY PROVIDE FOR APPLICATION TO TRIBUNAL FOR REVIEW  

13(1)    
A legislative instrument may provide for an application to be made to the Tribunal for review of a decision made under the instrument.

13(2)    
Subsection (1) does not limit any other Act or instrument made under an Act.

SECTION 14   DECISION-MAKER  
General rule

14(1)    
The decision-maker for a decision is the person who makes the decision.

Note:

For when Tribunal decisions are taken to be made by the decision-maker, see subsection 108(2).

Exception - person ceases to hold office, appointment or position

14(2)    
Despite subsection (1), if:

(a)    a person makes a decision as the holder or occupier of an office, appointment or position; and

(b)    the person ceases to hold or occupy the office, appointment or position;

the decision-maker for the decision is:

(c)    the person who holds or occupies the office, appointment or position; or

(d)    if there is no person who holds or occupies the office, appointment or position - the person specified by the President.

Exception - any other circumstance

14(3)    
If subsections (1) and (2) do not apply in relation to a decision, the decision-maker for the decision is the person specified by the President.

Specifying a decision-maker

14(4)    
The President must not specify a person under paragraph (2)(d) or subsection (3) unless the President considers that the person is the person most able to satisfy the requirements imposed by this Act on decision-makers of reviewable decisions.

14(5)    
If the President specifies the person in writing, the specification is not a legislative instrument.

Extension - unincorporated decision-maker is treated as if it were a person

14(6)    
If a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an Act or an instrument made under an Act to make a decision, this Act applies as if that board, committee or other body were a person empowered to make the decision.

Clarification - decisions made by delegates

14(7)    
Subject to this Act, if an Act or an instrument made under an Act confers power on a person or body (the authority ) to delegate a function or power in relation to a decision, a function or power so delegated, when performed or exercised by the delegate, is, for the purposes of this Act, taken to have been performed or exercised by the authority.

SECTION 15  

15   ORGANISATION OR ASSOCIATION WHOSE INTERESTS ARE AFFECTED BY A DECISION  
An organisation or association of persons, whether incorporated or not, is taken to be a person whose interests are affected by a decision if:

(a)    the decision relates to a matter included in the objects or purposes of the organisation or association at the time the decision is made; and

(b)    the matter has not been removed from the objects or purposes of the organisation or association.

SECTION 16  

16   DECISION IS TAKEN TO BE MADE IF TIMEFRAME EXPIRES  
If:

(a)    a decision of a person not to do a thing is a reviewable decision; and

(b)    an Act or an instrument made under an Act provides for a quantified period within which the person is required or permitted to do the thing; and

(c)    the person does not do the thing within the period;

the person is taken, for the purposes of this Act and the Act or instrument that provides for an application to be made to the Tribunal for review of the decision, to have made a decision at the end of the period not to do the thing.

Note:

If there is no quantified period within which the person is required or permitted to do the thing, see section 10 of the Ombudsman Act 1976.

Division 3 - Applying for review of decision  

SECTION 17   WHO CAN APPLY  

17(1)    
A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision.

Note 1:

For which decisions are reviewable decisions, see section 12.

Note 2:

For when an organisation's or association's interests are taken to be affected, see section 15.

Note 3:

Section 173 provides a right of appeal to the Federal Court if the Tribunal decides that a person's interests are not affected by a reviewable decision.

17(2)    
To avoid doubt, a person may apply even if the person is the Commonwealth or an authority, tribunal or other body (whether incorporated or not) that is established by an Act or an instrument made under an Act.

SECTION 18   WHEN TO APPLY - GENERAL RULE  

18(1)    
An application to the Tribunal for review of a decision must be made within the period prescribed by the rules.

Note:

The legislation under which a reviewable decision is made may specify a different period for applying for review of that type of decision.

18(2)    
Subsection (1) is subject to section 19 (exception - Tribunal may extend period).

18(3)    
Rules made for the purposes of subsection (1) must not prescribe a period ending before the day that is 28 days after the day the decision is made.

18(4)    
Rules made for the purposes of subsection (1) may prescribe different periods for different classes of application.

SECTION 19   EXCEPTION - TRIBUNAL MAY EXTEND PERIOD  
Application to extend period

19(1)    
A person (the applicant ) may apply to the Tribunal to extend the period during which the applicant may apply to the Tribunal for review of a decision.

19(2)    
The Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.

19(3)    
The Tribunal may extend the period even if it has expired.

Exception - where reinstatement is available or has been refused

19(4)    
The Tribunal must not extend the period if:

(a)    section 102 permits the applicant to apply to the Tribunal to reinstate an application by the applicant for review of the decision; or

(b)    the Tribunal refuses an application by the applicant under section 102 to reinstate an application for review of the decision.

Notice to affected persons may be required

19(5)    
The Tribunal may:

(a)    give notice of the application to extend the period (the extension application ); or

(b)    require the applicant to give notice of the extension application;

to any other person the Tribunal considers is affected by the extension application.

Affected persons may oppose extension application

19(6)    
A person notified under subsection (5) may notify the Tribunal within 14 days that the person wishes to oppose the extension application.

19(7)    
If a person notifies the Tribunal under subsection (6), the Tribunal must not extend the period unless the Tribunal has given the applicant and any person who notified the Tribunal under subsection (6) a reasonable opportunity to adduce evidence and make submissions to the Tribunal in relation to the extension.

SECTION 20   EXCEPTION - NO PRESCRIBED PERIOD APPLIES  

20(1)    
If:

(a)    an application for review of a decision is made to the Tribunal; and

(b)    the application is not required by law to be made within any particular period; and

(c)    the Tribunal considers that the application was not made within a reasonable time after the making of the decision;

the Tribunal must dismiss the application.

20(2)    
However, subsection (1) does not apply if the Tribunal considers that there are special circumstances that justify the Tribunal reviewing the decision.

20(3)    
In considering the matter in paragraph (1)(c):

(a)    the Tribunal must have regard to the following:

(i) the time at which the applicant became aware of the making of the decision;

(ii) if the application would have been required by law to be made within a particular period if the application had been made by someone other than the applicant - that period; and

(b)    the Tribunal may have regard to any other matters that it considers relevant.

Division 4 - After an application is made  

Subdivision A - Parties to proceeding  

SECTION 21   PARTIES AND POTENTIAL PARTIES TO BE NOTIFIED OF APPLICATION  

21(1)    
This section applies if an application is made to the Tribunal for review of a decision.

21(2)    
The Tribunal must give written notice of the application to:

(a)    the applicant; and

(b)    the decision-maker; and

(c)    any other person who is made a party to the proceeding for the review by an Act or an instrument made under an Act.

21(3)    
If the Tribunal considers that another person's interests may be affected by the decision, the Tribunal may:

(a)    give to the person; or

(b)    require the applicant to give to the person;

written notice of the application and the person's right to apply to become a party to the proceeding for the review.

SECTION 22   PARTIES TO PROCEEDING FOR REVIEW  
Parties to proceeding

22(1)    
Each of the following are parties to a proceeding for review by the Tribunal of a decision:

(a)    the applicant for the review;

(b)    the decision-maker;

(c)    any other person, if:

(i) the person applies to the Tribunal to become a party to the proceeding; and

(ii) the Tribunal is satisfied that the person's interests are affected by the decision; and

(iii) the Tribunal considers it appropriate that the person become a party to the proceeding.

Note:

In addition, the Attorney-General of the Commonwealth or of a State or Territory is a party to a proceeding in certain circumstances (see sections 59 and 93).

22(2)    
This section is subject to sections 65 (certain parties may seek to withdraw from being a party) and 83 (Tribunal may remove party from proceeding if party fails to appear or does not comply).

Notice to other parties

22(3)    
If a person becomes a party to a proceeding under paragraph (1)(c), the Tribunal must give written notice to the other parties to the proceeding.

Subdivision B - Provision of reasons and documents  

SECTION 23  

23   DECISION-MAKER MUST GIVE TRIBUNAL REASONS AND DOCUMENTS - GENERAL RULE  
Within 28 days after the Tribunal notifies the decision-maker for a decision of an application for review of the decision, the decision-maker must give the Tribunal:

(a)    a statement of reasons for the decision; and

(b)    a copy of every other document that is:

(i) in the possession or under the control of the decision-maker; and

(ii) relevant to the Tribunal's review of the decision.

Note:

A decision-maker may, but is not required to, give the Tribunal the same statement of reasons given to an applicant (whether under section 269 or 270 or otherwise).

SECTION 24   DECISION-MAKER MUST GIVE TRIBUNAL ADDITIONAL STATEMENT IF TRIBUNAL REQUIRES - GENERAL RULE  

24(1)    
This section applies if a decision-maker for a decision has given the Tribunal a statement of reasons for the decision under section 23.

24(2)    
The Tribunal may order the decision-maker to give the Tribunal, within the period specified in the order, a statement containing further information in relation to any one or more of the following:

(a)    findings on material questions of fact in relation to the decision;

(b)    evidence or other material on which the findings were based;

(c)    reasons for the decision.

SECTION 25  

25   DECISION-MAKER MUST GIVE TRIBUNAL ADDITIONAL DOCUMENTS WITHIN 28 DAYS - GENERAL RULE  
If:

(a)    at any time during the Tribunal's review of a decision, a document that is relevant to the review comes into the possession or under the control of the decision-maker; and

(b)    the document has not been given to the Tribunal for the purposes of the review;

the decision-maker must give a copy of the document to the Tribunal within 28 days after the day on which the document came into the possession or under the control of the decision-maker.

SECTION 26   DECISION-MAKER MUST GIVE TRIBUNAL ADDITIONAL DOCUMENTS ON REQUEST - GENERAL RULE  

26(1)    
If, at any time during the Tribunal's review of a decision, the Tribunal is satisfied that a document that may be relevant to the review is in the possession or under the control of the decision-maker, the Tribunal may request the decision-maker to give a copy of the document to the Tribunal within a specified period.

26(2)    
The request may relate to a particular document or documents in a class of documents.

26(3)    
If the document is in the possession or under the control of the decision-maker, the decision-maker must give the Tribunal a copy of the document within the specified period.

SECTION 27   DECISION-MAKER MUST GIVE COPIES OF REASONS AND DOCUMENTS TO OTHER PARTIES - GENERAL RULE  

27(1)    
If a decision-maker for a decision is required to give the Tribunal a statement or copy of a document under this Subdivision within a period, the decision-maker must give a copy of the statement or document to each other party to the proceeding for review of the decision within the same period.

27(2)    
Subsection (1) does not apply if there is a certificate under section 91 (disclosure of information - public interest certificate) that relates to the disclosure of the statement or document in the proceeding.

SECTION 28   EXCEPTIONS - TRIBUNAL MAY ADJUST REQUIREMENTS  
When this section applies

28(1)    
This section applies if the decision-maker for a decision is required to give the Tribunal or a party to a proceeding a statement or copy of a document under this Subdivision within a period.

28(2)    
This section applies despite any other provision in this Subdivision (other than section 29).

Shorten period to comply

28(3)    
A party to the proceeding for review of the decision may apply to the Tribunal to shorten the period within which the decision-maker must give the statement or copy.

28(4)    
On application under subsection (3) or on the Tribunal's own initiative, the Tribunal may, by order, shorten the period within which the decision-maker must give the statement or copy if it appears to the Tribunal that a party to the proceeding for review of the decision could suffer hardship if the period is not shortened.

Extend period to comply

28(5)    
The decision-maker may apply to the Tribunal to extend the period within which the decision-maker must give the statement or copy.

28(6)    
On application under subsection (5) or on the Tribunal's own initiative, the Tribunal may, by order, extend the period within which the decision-maker must give the statement or copy.

28(7)    
The Tribunal may extend the period even if it has expired.

Tribunal orders otherwise

28(8)    
The decision-maker does not need to give the statement or copy if the Tribunal orders the decision-maker not to give the statement or copy.

Practice directions provide otherwise

28(9)    
The decision-maker does not need to give the statement or copy in the circumstances specified in the practice directions.

Number of copies

28(10)    
The Tribunal may, by order, require the decision-maker to give a specified number of copies of the statement or document.

SECTION 29   EXCEPTION - WHILE RESOLVING WHETHER TO RESTRICT PUBLICATION OR DISCLOSURE OF INFORMATION  

29(1)    
This section applies if the decision-maker for a decision is required to give the Tribunal or a party to a proceeding a statement or copy of a document under this Subdivision.

29(2)    
This section applies despite subsection 27(1) and section 28.

29(3)    
If:

(a)    a person applies to the Tribunal for an order under section 70 prohibiting or restricting the publication or other disclosure of information in the statement or copy; and

(b)    the person gives the Tribunal the statement or copy; and

(c)    the person gives a copy of the application for the order to each party to the proceeding for review of the decision (other than the person);

the decision-maker does not need to give the statement or copy unless the Tribunal, after making its decision on the application for the order, orders the decision-maker to do so.

SECTION 30  

30   PRIVILEGE AND PUBLIC INTEREST  
This Subdivision (other than section 25) has effect despite any rule of law relating to legal professional privilege, without prejudice privilege or the public interest in relation to the production of documents.

Subdivision C - Effect of application for review on decision  

SECTION 31   DECISION CANNOT BE ALTERED OUTSIDE TRIBUNAL PROCESS  
General rule

31(1)    
After an application is made to the Tribunal for review of a reviewable decision, the decision may not be altered otherwise than by the Tribunal.

Exceptions

31(2)    
However, the decision may be altered if:

(a)    both of the following apply:

(i) the parties to the proceeding for the review consent to the alteration;

(ii) the Tribunal, by order, consents to the alteration; or

(b)    the decision is remitted to the decision-maker under section 85.

Definitions

31(3)    
In this section:

alter
a decision means:

(a) vary the decision; or

(b) set the decision aside; or

(c) set the decision aside and make a decision in substitution for the decision.

SECTION 32   REVIEWABLE DECISION CONTINUES TO OPERATE UNLESS TRIBUNAL ORDERS OTHERWISE  
General rule

32(1)    
The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

Exception - Tribunal may stay operation or implementation

32(2)    
However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.

32(3)    
The order is subject to any conditions specified in the order.

32(4)    
The order has effect until the decision of the Tribunal on the application for review comes into operation.

32(5)    
Despite subsection (4), if:

(a)    the order states that it applies for a period; and

(b)    the period ends before the decision of the Tribunal on the application for review comes into operation;

the order has effect until the end of the period.

32(6)    
On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order.

Preconditions to making, varying or revoking an order

32(7)    
The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:

(a)    the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and

(b)    the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.

32(8)    
However, paragraph (7)(a) does not prevent the Tribunal making, varying or revoking an order without giving a party an opportunity to make a submission to the Tribunal if the Tribunal is satisfied that it is not practicable to give the party the opportunity.

32(9)    
If the Tribunal makes, varies or revokes an order without giving a party an opportunity to make a submission as mentioned in subsection (8), the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party.

PART 4 - PROCEEDINGS  

Division 1 - Preliminary  

SECTION 33  

33   SIMPLIFIED OUTLINE OF THIS PART  
 

Division 2 - Applications to Tribunal  

SECTION 34   HOW TO APPLY  
Manner of applying

34(1)    
An application to the Tribunal may be made in writing or in any other manner specified for the application in the practice directions.

Information to include

34(2)    
An application to the Tribunal must include the information specified for the application in the practice directions.

Note 1:

A fee may be payable in respect of the application (see rules made for the purposes of section 296). An application may be dismissed if the fee is not paid within the time prescribed by the rules (see section 98).

Note 2:

The legislation under which a reviewable decision is made may contain other requirements for applications for review of that type of decision.

34(3)    
A failure to comply with subsection (2) does not affect the validity of the application.

35   Applications may be made on behalf of a person  
To avoid doubt, if this Act, another Act or an instrument made under this Act or another Act allows a person to make an application to the Tribunal, the application may be made on the person's behalf by someone else.

Division 3 - Practice directions  

President may make practice directions  
President may make practice directions

36(1)    
The President may make practice 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 proceedings by the Tribunal;

(d)    the arrangement of the business of the Tribunal;

(e)    the places at which the Tribunal may sit;

(f)    the use of technology that allows a person to participate in a proceeding, or part of a proceeding, in the Tribunal without being physically present;

(g)    giving information or producing or giving documents or things to the Tribunal for any purpose, including:

(i) the form and manner in which information, documents or things may be produced or given; and

(ii) producing or giving additional copies of documents;

(h)    giving information or producing or giving documents or things to persons for the purposes of a proceeding in the Tribunal, including:

(i) the form and manner in which information, documents or things may be produced or given; and

(ii) producing or giving additional copies of documents;

(i)    dispute resolution processes under Subdivision C of Division 6;

(j)    the sorting, prioritisation, allocation and treatment of applications for review and related matters;

(k)    the accessibility of the Tribunal and the responsiveness of the Tribunal to the diverse needs of parties to proceedings;

(l)    any other matter that is required or permitted by this Act to be specified in the practice directions.

36(2)    
Practice directions must be made in writing.

Consultation before practice directions are made

36(3)    
Before making a practice direction, the President must consult the Tribunal Advisory Committee.

Regulations and rules prevail over practice directions

36(4)    
Practice directions that are inconsistent with the regulations or rules have no effect to the extent of the inconsistency, but practice directions are taken to be consistent with the regulations and rules to the extent that the practice directions are capable of operating concurrently with the regulations and rules.

Failure to comply does not invalidate

36(5)    
A failure by the Tribunal to comply with the practice directions does not affect the validity of anything done by the Tribunal.

Compliance is sufficient

36(6)    
If the Tribunal deals with a proceeding in a way that complies with the practice directions, the Tribunal is not required to take any other action in dealing with the proceeding.

Publishing

36(7)    
The Tribunal must publish practice directions.

Practice directions not legislative instruments

36(8)    
A practice direction made under subsection (1) is not a legislative instrument.

Division 4 - Constitution of Tribunal for a proceeding  

Subdivision A - Constituting the Tribunal  

SECTION 37   PRESIDENT MAY CONSTITUTE TRIBUNAL FOR PURPOSES OF A PROCEEDING  
President directs how Tribunal is constituted

37(1)    
The President may direct that a member or members constitute the Tribunal for the purposes of a proceeding in the Tribunal.

President directs which member presides

37(2)    
If the Tribunal is constituted by more than one member for the purposes of a proceeding, the President must direct which member is to preside for the purposes of the proceeding.

Requirements for directions

37(3)    
In making a direction under subsection (1) or (2), the President must comply with:

(a)    the requirements specified in this Act; and

(b)    any other requirements specified in the practice directions.

37(4)    
If a direction under subsection (1) or (2) is made in writing, the direction is not a legislative instrument.

President must notify parties to proceeding

37(5)    
If the President makes a direction under subsection (1) or (2) in relation to a proceeding, the President must give written notice to each party to the proceeding (other than a non-participating party to the proceeding).

37(6)    
The notice does not need to specify:

(a)    the member or members constituting the Tribunal; or

(b)    the member who is to preside.

37(7)    
If the Tribunal is constituted for the purposes of the proceeding by the guidance and appeals panel, the notice must state this.

SECTION 38  

38   PRESIDENT MUST CONSULT BEFORE INCLUDING JUDICIAL DEPUTY PRESIDENT  
Before the President directs that a Judicial Deputy President constitutes, or members at least one of whom is a Judicial Deputy President constitute, the Tribunal for the purposes of a proceeding, the President must consult the Chief Justice of the court of which the Judicial Deputy President is a Judge.

Subdivision B - Proceedings generally  

SECTION 39   GENERAL RULES FOR CONSTITUTION OF TRIBUNAL  
General rules

39(1)    
The Tribunal must be constituted for the purposes of a proceeding by a single member, 2 members or 3 members.

39(2)    
The Tribunal may be constituted by 2 or 3 members only if the President considers that it is appropriate to do so:

(a)    because the proceeding raises a complex issue; or

(b)    because one or more of the members have particular expertise relevant to the proceeding; or

(c)    in the interests of justice.

39(3)    
The Tribunal constituted must have no more than one member who is a Judge.

Exceptions

39(4)    
This section is subject to Subdivision C (guidance and appeals panel).

Subdivision C - Guidance and appeals panel  

SECTION 40   EXCEPTION - PRESIDENT REFERS APPLICATION FOR REVIEW THAT RAISES ISSUE OF SIGNIFICANCE  
When this section applies

40(1)    
This section applies instead of section 39 in relation to a proceeding in the Tribunal in relation to an application referred to the guidance and appeals panel by the President under section 122.

Note:

The President may refer an application for review of a decision to the guidance and appeals panel if the President is satisfied that the application raises an issue of significance to administrative decision-making (see section 122).

General rules

40(2)    
The Tribunal must be constituted for the purposes of the proceeding by 2 or 3 members.

40(3)    
One of the members must be the President or a Deputy President.

SECTION 41   EXCEPTION - PRESIDENT, ON APPEAL, REFERS TRIBUNAL DECISION THAT RAISES ISSUE OF SIGNIFICANCE  
When this section applies

41(1)    
If:

(a)    a proceedingrelates to a guidance and appeals panel application taken to be made because the President refers a decision of the Tribunal (the Tribunal decision ) to the guidance and appeals panel; and

(b)    the President is satisfied that the Tribunal decision raises an issue of significance to administrative decision-making;

the President must constitute the Tribunal for the purposes of the proceeding in accordance with this section instead of section 39.

Note:

Under section 128, the President may refer a decision of the Tribunal to the guidance and appeals panel if the President is satisfied of either or both of the following:

(a) the decision raises an issue of significance to administrative decision-making;

(b) the decision may contain an error of fact or law materially affecting the decision.

General rules

41(2)    
The Tribunal must be constituted for the purposes of the proceeding by 2 or 3 members.

41(3)    
One of the members must be the President or a Deputy President.

41(4)    
Unless the parties to the proceeding agree otherwise, none of the members can be a person who constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made.

SECTION 42   EXCEPTION - PRESIDENT, ON APPEAL, REFERS TRIBUNAL DECISION FOR MATERIAL ERROR  
When this section applies

42(1)    
If:

(a)    a proceeding relates to a guidance and appeals panel application taken to be made because the President refers a decision of the Tribunal (the Tribunal decision ) to the guidance and appeals panel; and

(b)    the President is not satisfied that the Tribunal decision raises an issue of significance to administrative decision-making;

the President must constitute the Tribunal for the purposes of the proceeding in accordance with this section instead of section 39.

Note:

Under section 128, the President may refer a decision of the Tribunal to the guidance and appeals panel if the President is satisfied of either or both of the following:

(a) the decision raises an issue of significance to administrative decision-making;

(b) the decision may contain an error of fact or law materially affecting the decision.

General rules

42(2)    
The Tribunal must be constituted for the purposes of the proceeding by a single member, 2 members or 3 members.

42(3)    
Unless the parties to the proceeding agree otherwise, none of the members can be a person who constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made.

42(4)    
If the Tribunal is constituted for the purposes of the proceeding by a single member, the member must be more senior than the most senior person involved in making the Tribunal decision (see subsections (6) and (7)).

42(5)    
If the Tribunal is constituted for the purposes of the proceeding by 2 or 3 members, the presiding member must be:

(a)    if a Non-Judicial Deputy President constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made - equal in seniority to, or more senior than, the most senior person involved in making the Tribunal decision (see subsections (6) and (7)); or

(b)    in any other case - more senior than the most senior person involved in making the Tribunal decision (see subsections (6) and (7)).

42(6)    
For the purposes of subsections (4) and (5), the most senior person involved in making the Tribunal decision is:

(a)    if the Tribunal decision was made by the Tribunal constituted for the purposes of a proceeding by a single member - that member; or

(b)    if the Tribunal decision was made by the Tribunal constituted for the purposes of a proceeding by 2 or more members - the most senior of those members.

42(7)    
For the purposes of subsections (4), (5) and (6), the order of seniority of members is as follows:

(a)    the President;

(b)    Judicial Deputy Presidents;

(c)    Non-Judicial Deputy Presidents;

(d)    senior members;

(e)    general members.

Subdivision D - Reconstitution  

SECTION 43  

43   RECONSTITUTION - BEFORE HEARING STARTS  
At any time before the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal.

SECTION 44   RECONSTITUTION - AFTER HEARING STARTS IF MEMBER UNAVAILABLE ETC.  
President may reconstitute Tribunal

44(1)    
At any time after the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal 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 reconstituting the Tribunal is in the interests of achieving the quick and efficient conduct of the proceeding.

44(2)    
However, the President must not reconstitute the Tribunal under this section unless the President:

(a)    considers that it is in the interests of justice to do so; and

(b)    consults each member who would cease to be a member of the Tribunal as constituted for the purposes of the proceeding if it is reasonably practicable to do so.

President may direct member not to take part

44(3)    
The President may direct that a member not take part in a proceeding in the Tribunal if:

(a)    the President considers that it is in the interests of justice to do so; and

(b)    the President has consulted the member if it is reasonably practicable to do so.

SECTION 45  

45   RECONSTITUTION - INVOLVEMENT IN DISPUTE RESOLUTION PROCESS  
At any time after the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal if section 89 (eligibility of person conducting dispute resolution process to sit as a member) applies in relation to the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding.

SECTION 46  

46   RECONSTITUTION - AFTER HEARING STARTS FOR CONFLICT OF INTEREST OR BIAS  
At any time after the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal if the President is satisfied that the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:

(a)    has a conflict of interest in relation to the proceeding; or

(b)    has an actual or apprehended biasin relation to the proceeding.

SECTION 47  

47   RECONSTITUTION - AS GUIDANCE AND APPEALS PANEL AFTER HEARING STARTS  
The President must reconstitute the Tribunal for the purposes of a proceeding if, at any time after the start of the hearing of the proceeding, the application to which the proceeding relates is referred to the guidance and appeals panel by the President under section 122.

Note:

The President may refer an application for review of a decision to the guidance and appeals panel if the President is satisfied that the application raises an issue of significance to administrative decision-making (see section 122).

SECTION 48  

48   AFTER TRIBUNAL IS RECONSTITUTED  
If the President reconstitutes the Tribunal for the purposes of a proceeding, the Tribunal as reconstituted:

(a)    must continue the proceeding; and

(b)    may have regard to:

(i) any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding); and

(ii) any document or thing relating to the proceeding given to the Tribunal as previously constituted.

Division 5 - Tribunal procedure  

Subdivision A - General principles  

SECTION 49   TRIBUNAL HAS DISCRETION IN RELATION TO PROCEDURE  

49(1)    
The procedure of the Tribunal in a proceeding is within the discretion of the Tribunal.

49(2)    
In exercising its discretion, the Tribunal must have regard to the circumstances of the proceeding.

49(3)    
Subsections (1) and (2) are subject to this Act and the rules.

SECTION 50   TRIBUNAL IS TO ACT INFORMALLY ETC.  

50(1)    
In a proceeding, the Tribunal must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits.

50(2)    
Subsection (1) is subject to this Act and the rules.

SECTION 51   TRIBUNAL TO BE ACCESSIBLE  

51(1)    
As far as practicable, the Tribunal must conduct each proceeding in the Tribunal in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties.

51(2)    
Subsection (1) is subject to this Act and the rules.

SECTION 52  

52   TRIBUNAL IS NOT BOUND BY RULES OF EVIDENCE  
The Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it considers appropriate.

SECTION 53  

53   TRIBUNAL CONTROLS SCOPE OF REVIEW OF DECISION  
In a proceeding for review of a decision, the Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers.

SECTION 54  

54   TRIBUNAL CAN EXERCISE POWERS OF DECISION-MAKER  
For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.

SECTION 55   RIGHT TO PRESENT CASE  
General rule

55(1)    
The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:

(a)    present the party's case; and

(b)    access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and

(c)    make submissions and adduce evidence.

Exceptions

55(2)    
Subsection (1) does not apply in relation to a non-participating party to the proceeding.

55(2A)    
If a party to the proceeding is a non-participating party to a Tribunal case event in relation to the proceeding, subsection (1) does not apply in relation to that party in relation to that Tribunal case event.

55(3)    
Subsection (1) is subject to:

(a)    section 69 (hearings to be in public unless practice directions or Tribunal order requires otherwise); and

(b)    section 70 (Tribunal may restrict publication or disclosure of information); and

(c)    section 78 (inspection of documents produced under summons); and

(d)    section 91 (disclosure of information - public interest certificate); and

(e)    Part 6 (proceedings in Intelligence and Security jurisdictional area).

55(4)    
This section does not limit section 53 (Tribunal controls scope of review of decision).

SECTION 56   PARTIES AND THEIR REPRESENTATIVES TO ASSIST TRIBUNAL  
Decision-makers and their representatives

56(1)    
In a proceeding for review of a decision, the decision-maker and any person representing the decision-maker must use their best endeavours to assist the Tribunal to:

(a)    make the correct or preferable decision in relation to the proceeding; and

(b)    achieve the objective in section 9.

Other parties and their representatives

56(2)    
A party to a proceeding in the Tribunal (other than the decision-maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.

Obligation is limited for non-participating party

56(3)    
The obligation of a non-participating party to a proceeding or a Tribunal case event in relation to a proceeding, and any person representing the party, to use best endeavours to assist the Tribunal in relation to the proceeding only applies in relation to action the party is required to take by this Act or the Tribunal in relation to the proceeding.

SECTION 57  

57   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 or in the interests of justice.

SECTION 58   RESOLVING DISAGREEMENTS BETWEEN TRIBUNAL MEMBERS  
2 members

58(1)    
If 2 members constitute the Tribunal for the purposes of a proceeding and they do not agree about any matter, the view of the presiding member prevails.

3 members

58(2)    
If 3 members constitute the Tribunal for the purposes of a proceeding and they do not agree about any matter:

(a)    if the majority agree - the view of the majority prevails; or

(b)    in any other case - the view of the presiding member prevails.

Subdivision B - Parties and representation  

SECTION 59   ATTORNEY-GENERAL OF THE COMMONWEALTH MAY BECOME A PARTY  
Becoming a party

59(1)    
If the Attorney-General of the Commonwealth gives written notice to the Tribunal that the Attorney-General wishes to be a party to a proceeding in the Tribunal, the Attorney-General is a party to the proceeding.

Ceasing to be a party

59(2)    
If:

(a)    the Attorney-General of the Commonwealth is a party to a proceeding because of a notice under subsection (1); and

(b)    the Attorney-General gives written notice to the Tribunal that the Attorney-General wishes to cease being a party to the proceeding;

the Attorney-General ceases being a party to the proceeding.

Costs

59(3)    
If the Attorney-General of the Commonwealth is a party to a proceeding because of a notice under subsection (1), the Attorney-General may authorise the Commonwealth to pay another party to the proceeding any costs that the Attorney-General considers the party reasonably incurred as a result of the Attorney-General being a party to the proceeding.

59(4)    
(Repealed by No 27 of 2024)

SECTION 60   DECISION-MAKERS MAY ELECT NOT TO PARTICIPATE IN KIND OF PROCEEDING OR TRIBUNAL CASE EVENT  

60(1)    
A person who is the decision-maker for a reviewable decision may give the Tribunal written notice (an election notice ) that the person does not wish to participate in:

(a) a kind of proceeding in the Tribunal; or

(b) a kind of Tribunal case event (other than a directions hearing or part of a directions hearing) in relation to a kind of proceeding in the Tribunal.

60(2)    
However, subsection (1) does not apply in relation to a kind of proceeding or Tribunal case event prescribed by the rules.

60(3)    
An election notice is not a legislative instrument.

SECTION 61   DECISION-MAKER WHO ELECTS NOT TO PARTICIPATE MAY BE A NON-PARTICIPATING PARTY TO PROCEEDING OR TRIBUNAL CASE EVENT  
Person who has given election notice

61(1)    
A person is a non-participating party to a proceeding if:

(a)    the person is a party to the proceeding (other than the applicant); and

(b)    the proceeding relates to a decision for which the person is the decision-maker; and

(c)    the proceeding is of a kind for which the person has given an election notice under paragraph 60(1)(a); and

(d)    the proceeding is not a guidance and appeals panel proceeding; and

(e)    any conditions prescribed by the rules for the purposes of this paragraph are satisfied; and

(f)    the Tribunal has not decided under section 62 that the person is to participate in the proceeding; and

(g)    the Tribunal has not ordered the person to participate in the proceeding under section 63.

61(1A)    
A person is a non-participating party to a Tribunal case event in relation to a proceeding if:

(a)    the person is a party to the proceeding (other than the applicant); and

(b)    the proceeding relates to a decision for which the person is the decision-maker; and

(c)    the Tribunal case event and proceeding are of a kind for which the person has given an election notice under paragraph 60(1)(b); and

(d)    the proceeding is not a guidance and appeals panel proceeding; and

(e)    any conditions prescribed by the rules for the purposes of this paragraph are satisfied; and

(f)    the Tribunal has not decided under section 62 that the person is to participate in the Tribunal case event; and

(g)    the Tribunal has not ordered the person to participate in the Tribunal case event under section 63.

Note:

A non-participating party remains a party to the proceeding and still needs to comply with this Act and orders of the Tribunal in relation to the proceeding. However, certain requirements do not apply to the party (see, for example, section 83 which deals with removal of a party for failure to appear or non-compliance).

61(2)    
To avoid doubt, once the Tribunal decides under section 62 that a person is to participate in a proceeding or Tribunal case event, or orders the person to participate in a proceeding or Tribunal case event under section 63, the person is no longer a non-participating party to the proceeding or Tribunal case event and a new election notice does not affect this.

Prescribed circumstances

61(3)    
A person is also a non-participating party to a proceeding or Tribunal case event in the circumstances prescribed by the rules.

SECTION 62   TRIBUNAL MAY ALLOW NON-PARTICIPATING PARTY TO PARTICIPATE  

62(1)    
If a non-participating party to a proceeding gives the Tribunal written notice (a participation notice ) that the party wishes to participate in the proceeding, the Tribunal must decide whether or not the party is to participate in the proceeding.

Note:

An election notice relates to a kind of proceeding. A participation notice relates to a particular proceeding of that kind. The election notice continues to apply to other proceedings of that kind.

62(1A)    
If a non-participating party to a Tribunal case event gives the Tribunal written notice (a participation notice ) that the party wishes to participate in the Tribunal case event, the Tribunal must decide whether or not the party is to participate in the Tribunal case event.

Note:

An election notice relates to a kind of Tribunal case event in relation to a kind of proceeding. A participation notice relates to a particular Tribunal case event of that kind. The election notice continues to apply to other Tribunal case events of that kind in relation to proceedings of that kind.

62(2)    
A participation notice is not a legislative instrument.

SECTION 63   NON-PARTICIPATING PARTY MAY GIVE SUBMISSIONS OR BE REQUIRED TO PARTICIPATE  
Written submissions may be provided

63(1)    
A non-participating party to a proceeding may give the Tribunal written submissions in relation to the proceeding.

63(1A)    
A non-participating party to a Tribunal case event may give the Tribunal written submissions in relation to the Tribunal case event.

Tribunal may order non-participating party to participate, appear or provide written submissions

63(2)    
The Tribunal may order a non-participating party to a proceeding or Tribunal case event in relation to a proceeding to do any one or more of the following, if the Tribunal considers it would assist in progressing the proceeding or in making the correct or preferable decision:

(a)    appear before the Tribunal at a Tribunal case event in relation to the proceeding;

(b)    give the Tribunal written submissions in relation to the proceeding or a Tribunal case event in relation to the proceeding;

(c)    participate in the proceeding.

SECTION 64   RULES MAY DEAL WITH ELECTIONS IN RELATION TO PARTICIPATION  

64(1)    
The rules may provide for or in relation to:

(a)    the operation of sections 60 to 63; and

(b)    the operation of this Part in relation to parties who are or who have been non-participating parties to proceedings or Tribunal case events.

64(2)    
Without limiting the scope of rules that may be made for the purposes of subsection (1), the rules may provide for the following:

(a)    requirements for giving election notices or participation notices;

(b)    publication of election notices or participation notices;

(c)    matters relating to steps in a proceeding taken while a person is a non-participating party to the proceeding or a Tribunal case event in relation to the proceeding.

SECTION 65   CERTAIN PARTIES MAY SEEK TO WITHDRAW FROM BEING A PARTY  
General rule

65(1)    
The Tribunal may order that a party to a proceeding in the Tribunal ceases to be a party to the proceeding if the party gives written notice to the Tribunal that the party wishes to cease being a party to the proceeding.

Exceptions - applicant and decision-maker

65(2)    
However, subsection (1) does not apply in relation to the following parties:

(a)    in any case - the applicant;

(b)    if the proceeding relates to a decision - the decision-maker.

Note:

The applicant may withdraw the application (see section 95).

SECTION 66   REPRESENTATION BEFORE TRIBUNAL  
General rules

66(1)    
A party to a proceeding in the Tribunal may choose another person to represent the party in the proceeding.

66(2)    
A person who is required or permitted to appear before the Tribunal may, with the permission of the Tribunal, choose another person to represent the person before the Tribunal.

Exception

66(3)    
However, the Tribunal may order that a person is not to be represented by the person's representative if the Tribunal considers that:

(a)    the representative has a conflict of interest in representing the person; or

(b)    the representative is not acting in the best interests of the person; or

(c)    representation of the person by the representative presents a safety risk to any person; or

(d)    representation of the person by the representative presents an unacceptable privacy risk to any person; or

(e)    the representative is otherwise impeding the Tribunal.

Note:

A party to the proceeding can choose another representative. A person required or permitted to appear before the Tribunal can seek the Tribunal's permission to choose another representative.

SECTION 67   TRIBUNAL MAY APPOINT LITIGATION SUPPORTER  
Appointment of litigation supporter

67(1)    
The Tribunal may, by order, appoint a person to be a litigation supporter for a party to a proceeding in the Tribunal if the Tribunal considers that:

(a)    the party does not have decision-making ability; and

(b)    the appointment is necessary, taking into account the availability and suitability of other measures that would allow the party to participate in the proceeding.

67(1A)    
In considering whether to make an order under subsection (1), it is to be presumed that a party to a proceeding has decision-making ability.

67(1B)    
The presumption is not rebutted solely on the basis that a party has a disability.

67(2)    
In appointing a person to be a litigation supporter for a party to a proceeding, the Tribunal must take into account:

(a)    the party's will and preferences, or likely will and preferences, in relation to:

(i) whether the Tribunal should appoint a person to be a litigation supporter; and

(ii) who the Tribunal should appoint to be a litigation supporter; or

(b)    if the party's will and preferences, or likely will and preferences, cannot be ascertained - the personal and social wellbeing of the party.

67(3)    
The Tribunal may appoint a person to be a litigation supporter for a party to a proceeding only if:

(a)    the person is at least 18 years old; and

(b)    the person has no conflict of interest in representing the party; and

(c)    the person consents to the appointment; and

(d)    the Tribunal considers that the person is able to meet the requirements in subsections (6) to (8); and

(e)    any conditions prescribed by the rules for the purposes of this paragraph are satisfied.

67(4)    
The Tribunal may appoint a person to be a litigation supporter for a party whether or not the party has a guardian or representative appointed under another law.

Role of litigation supporter

67(5)    
If a party to a proceeding in the Tribunal has a litigation supporter:

(a)    the party mayparticipate in the proceeding:

(i) wherever possible - with the support of the litigation supporter; or

(ii) otherwise - by the litigation supporter; and

(b)    the litigation supporter must do anything required to be done by the party in relation to the proceeding by an Act or an instrument under an Act; and

(c)    the litigation supporter may do anything permitted to be done by the party in relation to the proceeding by an Act or an instrument under an Act.

Duty of litigation supporter

67(6)    
If a party to a proceeding in the Tribunal has a litigation supporter, the litigation supporter must give effect to the party's will and preferences, or likely will and preferences, in relation to the proceeding.

67(7)    
However, if to do so would pose a serious risk to the party's personal and social wellbeing, the litigation supporter must instead act in a manner that promotes the personal and social wellbeing of the party.

67(8)    
If the party's will and preferences, or likely will and preferences, cannot be ascertained, the litigation supporter must act in a manner that promotes the personal and social wellbeing of the party.

Resignation and removal of litigation supporter

67(9)    
A litigation supporter may resign by giving the Tribunal a written resignation.

67(10)    
The Tribunal may, by order, remove a party's litigation supporter if:

(a)    the party requests a different person be appointed to be a litigation supporter for the party; or

(b)    the Tribunal considers that the party has decision-making ability; or

(c)    the Tribunal considers that:

(i) the litigation supporter has a conflict of interest in representing the party; or

(ii) the litigation supporter has not complied with subsections (6) to (8); or

(iii) representation of the party by the litigation supporter presents a safety risk to any person; or

(iv) representation of the party by the litigation supporter presents an unacceptable privacy risk to any person; or

(v) the litigation supporter is otherwise impeding the Tribunal.

Rules

67(11)    
The rules may provide for matters relating to litigation supporters.

67(12)    
Without limiting the scope of rules that may be made for the purposes of subsection (11), the rules may provide for or in relation to the following:

(a)    costs relating to litigation supporters;

(b)    giving documents to a litigation supporter or a party who has a litigation supporter.

SECTION 68   TRIBUNAL MAY APPOINT INTERPRETER  
Tribunal may appoint interpreter on request

68(1)    
A person appearing at a Tribunal case event may request the Tribunal to appoint an interpreter for the person.

68(2)    
The Tribunal must comply with the request unless the Tribunal considers that the person does not require an interpreter for the purposes of:

(a)    communication with the Tribunal; or

(b)    understanding evidence and submissions given to the Tribunal.

Tribunal must appoint interpreter in certain circumstances

68(3)    
If:

(a)    the Tribunal considers that a person appearing at a Tribunal case event requires an interpreter for the purposes of:

(i) communication with the Tribunal; or

(ii) understanding evidence and submissions given to the Tribunal; and

(b)    the person does not request the Tribunal to appoint an interpreter;

the Tribunal must, on its own initiative, appoint an interpreter for the purposes of communication between the person and the Tribunal.

Conflict of interest

68(4)    
The Tribunal may appoint a person to be an interpreter for another person only if the person has no conflict of interest in acting as an interpreter for the other person.

Tribunal may appoint interpreters in other situations

68(5)    
Subsections (2) and (3) do not limit the power of the Tribunal to appoint an interpreter.

Oath or affirmation for interpreter

68(6)    
The Tribunal may require an interpreter appointed by the Tribunal to take an oath or make an affirmation. A member or a staff member may administer an oath or affirmation to the interpreter.

68(7)    
The oath or affirmation is an oath or affirmation that the interpretation the interpreter will give will be true.

Division 6 - Tribunal powers  

Subdivision A - Hearings and evidence  

SECTION 69   HEARINGS TO BE IN PUBLIC UNLESS PRACTICE DIRECTIONS OR TRIBUNAL ORDER REQUIRES OTHERWISE  
General rule

69(1)    
The hearing of a proceeding in the Tribunal must be in public.

Note:

The hearing of a proceeding is the substantive hearing of the matter before the Tribunal. Directions hearings do not need to be in public (see the definition of hearing of a proceeding in section 4).

Exception - practice directions may require private hearing

69(2)    
Despite subsection (1), in the circumstances specified in the practice directions:

(a)    the hearing or part of the hearing is to take place in private; and

(b)    only the persons specified in the practice directions may be present.

Exception - Tribunal may require private hearing

69(3)    
Despite subsection (1), the Tribunal may, by order:

(a)    direct that the hearing or part of the hearing is to take place in private; and

(b)    give directions in relation to the persons who may be present.

Note:

The power must be exercised in accordance with section 71.

SECTION 70   TRIBUNAL MAY RESTRICT PUBLICATION OR DISCLOSURE OF INFORMATION  
Information about parties, witnesses and others

70(1)    
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 a proceeding in the Tribunal; or

(ii) any person related to or otherwise associated with any party to or witness in a proceeding in the Tribunal; or

(b)    information otherwise concerning a party, witness or other person mentioned in paragraph (a).

Note 1:

The power must be exercised in accordance with section 71.

Note 2:

Breach of a non-publication or non-disclosure order is an offence (see section 119).

Information relating to proceeding

70(2)    
The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of information that:

(a)    relates to a proceeding in the Tribunal; and

(b)    is any of the following:

(i) information that comprises evidence or information about evidence;

(ii) information given to the Tribunal.

Note 1:

The power must be exercised in accordance with section 71.

Note 2:

Breach of a non-publication or non-disclosure order is an offence (see section 119).

70(3)    
Without limiting subsection (2), the order may prohibit or restrict the publication or other disclosure to some or all of the parties to the proceeding.

Order can be made on application or on Tribunal's initiative

70(4)    
The Tribunal may make an order under this section on application by a person or on its own initiative.

SECTION 71   REQUIREMENTS FOR TRIBUNAL ORDERS ABOUT HEARINGS, PUBLICATION AND DISCLOSURE  
Practice directions

71(1)    
In making an order under subsection 69(3) or section 70, the Tribunal must comply with the requirements (if any) specified in the practice directions.

Considerations

71(2)    
In considering whether to make an order under subsection 69(3) or section 70 in relation to a proceeding, the Tribunal must have regard to the following:

(a)    the principle that it is desirable that hearings of proceedings in the Tribunal are held in public;

(b)    the principle that it is desirable that evidence given before the Tribunal is made available to the public;

(c)    the principle that it is desirable that evidence given before the Tribunal and the contents of documents given to the Tribunal are made available to all the parties to the proceeding;

(d)    any reasons in favour of making an order, including the following:

(i) in any case - the circumstances of the parties to the proceeding and other persons connected to the proceeding;

(ii) in any case - the harm (if any) that is likely to occur to a person if the order is not made;

(iii) in relation to an order under section 70 - the confidential nature (if any) of the information;

(e)    any other matters that the Tribunal considers relevant.

SECTION 72   TRIBUNAL MUST NOTIFY PARTIES OF TRIBUNAL CASE EVENT  
General rule

72(1)    
Before a Tribunal case event in relation to a proceeding, the Tribunal must give written notice to the parties to the proceeding of the date, time and place of the Tribunal case event.

Exception - non-participating party

72(2)    
Subsection (1) does not apply in relation to a non-participating party to the proceeding or Tribunal case event.

SECTION 73   HOW A PARTY MAY APPEAR AT A TRIBUNAL CASE EVENT  

73(1)    
Parties to proceedings may appear at Tribunal case events:

(a)    themselves; or

(b)    unless subsection (2) applies - through a representative.

73(2)    
The Tribunal may order a party to a proceeding to appear at a Tribunal case event in relation to the proceeding personally, whether or not the party's representative also appears.

73(3)    
Subsection (2) does not apply in relation to the decision-maker in a proceeding that relates to a decision.

SECTION 74   TRIBUNAL MAY SUMMON PERSON TO GIVE EVIDENCE OR PRODUCE DOCUMENTS  
Power to issue summons

74(1)    
If the Tribunal has reasonable grounds to believe that a person has information, or a document or thing, relevant to a proceeding in the Tribunal, the Tribunal may, in writing, summon the 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 thing specified in the summons.

74(2)    
Except with the consent of the person being summoned, the day specified in the summons must be at least 14 days after the day the summons is given to the person.

74(3)    
The Tribunal may summon the person:

(a)    at the request of a party to the proceeding; or

(b)    on its own initiative.

74(4)    
The Tribunal may refuse a request for a person to be summoned.

Early compliance with summons

74(5)    
A person may comply with a summons to produce a document or thing by producing the document or thing to the Tribunal before the day specified in the summons.

74(6)    
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 orders the person to appear before the Tribunal.

Note 1:

A person might commit an offence by failing to comply with a summons (see section 116).

Note 2:

A person summoned under this section may be entitled to be paid fees or allowances under section 77. However, the person is not excused from complying with a summons only because the person thinks that an amount paid to the person under that section is not sufficient.

SECTION 75  

75   TRIBUNAL MAY TAKE EVIDENCE  
The Tribunal may take evidence, including on oath or by affirmation, inside or outside Australia.

SECTION 76   TAKING EVIDENCE ON OATH OR AFFIRMATION  

76(1)    
At the hearing of a proceeding or a directions hearing in relation to a proceeding:

(a)    the Tribunal may require a person appearing before the Tribunal to give evidence to take an oath or make an affirmation; and

(b)    a member or a staff member may administer an oath or affirmation to the person.

Note 1:

Failure to take an oath or make an affirmation is an offence (see section 117).

Note 2:

The hearing is a judicial proceeding for the purposes of Part III of the Crimes Act 1914, which creates various offences in relation to such proceedings.

76(2)    
The oath or affirmation is an oath or affirmation that the evidence the person will give will be true.

76(3)    
The Tribunal may allow a person appearing before the Tribunal at the hearing of a proceeding, or a directions hearing in relation to a proceeding, who has taken an oath or made an affirmation, to give evidence by tendering a written statement and verifying it by oath or affirmation.

Note:

A person might commit an offence if the person provides false or misleading evidence (see section 118).

SECTION 77   PAYMENT OF WITNESS FEES AND ALLOWANCES  
Entitlement to fees and allowances

77(1)    
A person required by this Act, another Act or an instrument made under an Act to give information or produce or give a document or thing to the Tribunal is to be paid, in accordance with the rules, any fees, and any allowances for expenses, prescribed by the rules for compliance with the requirement.

Rules concerning fees and allowances

77(2)    
Without limiting the scope of rules that may be made for the purposes of subsection (1), those rules may prescribe, or prescribe matters relating to, any or all of the following:

(a)    the circumstances in which a person is to be paid;

(b)    the circumstances in which a person is not to be paid;

(c)    who must pay;

(d)    the time when payment is required.

77(3)    
Rules made for the purposes of subsection (1) may do any or all of the following:

(a)    prescribe the amount of, or a method for working out the amount of, a fee or allowance;

(b)    make provision in relation to the whole or a part of a fee or allowance;

(c)    provide for the Tribunal to make orders relating to the payment of a fee or allowance in relation to a proceeding.

SECTION 78   INSPECTION OF DOCUMENTS PRODUCED UNDER SUMMONS  
General rule

78(1)    
A party to a proceeding may inspect or take a copy of a document or thing produced under a summons under section 74 in relation to the proceeding:

(a)    in the circumstances specified in the practice directions; or

(b)    if the Tribunal permits.

Exception - public interest certificate applies

78(2)    
This section does not apply if there is a certificate under section 91 that relates to disclosure of the document or thing in the proceeding.

Exception - disclosure prohibited by law

78(3)    
Subsection (1) does not apply if the inspection or copying of the document or thing would result in a disclosure of information which is prohibited or restricted by or under this Act, another Act or an instrument made under an Act.

Note:

The disclosure of information may be prohibited or restricted by Tribunal order under section 70.

Exception - person objects

78(4)    
The person required to produce the document or thing, or any party to the proceeding, may give the Tribunal notice that the person or party objects to the document or thing being inspected or copied.

78(5)    
A notice under subsection (4):

(a)    may be made in writing or in any other manner specified in the practice directions; and

(b)    must contain reasons for the objection.

78(6)    
If a notice is given under subsection (4), the Tribunal must decide whether the document or thing may be inspected or copied by a party to the proceeding.

Subdivision B - Management of proceedings  

SECTION 79   TRIBUNAL MAY GIVE DIRECTIONS IN RELATION TO PROCEDURE FOR PROCEEDING  

79(1)    
The Tribunal may, by order, give directions in relation to the procedure to be followed for a proceeding in the Tribunal.

79(2)    
The order may do any of the following:

(a)    require a party to the proceeding to give information or documents to the Tribunal or another party to the proceeding for the purposes of the proceeding;

(b)    require a party to the proceeding to give a statement of matters or contentions on which the party intends to rely in the proceeding to the Tribunal or another party to the proceeding;

(c)    limit the issues on which expert evidence may be given;

(d)    limit the number of experts to report on an issue;

(e)    require parties to the proceeding to appoint a single person to provide expert evidence;

(f)    limit the number of persons to be called to give evidence (either generally or on a specified matter);

(g)    limit the number of persons to appear at a dispute resolution process in relation to the proceeding;

(h)    require expert witnesses to give evidence at the same time;

(i)    limit the time for giving evidence or making oral submissions;

(j)    limit the length of written submissions;

(k)    limit the ability of a party to the proceeding to give information or documents to the Tribunal and any other party to the proceeding for the purposes of the proceeding within a period before the start of the hearing of the proceeding.

79(3)    
If the proceeding is for review of a decision, the order may require the decision-maker to give the Tribunal or another party to the proceeding a statement setting out the grounds the decision-maker considers support the decision-maker's position in relation to the review.

79(4)    
Subsections (2) and (3) do not limit this section.

79(5)    
Section 55 (right to present case) does not prevent the Tribunal making an order under this section.

SECTION 80  

80   TRIBUNAL MAY HOLD DIRECTIONS HEARING  
The Tribunal may hold a directions hearing in relation to a proceeding in the Tribunal.

SECTION 81  

81   TRIBUNAL MAY PROCEED WITHOUT ABSENT PARTY  
The Tribunal may proceed with a Tribunal case event that relates to a proceeding in the absence of a party to the proceeding if the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event.

SECTION 82  

82   TRIBUNAL MAY ADJOURN TRIBUNAL CASE EVENT  
The Tribunal may adjourn a Tribunal case event that relates to a proceeding in the Tribunal from time to time.

SECTION 83   TRIBUNAL MAY REMOVE PARTY FROM PROCEEDING IF PARTY FAILS TO APPEAR OR DOES NOT COMPLY  
Tribunal may remove party whofails to appear

83(1)    
If:

(a)    a party to a proceeding in the Tribunal fails to appear at a Tribunal case event that relates to the proceeding; and

(b)    the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event;

the Tribunal may order that the party ceases to be a party to the proceeding.

Note 1:

Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in section 4).

Note 2:

For how to appear at a Tribunal case event, see section 73.

83(2)    
However, subsection (1) does not apply if the party is:

(a)    the applicant; or

(b)    a non-participating party to the proceeding or Tribunal case event.

Tribunal may remove party who fails to comply with Act or order

83(3)    
If a party to a proceeding in the Tribunal fails to comply with this Act or an order of the Tribunal in relation to the proceeding within a reasonable time, the Tribunal may order that the party ceases to be a party to the proceeding.

83(4)    
However, subsection (3) does not apply if the party is the applicant.

Reinstatement

83(5)    
If a person ceases to be a party to a proceeding under subsection (1) or (3), the person is a party to the proceeding again if the Tribunal, on application by the person or on its own initiative, orders that the person is a party to the proceeding.

SECTION 84   IF APPLICANT DIES OR IS BANKRUPT, WOUND UP OR IN LIQUIDATION OR ADMINISTRATION  
When this section applies

84(1)    
This section applies in relation to a proceeding in the Tribunal in relation to an application (the substantive application ) for review of a decision if:

(a)    the applicant:

(i) dies; or

(ii) becomes bankrupt; or

(iii) is wound up or otherwise ceases to exist; or

(iv) becomes subject to any form of liquidation or administration (however described); and

(b)    the Tribunal considers that the applicant cannot continue with the substantive application because of the event mentioned in paragraph (a).

Another person may apply to continue with substantive application

84(2)    
The following persons may apply to the Tribunal to continue with the substantive application:

(a)    a legal personal representative, executor, administrator, liquidator or trustee of the applicant for the substantive application;

(b)    a person whose interests are affected by the decision.

84(3)    
If a person applies to continue with the substantive application, the Tribunal may, on request or on its own initiative, give such orders as appear to the Tribunal to be appropriate in the circumstances.

Tribunal may dismiss substantive application

84(4)    
The Tribunal may dismiss the substantive application if:

(a)    the Tribunal considers that there is no person mentioned in subsection (2) who can continue with the substantive application; or

(b)    no application to continue with the substantive application is made within 3 months after the Tribunal becomes aware of the event mentioned in paragraph (1)(a).

SECTION 85   TRIBUNAL MAY REMIT DECISION TO DECISION-MAKER FOR RECONSIDERATION  
Tribunal may remit decision to decision-maker

85(1)    
At any time during a proceeding for review of a reviewable decision, the Tribunal may remit the decision to the decision-maker and ask the decision-maker to reconsider the decision.

Decision-maker must reconsider decision

85(2)    
If the Tribunal remits the decision to the decision-maker, the decision-maker must reconsider the decision and do one of the following:

(a)    affirm the decision;

(b)    vary the decision;

(c)    set aside the decision and make a new decision in substitution for the decision set aside.

After reconsideration

85(3)    
After the decision-maker complies with subsection (2), the proceeding resumes.

85(4)    
The applicant may:

(a)    proceed with the application; or

(b)    withdraw the application under section 95.

Review continues in relation to decision as updated by decision-maker

85(5)    
If the decision-maker varies the decision, the application for review of the decision is taken to be an application for review of the decision as varied instead.

85(6)    
If the decision-maker sets aside the decision and makes a new decision in substitution for the decision set aside, the application for review of the decision is taken to be an application for review of the new decision instead.

Timeframes for reconsideration

85(7)    
The decision-maker must comply with subsection (2) within the period specified by the Tribunal when remitting the decision to the decision-maker.

85(8)    
However, the Tribunal may, on the application of the decision-maker, extend the period within which the decision-maker must comply with subsection (2).

85(9)    
The decision-maker is taken to have affirmed the decision if the decision-maker does not comply with subsection (2) within the period specified by the Tribunal.

85(10)    
For the purposes of subsection (9), take into account any extension under subsection (8) of the period that occurs before the period would otherwise expire.

SECTION 86  

86   TRIBUNAL MAY VARY OR REVOKE TRIBUNAL ORDER  
Subject to this Act, a power of the Tribunal to make an order includes the power to revoke or vary the order.

Subdivision C - Dispute resolution processes  

Tribunal may refer to dispute resolution process  
General rules

87(1)    
At any time during a proceeding, the Tribunal may, by order:

(a)    direct that the proceeding, or any part of or matter arising out of the proceeding, be referred to a dispute resolution process; and

(b)    direct any of the following persons to conduct the dispute resolution process:

(i)a member;

(ii) a registrar;

(iii) a person engaged under subsection 90(1).

Note:

A non-participating party to the proceeding or a Tribunal case event of that kind is not required to appear at the dispute resolution process unless the Tribunal orders the party to do so under section 63.

87(2)    
The parties to the proceeding appearing at the dispute resolution process must act in good faith in relation to the conduct of the dispute resolution process.

Exception - guidance and appeals panel proceedings

87(3)    
Despite subsection (1), the Tribunal must not direct that a guidance and appeals panel proceeding, or any part of or matter arising out of a guidance and appeals panel proceeding, be referred to a dispute resolution process other than conferencing.

SECTION 88   EVIDENCE IN DISPUTE RESOLUTION PROCESS NOT ADMISSIBLE ELSEWHERE  
General rule

88(1)    
Evidence of anything said, any act done or any information disclosed at or for the sole purpose of a dispute resolution process is not admissible:

(a)    in a proceeding in the Tribunal; or

(b)    in any court; or

(c)    in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory to hear evidence; or

(d)    in any proceedings before a person authorised by the consent of the parties to hear evidence.

Exception - agreement of parties

88(2)    
Subsection (1) does not prevent the admission, at a proceeding in the Tribunal, of particular evidence if each party to the proceeding to which the dispute resolution process relates (other than a non-participating party to that dispute resolution process or that proceeding) agrees to the evidence being admitted.

Exception - certain reports admissible

88(3)    
Subsection (1) does not prevent the admission, at a proceeding in the Tribunal, of a report prepared by a person conducting a dispute resolution process in the form of a neutral evaluation.

88(4)    
However, subsection (3) does not apply if, before the start of the hearing of the proceeding, a party to the proceeding to which the dispute resolution process relates notifies the Tribunal that the party objects to the report being admitted.

SECTION 89  

89   ELIGIBILITY OF PERSON CONDUCTING DISPUTE RESOLUTION PROCESS TO SIT AS A MEMBER  
A member of the Tribunal as constituted for the purposes of a proceeding must no longer take part in the proceeding if:

(a)    the member conducts a dispute resolution process in relation to the proceeding; and

(b)    a party to the proceeding notifies the Tribunal as soon as practicable after the dispute resolution process that the party objects to the member participating in the proceeding.

Note:

The President may reconstitute the Tribunal for the purposes of the proceeding (see sections 43 and 45).

SECTION 90   ENGAGEMENT OF PERSONS TO CONDUCT DISPUTE RESOLUTION PROCESSES  

90(1)    
The Principal Registrar may, on behalf of the Commonwealth, engage a person to conduct a kind of dispute resolution process.

90(2)    
The Principal Registrar must not engage a person under subsection (1) unless the Principal Registrar is satisfied, having regard to the person's qualifications and experience, that the person is a suitable person to conduct the relevant kind of dispute resolution process.

Division 7 - Public interest certificates and interventions  

SECTION 91   DISCLOSURE OF INFORMATION - PUBLIC INTEREST CERTIFICATE  
Public interest certificate - Attorney-General of the Commonwealth

91(1)    
The Attorney-General of the Commonwealth may certify, in writing, that the disclosure of specified information, or the content of a specified document, in a proceeding in the Tribunal would be contrary to the public interest for one or more of the following reasons:

(a)    the disclosure would prejudice the security, defence or international relations of the Commonwealth;

(b)    the disclosure would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet;

(c)    any other reason 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.

Public interest certificate - Attorney-General of State, Australian Capital Territory or Northern Territory

91(2)    
The Attorney-General of a State, the Australian Capital Territory or the Northern Territory may certify, in writing, that the disclosure of specified information, or of the content of a specified document, in a proceeding in the Tribunal would be contrary to the public interest for one or more of the following reasons:

(a)    the disclosure would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State or Territory;

(b)    any other reason that could form the basis for a claim by the Crown in right of the State or Territory in a judicial proceeding that the information or the matter contained in the document should not be disclosed.

Effect of certificate

91(3)    
If a certificate is given under this section in relation to information or a document in relation to a proceeding, a person is not excused from disclosing the information, or giving the document, to the Tribunal for the purposes of the proceeding if the person is required by or under this Act to do so.

91(4)    
However, the Tribunal must do all things necessary to ensure that:

(a)    subject to subsection (6), the information or document is not disclosed or given to any person other than:

(i) a member in the course of the performance of the member's duties; or

(ii) the Principal Registrar in the course of the performance of the Principal Registrar's duties; or

(iii) a staff member in the course of the performance of the staff member's duties; and

(b)    in the case of a document given to the Tribunal - the document is returned, to the person who gave it to the Tribunal, as soon as practicable after the Tribunal has finished considering the document.

91(5)    
A certificate under subsection (1) or (2) is not a legislative instrument.

Tribunal may allow disclosure in limited cases

91(6)    
The Tribunal may decide to make the information or document available to any or all of the parties to the proceeding if either of the following applies:

(a)    the certificate was given by the Attorney-General of the Commonwealth other than for the reason set out in paragraph (1)(a) or (b);

(b)    the certificate was given by the Attorney-General of a State or Territory other than for the reason set out in paragraph (2)(a).

91(7)    
In deciding whether to make the information or document available, the Tribunal must:

(a)    take into account as a primary consideration the principle that it is desirable, in the interest of ensuring the effective performance of the Tribunal's functions, for the parties to the proceeding to be made aware of all relevant matters; and

(b)    have regard to any reason specified in the certificate.

91(8)    
For the purposes of making a decision under subsection (6), the Tribunal must be constituted:

(a)    as if the making of the decision were a separate proceeding; and

(b)    by a member who is, or by members at least one of whom is, a Judge or a Deputy President.

Exclusion of other laws

91(9)    
This section excludes the operation of any law that relates to the public interest and would otherwise apply in relation to the disclosure of information, or of the content of documents, in a proceeding in the Tribunal.

SECTION 92   ATTORNEY-GENERAL MAY INTERVENE FOR PUBLIC INTEREST REASONS  
Attorney-General may intervene

92(1)    
If a person is asked a question in the course of giving evidence at the hearing of a proceeding in the Tribunal:

(a)    the Attorney-General of the Commonwealth may inform the Tribunal that, in the opinion of the Attorney-General, the answering of the question would be contrary to the public interest for a reason mentioned in subsection 91(1); or

(b)    the Attorney-General of a State, the Australian Capital Territory or the Northern Territory may inform the Tribunal that, in the opinion of the Attorney-General, the answering of the question would be contrary to the public interest for a reason mentioned in subsection 91(2).

General rule

92(2)    
If an Attorney-General so informs the Tribunal, the person is excused from answering the question.

Exceptions

92(3)    
However, the person must answer the question if:

(a)    for a reason covered by paragraph 91(1)(c) or (2)(b) - the Tribunal decides that the answering of the question would not be contrary to the public interest; or

(b)    in any case - the Federal Court, on an appeal under section 172 or a reference under section 185, decides that answering the question would not be contrary to the public interest.

92(4)    
For the purposes of making a decision under paragraph (3)(a), the Tribunal must be constituted:

(a)    as if the making of the decision were a separate proceeding; and

(b)    by a member who is, or by members at least one of whom is, a Judge or a Deputy President.

SECTION 93   ATTORNEY-GENERAL IS PARTY TO PROCEEDING  
Public interest certificates

93(1)    
The Attorney-General of the Commonwealth or of a State, the Australian Capital Territory or the Northern Territory is a party to a proceeding in the Tribunal if:

(a)    that Attorney-General gives a certificate under section 91 in relation to the proceeding; and

(b)    the certificate does not specify a reason set out in paragraph 91(1)(a) or (b) or (2)(a); and

(c)    that Attorney-General would not otherwise be a party to the proceeding.

Attorney-General intervening

93(2)    
The Attorney-General of the Commonwealth or of a State, the Australian Capital Territory or the Northern Territory is taken to be a party to a proceeding in the Tribunal if that Attorney-General:

(a)    informs the Tribunal under subsection 92(1) that the answering of a question at the hearing of the proceeding would be contrary to the public interest; and

(b)    would not otherwise be a party to the proceeding.

SECTION 94   PUBLIC INTEREST DECISIONS MADE BY TRIBUNAL  
When this section applies

94(1)    
This section applies if, in relation to a proceeding (the primary proceeding ):

(a)    an Attorney-General certifies under section 91 that the disclosure of specified information, or the content of a specified document, would be contrary to the public interest; and

(b)    the Tribunal makes a decision (the public interest decision ) under subsection 91(6) in relation to the information, or the content of the document.

94(2)    
This section also applies if, in relation to a proceeding (the primary proceeding ):

(a)    an Attorney-General informs the Tribunal under section 92 that the answering of a question would be contrary to the public interest; and

(b)    the Tribunal makes a decision (the public interest decision ) under paragraph 92(3)(a) in relation to the answering of the question.

Tribunal must give reasons for decision

94(3)    
The Tribunal must, as soon as practicable after making the public interest decision, give each party to the primary proceeding a statement of reasons for the decision.

Appeals to Federal Court

94(4)    
For the purposes of section 172 (party may appeal), the public interest decision is to be treated as:

(a)    the decision of the Tribunal in a separate proceeding; and

(b)    made by the Tribunal constituted for the purposes of the public interest decision.

Referral to Federal Court

94(5)    
For the purposes of section 185 (referring questions of law), a question of law in relation to the public interest decision that is referred to the Federal Court is to be treated as:

(a)    a question arising in the primary proceeding; but

(b)    referred by the Tribunal constituted for the purposes of the public interest decision.

Division 8 - Decision  

Subdivision A - Withdrawing and dismissing applications  

SECTION 95   APPLICANT MAY WITHDRAW APPLICATION  

95(1)    
The applicant may, at any time, by:

(a)    giving written notice to the Tribunal; or

(b)    notifying the Tribunal in any other manner specified for the application in the practice directions;

withdraw an application made to the Tribunal.

95(2)    
If the applicant withdraws the application, the Tribunal is taken to have dismissed the application.

SECTION 96  

96   TRIBUNAL MAY DISMISS APPLICATION IF PARTIES CONSENT  
The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal has the consent of theparties to the proceeding in relation to the application (other than any non-participating party to the proceeding).

SECTION 97  

97   TRIBUNAL MUST DISMISS APPLICATION IF DECISION IS NOT REVIEWABLE DECISION  
The Tribunal must dismiss an application if:

(a)    the application is made for review of a decision; and

(b)    the Tribunal is satisfied that the decision is not reviewable by the Tribunal.

SECTION 98  

98   TRIBUNAL MAY DISMISS APPLICATION IF FEE IS NOT PAID  
The Tribunal may dismiss an application if a fee payable by the applicant to the Tribunal in respect of the application is not paid by the time prescribed by the rules.

SECTION 99  

99   TRIBUNAL MAY DISMISS APPLICATION IF APPLICANT DOES NOT APPEAR  
If:

(a)    the applicant fails to appear at a Tribunal case event that relates to a proceeding in relation to an application; and

(b)    the Tribunal is satisfied that the applicant received appropriate notice of the date, time and place of the Tribunal case event;

the Tribunal may dismiss the application.

Note 1:

Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in section 4).

Note 2:

For how to appear at a Tribunal case event, see section 73.

SECTION 100  

100   TRIBUNAL MAY DISMISS APPLICATION IF APPLICANT FAILS TO COMPLY WITH ORDER ETC.  
The Tribunal may dismiss an application made to the Tribunal if the applicant fails to do either of the following within a reasonable time:

(a)    proceed with the application;

(b)    comply with this Act or an order of the Tribunal in relation to the proceeding in relation to the application.

SECTION 101   TRIBUNAL MAY DISMISS APPLICATION IF FRIVOLOUS, VEXATIOUS ETC.  

101(1)    
The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:

(a)    is frivolous, vexatious, misconceived or lacking in substance; or

(b)    has no reasonable prospects of success; or

(c)    is otherwise an abuse of the process of the Tribunal.

101(2)    
If the Tribunal dismisses an application (the substantive application ) under subsection (1), the Tribunal may, on application by a party to the proceeding in relation to the substantive application or on its own initiative, order that the applicant for the substantive application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a specified kind or kinds.

101(3)    
The order has effect despite any other provision of this Act or any other Act.

SECTION 102   REINSTATEMENT OF APPLICATION  
When this section applies

102(1)    
This section applies if the Tribunal dismisses an application.

Note:

An application may be dismissed in specified circumstances (see sections 20, 84 and 96 to 101). In addition, an application is taken to have been dismissed if the applicant withdraws it (see section 95).

Tribunal may reinstate on own initiative

102(2)    
If the Tribunal considers that the application was dismissed in error, the Tribunal may on its own initiative reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

102(3)    
Despite subsection (2), the Tribunal must not reinstate an application under subsection (2) if the application was dismissed under section 96 (Tribunal may dismiss application if parties consent).

102(4)    
Despite subsection (2), if more than 28 days have passed since an application was dismissed, the Tribunal must not reinstate the application under subsection (2) unless the Tribunal is satisfied that special circumstances justify reinstating the application.

Party may apply for reinstatement if application dismissed in error

102(5)    
A party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application on the grounds of error within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).

102(6)    
If a party applies under subsection (5) and the Tribunal considers that the application was dismissed in error, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

Parties can apply for reinstatement in other specified circumstances

102(7)    
If the application is dismissed under:

(a)    section 95 (applicant may withdraw application); or

(b)    section 99 (Tribunal may dismiss application if applicant does not appear); or

(c)    section 100 (Tribunal may dismiss application if applicant fails to comply with order etc.);

a party to the proceeding in relation to the application may apply to the Tribunal for reinstatement of the application within 28 days after the party receives notice that the application is dismissed (or such longer period as the Tribunal, in special circumstances, allows).

102(8)    
However, the applicant cannot apply if the application is dismissed under section 95 (applicant may withdraw application).

102(9)    
If a party applies under subsection (7) and the Tribunal considers it appropriate to reinstate the application, the Tribunal may reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

Subdivision B - Decisions agreed by parties  

SECTION 103   IF PARTIES REACH AGREEMENT - REVIEW OF DECISIONS ONLY  
Tribunal may make decision agreed by parties

103(1)    
If, at any time:

(a)    the parties to a proceeding for review of a decision agree on the terms of a decision of the Tribunal:

(i) in the proceeding; or

(ii) in relation to a part of the proceeding; or

(iii) in relation to a 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 given to the Tribunal; and

(c)    if the terms of the agreement are signed in a dispute resolution process under Subdivision C of Division 6 - 7 days pass after the terms of the agreement are given to the Tribunal and none of the parties has notified the Tribunal in writing that the party 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 act in accordance with subsection (2) or (3).

Decision agreed by parties

103(2)    
If the agreement reached is an agreement on the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding or completing the hearing of the proceeding, make a decision in accordance with those terms.

Tribunal does not need to deal with agreed part or matter

103(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 (or further dealing) with that part or that matter at the hearing of the proceeding.

Variation or revocation of decision

103(4)    
The Tribunal may vary or revoke a decision in relation to a proceeding, to the extent the decision is made in accordance with subsection (2) or (3), if:

(a)    the parties to the proceeding 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 given to the Tribunal; and

(c)    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.

Subdivision C - Decision on review of reviewable decision  

SECTION 104  

104   WHEN THIS SUBDIVISION APPLIES  
This Subdivision applies in relation to an application for review of a reviewable decision.

SECTION 105  

105   TRIBUNAL DECISION ON REVIEW OF REVIEWABLE DECISION  
In relation to the reviewable decision, the Tribunal must make a decision:

(a)    affirming the reviewable decision; or

(b)    varying the reviewable decision; or

(c)    setting aside the reviewable decision and:

(i) making a decision in substitution for the reviewable decision; or

(ii) remitting the matter to the decision-maker for reconsideration in accordance with any orders or recommendations of the Tribunal.

SECTION 106   CIRCUMSTANCES IN WHICH TRIBUNAL MAY REACH DECISION WITHOUT HEARING - REVIEW OF DECISIONS ONLY  
Tribunal may make decision without hearing in certain circumstances

106(1)    
The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding if any of subsections (2) to (5) applies.

Parties consent

106(2)    
This subsection applies if:

(a)    all of the parties to the proceeding consent to the proceeding being determined without the hearing of the proceeding; and

(b)    it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

Where only parties are applicant and non-participating party to the proceeding or hearing

106(3)    
This subsection applies if:

(a)    the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and

(b)    either:

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and

(c)    it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

Party fails to comply

106(4)    
This subsection applies if:

(a)    a party to the proceeding fails to comply with this Act or an order of the Tribunal in relation to the proceeding within a reasonable time; and

(b)    it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

Party fails to appear

106(5)    
This subsection applies if:

(a)    a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and

(b)    the party is not a non-participating party to the proceeding or Tribunal case event; and

(c)    the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event; and

(d)    it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.

Note 1:

Tribunal case events include hearings, directions hearings and dispute resolution processes (see the definition of Tribunal case event in section 4).

Note 2:

For how to appear at a Tribunal case event, see section 73.

SECTION 107   WHEN TRIBUNAL'S DECISION ON REVIEW COMES INTO OPERATION  
General rule

107(1)    
A decision of the Tribunal in the proceeding in relation to the application comes into operation when it is given to the parties to the proceeding.

Exception - Tribunal specifies a later date

107(2)    
Despite subsection (1), if the Tribunal specifies in a decision that the decision comes into operation at a time after the decision is given to the parties, the decision comes into operation at the specified time.

Exception - Tribunal ordered stay of reviewable decision

107(3)    
Despite subsections (1) and (2), if an order under section 32 staying or otherwise affecting the operation of:

(a)    in any case - the reviewable decision; or

(b)    if the application is a guidance and appeals panel application taken to be made because of the referral of a decision of the Tribunal - the decision affirmed, varied or set aside by the decision of the Tribunal;

is in force immediately before the Tribunal makes a decision under section 105 (Tribunal decision on review of reviewable decision) on the application, the operation of the Tribunal's decision is stayed until:

(c)    if a relevant appeal is made - the later of the following:

(i) the end of the appeal period;

(ii) the completion of the relevant appeal; or

(d)    in any other case - the end of the appeal period.

107(4)    
For the purposes of paragraph (3)(c), do not take into account any relevant appeal that is made after the end of the period within which the relevantappeal may be made.

107(5)    
Subsection (3) does not apply if the Tribunal's decision is made in accordance with subsection 103(2) (decision agreed by parties).

Exception - Tribunal or court order

107(6)    
Despite subsection (3):

(a)    the Tribunal may order that a decision of the Tribunal comes into operation at a different time; and

(b)    the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may order that a decision of the Tribunal comes into operation at a different time.

Definitions

107(7)    
In this section:

completion
:

(a) the completion of a court appeal occurs when:

(i) in any case - the court appeal is determined, discontinued, dismissed or disposed of; or

(ii) if a panel appeal is also made and the President refers the Tribunal's decision to the guidance and appeals panel - the decision of the Tribunal on the guidance and appeals panel application taken to be made because of the referral comes into operation; and

(b) the completion of a panel appeal occurs when:

(i) if the President refers the Tribunal's decision to the guidance and appeals panel - the decision of the Tribunal on the guidance and appeals panel application taken to be made because of the referral comes into operation; or

(ii) in any other case - the panel appeal is refused.

court appeal
means an appeal from the Tribunal's decision to the Federal Court under Division 2 of Part 7 (appeals on questions of law).

end of the appeal period
means:

(a) if a panel appeal may be made - the later of the following:

(i) the end of the period within which court appeals may be made;

(ii) the end of the period within which panel appeals may be made; or

(b) in any other case - the end of the period within which court appeals may be made.

panel appeal
means an application to refer the Tribunal's decision to the guidance and appeals panel under section 123.

relevant appeal
means:

(a) if a panel appeal may be made - a court appeal or a panel appeal; or

(b) in any other case - a court appeal.

107(8)    
For the purposes of subsection (4) and the definition of end of the appeal period in subsection (7), take into account:

(a) any extension under section 125 of the period within which panel appeals may be made that occurs before the period would otherwise expire; and

(b) any extension under subsection 174(2) of the period within which court appeals may be made that occurs before the period would otherwise expire.

SECTION 108   EFFECT OF TRIBUNAL DECISION TO VARY OR SUBSTITUTE A REVIEWABLE DECISION  
When this section applies

108(1)    
This section applies if the Tribunal:

(a)    varies the reviewable decision; or

(b)    sets aside the reviewable decision and makes a decision in substitution for the reviewable decision.

Decision is taken to be decision of decision-maker

108(2)    
The reviewable decision as varied, or the decision made in substitution for the reviewable decision, is taken be a decision of the decision-maker for all purposes other than:

(a)    section 16 (decision is taken to be made if timeframe expires); or

(b)    Division 3 of Part 3 (applying for review of decision); or

(c)    Divisions 2 and 4 of Part 7 (appeals and references of questions of law to Federal Court); or

(d)    Part 10 (notice and information about administrative decision).

No application for review of varied or substituted decision

108(3)    
Application may not be made to the Tribunal for review of the reviewable decision as varied or the decision made in substitution for the reviewable decision.

Note 1:

In some circumstances, application may be made to refer to the guidance and appeals panel a decision of the Tribunal to affirm, vary or set aside a decision (see section 123).

Note 2:

This subsection does not apply in relation to ART social services decisions (see Part 5A).

Timing

108(4)    
When the decision of the Tribunal to vary or set aside the reviewable decision comes into operation, the reviewable decision as varied, or the decision made in substitution for the reviewable decision, has effect, or is taken to have had effect, from the time at which the reviewable decision has or had effect.

108(5)    
Subsection (4) does not apply if the Tribunal orders otherwise.

Division 9 - Tribunal guidance decisions  

SECTION 109   TRIBUNAL GUIDANCE DECISIONS  
General rule

109(1)    
A decision of the Tribunal is a Tribunal guidance decision if:

(a)    the decision is made by the Tribunal constituted for the purposes of a proceeding in accordance with:

(i) section 40 (exception - President refers application for review that raises issue of significance); or

(ii) section 41 (exception - President, on appeal, refers Tribunal decision that raises issue of significance); and

(b)    the decision is:

(i) made under section 105 (Tribunal decision on review of reviewable decision); and

(ii) not made in accordance with subsection 103(2) (decision agreed by parties); and

(c)    the decision is not declared under subsection (2) of this section to be an excluded decision.

Exception - declared by President

109(2)    
The President may, in writing, declare that a decision made under section 105 by the Tribunal constituted for the purposes of a proceeding in accordance with section 40 or 41 is an excluded decision.

109(3)    
A declaration made under subsection (2) is not a legislative instrument.

109(4)    
The President must publish declarations made under subsection (2).

SECTION 110   TRIBUNAL MUST HAVE REGARD TO TRIBUNAL GUIDANCE DECISIONS  
General rule

110(1)    
When making a decision in a proceeding in the Tribunal, the Tribunal must have regard to Tribunal guidance decisions that the Tribunal considers raise:

(a)    facts similar to the facts raised by the proceeding; or

(b)    issues similar to the issues raised by the proceeding.

Exception - member who is a Judge

110(2)    
Subsection (1) does not apply to:

(a)    a member who is a Judge; or

(b)    the Tribunal constituted for the purposes of a proceeding by a member who is, or members at least one of whom is, a Judge.

Effect of failure to comply

110(3)    
A failure by the Tribunal to comply with subsection (1) does not affect the validity of the decision.

Division 10 - After proceeding ends  

SECTION 111   NOTICE OF DECISION AND STATEMENT OF REASONS - REVIEW OF REVIEWABLE DECISION  
When this section applies

111(1)    
This section applies if the Tribunal makes a decision under section 105 in a proceeding for review of a reviewable decision, other than a decision made in accordance with subsection 103(2) (decision agreed by parties).

General rules - Tribunal must give decision and statement of reasons

111(2)    
The Tribunal must give each party to the proceeding the following things in writing:

(a)    the Tribunal's decision;

(b)    a statement of reasons for the Tribunal's decision;

(c)    if the party has a right to apply to refer a decision of the Tribunal to the guidance and appeals panel under Division 3 of Part 5 - notice of that right;

(ca)    if the party has a right to apply for second review of the Tribunal's decision under Part 5A - notice of that right;

(d)    notice of the right of the party to appeal to the Federal Court under Division 2 of Part 7.

111(3)    
Each thing must be given by the time specified in the practice directions. If the practice directions do not specify a time, the thing must be given within 28 days after the day the Tribunal's decision is made.

111(4)    
The Tribunal may give a decision and the reasons for the decision orally before giving them in writing.

111(4A)    
A failure by the Tribunal to provide the things mentioned in paragraphs (2)(c) to (d) by the time required by subsection (3) does not affect the validity of the Tribunal's decision.

Exceptions

111(5)    
This section is subject to sections 70 (Tribunal may restrict publication or disclosure of information) and 91 (disclosure of information - public interest certificate).

SECTION 112   NOTICE OF DECISION AND STATEMENT OF REASONS - OTHER PROCEEDINGS  
When this section applies

112(1)    
This section applies if the Tribunal makes a decision finalising a proceeding in the Tribunal, other than:

(a)    a public interest decision mentioned in subsection 94(1) or (2) (public interest decisions made by Tribunal); or

(b)    a decision under section 96 (Tribunal may dismiss application if parties consent); or

(c)    a decision under subsection 103(2) (decision agreed by parties); or

(d)    a decision under section 105 (Tribunal decision on review of reviewable decision).

112(2)    
To avoid doubt, this section does not apply in relation to a decision under section 128 (President decides whether to refer Tribunal decision to guidance and appeals panel).

Notice of decision

112(3)    
The Tribunal must give each party to the proceeding notice of the Tribunal's decision orally or in writing.

General rule - Tribunal must give statement of reasons on request

112(4)    
The Tribunal may give reasons for the Tribunal's decision to the parties to the proceeding orally or by giving a statement of reasons for the decision.

112(5)    
If the Tribunal has not given a party to the proceeding a statement of reasons for the Tribunal's decision, the party may, within 28 days after the day the Tribunal's decision is made, request the Tribunal to give the party a statement of reasons for the Tribunal's decision.

112(6)    
The request must be given to the Tribunal in writing.

112(7)    
Within 28 days after receiving the request, the Tribunal must give the party a statement of reasons for the Tribunal's decision.

Exception

112(8)    
This section is subject to sections 70 (Tribunal may restrict publication or disclosure of information) and 91 (disclosure of information - public interest certificate).

SECTION 113   TRIBUNAL MAY PUBLISH DECISIONS  
General rules

113(1)    
The Tribunal may publish its decisions and the reasons for them.

113(2)    
The Tribunal must publish a decision (and the reasons for it) if:

(a)    the President considers that the decision:

(i) involves a significant conclusion of law; or

(ii) has significant implications for Commonwealth policy or administration; or

(b)    the decision is:

(i) made by the Tribunal constituted for the purposes of a proceeding by the guidance and appeals panel; and

(ii) made under section 105 (Tribunal decision on review of reviewable decision); and

(iii) not made in accordance with subsection 103(2) (decision agreed by parties).

113(3)    
Publication of Tribunal decisions, and the reasons for them, must be in accordance with any requirements specified in the practice directions.

Exception - where disclosure prohibited or restricted by law

113(4)    
However, this section does not authorise the Tribunal to publish information thedisclosure of which is prohibited or restricted by or under this Act, another Act or an instrument made under an Act.

Note:

The disclosure of information may be prohibited or restricted by Tribunal order under section 70. For example, while the Tribunal can publish reasons for a decision in a proceeding that was not heard in public, the reasons cannot include information covered by a Tribunal order under section 70.

SECTION 114   TRIBUNAL MAY CORRECT ERROR IN DECISION OR STATEMENT OF REASONS  

114(1)    
If, after the Tribunal makes a decision, the Tribunal considers that there is an obvious error in the text of:

(a)    the decision; or

(b)    the statement of reasons for the decision;

the Tribunal may alter the text of the decision or statement.

Note:

The following are examples of obvious errors in the text of a decision or statement:

(a) an obvious clerical or typographical error in the text of the decision or statement;

(b) an inconsistency between the decision and the statement of reasons for the decision.

114(2)    
If the text of a decision is altered under subsection (1), the altered text is taken to be the decision. If the text of a statement is altered under subsection (1), the altered text is taken to be the statement.

SECTION 115   TAXING COSTS  
When this section applies

115(1)    
This section applies if the Tribunal orders a party to a proceeding in the Tribunal to pay costs incurred by another party to the proceeding.

Note:

The Tribunal's power to order a party to a proceeding to pay costs is set out in other legislation.

Party may apply for costs to be taxed

115(2)    
If the parties cannot agree on the amount of the costs, the Tribunal may, on application by either party, tax the costs.

Amounts are recoverable as debts

115(3)    
An amount that a party (the first party ) is ordered by the Tribunal to pay to another party (the second party ) is recoverable by the second party as a debt due to the second party by the first party.

Division 11 - Offences  

SECTION 116   OFFENCE - FAILURE TO COMPLY WITH SUMMONS  

116(1)    
A person commits an offence if:

(a)    the person is given a summons under section 74; and

(b)    the person fails to comply with the summons.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

116(2)    
Subsection (1) does not apply if it is not reasonably practicable for the person to comply with the summons by the time specified in the summons or within such further period as the Tribunal allows.

Note:

A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

SECTION 117  

117   OFFENCE - FAILURE TO TAKE OATH, MAKE AFFIRMATION OR ANSWER QUESTION  
A person appearing before the Tribunal to give evidence at the hearing of a proceeding or a directions hearing in relation to a proceeding commits an offence if the person:

(a)    fails to take an oath or make an affirmation when required to do so (see section 76); or

(b)    fails to answer a question that the Tribunal requires the person to answer.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

SECTION 118   OFFENCE - GIVING FALSE OR MISLEADING EVIDENCE  

118(1)    
A person appearing before the Tribunal to give evidence commits an offence if the person:

(a)    gives evidence; and

(b)    does so knowing that the evidence:

(i) is false or misleading; or

(ii) omits any matter or thing without which the evidence is misleading.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note:

Giving false testimony is also subject to the offence under section 35 of the Crimes Act 1914.

118(2)    
Subsection (1) does not apply if the evidence is not false or misleading in a material particular.

Note:

A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).

SECTION 119  

119   OFFENCE - BREACH OF NON-PUBLICATION OR NON-DISCLOSURE ORDER  
A person commits an offence if:

(a)    the person engages in conduct; and

(b)    the conduct contravenes an order under section 70 (Tribunal may restrict publication or disclosure of information) or subsection 157(3) (orders restricting publication or disclosure of findings).

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

SECTION 120   OFFENCE - CONTEMPT OF TRIBUNAL  

120(1)    
A person commits an offence if:

(a)    the person engages in conduct; and

(b)    the conduct obstructs or hinders the Tribunal or an authorised person in the performance of the functions of the Tribunal.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

120(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.

PART 5 - GUIDANCE AND APPEALS PANEL  

Division 1 - Preliminary  

SECTION 121  

121   SIMPLIFIED OUTLINE OF THIS PART  
 

Division 2 - President may refer application on own initiative  

SECTION 122   PRESIDENT MAY REFER APPLICATION FOR REVIEW OF DECISION TO GUIDANCE AND APPEALS PANEL  

122(1)    
If:

(a)    an application for review of a decision is made to the Tribunal (other than a guidance and appeals panel application); and

(b)    the President is satisfied that:

(i) the application raises an issue of significance to administrative decision-making; and

(ii) it is appropriate in the interests of justice that the Tribunal be constituted by the guidance and appeals panel for the purposes of the proceeding in relation to the application;

the President may refer the application to the guidance and appeals panel.

Note 1:

The Tribunal will be constituted by the guidance and appeals panel for the purposes of the proceeding (see section 40).

Note 2:

If the Tribunal is already constituted for the purposes of the proceeding, it may be reconstituted (see sections 43 and 47).

122(2)    
For the purposes of subparagraph (1)(b)(ii), the President must have regard to the circumstances of the parties to the proceeding.

Division 3 - Party may apply to refer Tribunal decision to guidance and appeals panel  

Subdivision A - Application for referral to guidance and appeals panel  

SECTION 123   APPLICATION MAY BE MADE TO REFER CERTAIN TRIBUNAL DECISIONS TO GUIDANCE AND APPEALS PANEL  
General rule

123(1)    
Application may be made to the President to refer a decision of the Tribunal under section 105 (Tribunal decision on review of reviewable decision) to the guidance and appeals panel.

Note:

If the President refers a Tribunal decision to the guidance and appeals panel, the Tribunal will be constituted by the guidance and appeals panel for the purposes of the proceeding (see sections 41 and 42).

123(2)    
An application may be made under subsection (1) by a person who was at any time a party to the proceeding in which the decision of the Tribunal is made.

123(3)    
To avoid doubt, the decision of the Tribunal is not a reviewable decision.

Note:

If the President refers a Tribunal decision to the guidance and appeals panel, the review relates to the decision affirmed, varied or set aside by the Tribunal decision (see subsection 130(2)).

Exception - Tribunal decision made by guidance and appeals panel or Judge

123(4)    
Subsection (1) does not apply in relation to a decision made by the Tribunal constituted for the purposes of a proceeding by:

(a)    the guidance and appeals panel; or

(b)    a member who is, or members at least one of whom is, a Judge.

Exception - decision by agreement of parties

123(5)    
Subsection (1) does not apply if the decision is made in accordance with subsection 103(2) (decision agreed by parties).

Exception - decision of a kind prescribed by the rules

123(6)    
Subsection (1) does not apply in relation to a decision of a kind prescribed by the rules.

SECTION 124   HOW TO APPLY  
Manner of applying

124(1)    
An application to refer a decision of the Tribunal to the guidance and appeals panel may be made in writing or in any other manner specified for the application in the practice directions.

Information to include

124(2)    
An application by a person to refer a decision of the Tribunal to the guidance and appeals panel must:

(a)    include the information specified for the application in the practice directions; and

(b)    explain why the person considers that:

(i) the decision raises an issue of significance to administrative decision-making; or

(ii) the decision may contain an error of fact or law materially affecting the decision.

124(3)    
A failure to comply with subsection (2) does not affect the validity of the application.

124(4)    
Without limiting section 128, the President may refuse the application if the application does not comply with subsection (2) of this section.

SECTION 125  

125   WHEN TO APPLY TO REFER TRIBUNAL DECISION  
An application to refer a decision of the Tribunal to the guidance and appeals panel must be made within the period of 28 days after the Tribunal gives a statement of reasons for the decision to the parties to the proceeding in which the decision is made (or such longer period as the President, in special circumstances, allows).

Subdivision B - After application to refer decision is made  

SECTION 126   PARTIES TO BE NOTIFIED OF APPLICATION  

126(1)    
This section applies if an application is made to refer a decision of the Tribunal (the Tribunal decision ) to the guidance and appeals panel.

126(2)    
The Tribunal must give written notice of the application to the following:

(a)    the applicant;

(b)    the decision-maker for the decision affirmed, varied or set aside by the Tribunal decision;

(c)    any other party to the proceeding in which the Tribunal decision is made.

SECTION 127   TRIBUNAL DECISION CONTINUES TO OPERATE UNLESS TRIBUNAL ORDERS OTHERWISE  
General rule

127(1)    
The making of an application (the referral application ) to refer a decision of the Tribunal (the Tribunal decision ) to the guidance and appeals panel does not affect the operation of the Tribunal decision or prevent the taking of action to implement the Tribunal decision.

Exception - Tribunal may stay operation or implementation

127(2)    
However, on application by a party to the proceeding in which the Tribunal decision is made, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the Tribunal decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the referral application.

127(3)    
The order is subject to any conditions specified in the order.

127(4)    
The order has effect until:

(a)    if the President refers the Tribunal decision - 14 days after the President refers the Tribunal decision; or

(b)    in any other case - the Tribunal refuses the referral application.

Note:

If the President refers the Tribunal decision, an application is taken to be made for review of a reviewable decision (see subsection 130(2)). The Tribunal may stay the operation or implementation of the reviewable decision for the purpose of ensuring the effectiveness of the review (see section 32).

127(5)    
Despite subsection (4), if:

(a)    the order states that it applies for a period; and

(b)    the period ends before the time the order would cease to have effect under subsection (4) if the period were not stated;

the order has effect until the end of the period.

127(6)    
The Tribunal may, by order, vary or revoke the order on application by a party to the proceeding in which the Tribunal decision is made.

Preconditions to making, varying or revoking an order

127(7)    
The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of the Tribunal decision unless:

(a)    the Tribunal has given the parties to the proceeding in which the Tribunal decision is made a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and

(b)    the Tribunal has taken into account the interests of any person who may be affected by the decision affirmed, varied or set aside by the Tribunal decision.

127(8)    
However, paragraph (7)(a) does not prevent the Tribunal making, varying or revoking an order without giving a party an opportunity to make a submission to the Tribunal if the Tribunal is satisfied that it is not practicable to give the party the opportunity.

127(9)    
If the Tribunal makes, varies or revokes an order without giving a party an opportunity to make a submission as mentioned in subsection (8), the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party.

SECTION 128   PRESIDENT DECIDES WHETHER TO REFER TRIBUNAL DECISION TO GUIDANCE AND APPEALS PANEL  
President's decision

128(1)    
If a person applies to refer a decision of the Tribunal (the Tribunal decision ) to the guidance and appeals panel, the President may refer the Tribunal decision to the guidance and appeals panel or refuse the application.

Requirements for decision

128(2)    
The President may refer the Tribunal decision to the guidance and appeals panel if the President is satisfied that:

(a)    the Tribunal decision raises an issue of significance to administrative decision-making; or

(b)    the Tribunal decision may contain an error of fact or law materially affecting the Tribunal decision.

128(3)    
However, the President must not refer the Tribunal decision to the guidance and appeals panel in any of the following circumstances:

(a)    a fee payable in relation to the application is not paid by the time prescribed by the rules;

(b)    a circumstance prescribed by the rules.

128(4)    
In deciding whether to refer the Tribunal decision to the guidance and appeals panel or refuse the application under this section, the President must have regard to:

(a)    the circumstances of the parties to the proceeding in which the Tribunal decision is made; and

(b)    any other matters that thePresident considers relevant.

128(5)    
To avoid doubt, the President is not required to refer any decision of the Tribunal to the guidance and appeals panel.

SECTION 129   NOTICE OF PRESIDENT'S DECISION  

129(1)    
This section applies if:

(a)    a person applies to refer a decision of the Tribunal (the Tribunal decision ) to the guidance and appeals panel; and

(b)    the President decides to refer the Tribunal decision to the guidance and appeals panel or refuse the application.

129(2)    
The President must give notice of the President's decision orally or in writing to the following:

(a)    the person;

(b)    the decision-maker for the decision affirmed, varied or set aside by the Tribunal decision;

(c)    any other party to the proceeding in which the Tribunal decision is made.

Subdivision C - Review after Tribunal decision is referred to guidance and appeals panel  

SECTION 130   APPLICATION FOR REVIEW PROCEEDS IF PRESIDENT REFERS TRIBUNAL DECISION TO GUIDANCE AND APPEALS PANEL  
When this section applies

130(1)    
This section applies if the President refers to the guidance and appeals panel under section 128 a decision made by the Tribunal (the Tribunal decision ) to affirm, vary or set aside a decision (the original decision ).

Applicant is taken to have applied for review of decision

130(2)    
The person who applied to refer the Tribunal decision to the guidance and appeals panel is taken to have applied to the Tribunal for review of the following decision:

(a)    if the Tribunal decision is to affirm the original decision - the original decision;

(b)    if the Tribunal decision is to vary the original decision - the original decision as varied (an updated decision );

(c)    if the Tribunal decision is to set aside the original decision and make a new decision in substitution for it - the new decision (also an updated decision );

(d)    if the Tribunal decision is to set aside the original decision and remit the matter to the decision-maker for reconsideration - the original decision.

Note 1:

The decision-maker for the original decision is the decision-maker for the purposes of the review (see section 108).

Note 2:

The Tribunal will be constituted by the guidance and appeals panel for the purposes of the proceeding for the review (see sections 41 and 42).

Parties to Tribunal decision proceeding are parties to review proceeding

130(3)    
In addition to the persons who are parties to the proceeding for the review under section 22, any other party to the proceeding in which the Tribunal decision is made is a party to the proceeding for the review.

130(4)    
Subsection (3) is subject to section 65 (certain parties may seek to withdraw from being a party) and 83 (Tribunal may remove party from proceeding if party fails to appear or does not comply).

This Act applies differently in relation to the review

130(5)    
The following provisions do not apply in relation to an updated decision:

(b)    section 24 (decision-maker must give Tribunal additional statement if Tribunal requires - general rule);

(c)    Part 10 (notice and information about administrative decision).

130(6)    
The following provisions do not apply in relation to a guidance and appeals panel application:

(aa)    Division 3 of Part 3 (applying for review of decision);

(a)    section 21 (parties and potential parties to be notified of application);

(b)    section 23 (decision-maker must give reasons and documents to Tribunal - general rule).

130(7)    
This Act applies in relation to an updated decision or a guidance and appeals panel application subject to any modifications prescribed by the regulations.

SECTION 131  

131   TRIBUNAL MAY HAVE REGARD TO RECORDS AND DOCUMENTS FROM EARLIER PROCEEDING  
In a proceeding in relation to a guidance and appeals panel application taken to be made because the President refers a decision of the Tribunal to the guidance and appeals panel, the Tribunal may have regard to:

(a)    any record of the proceeding (the earlier proceeding ) in which the decision of the Tribunal is made (including a record of any evidence taken in the earlier proceeding); and

(b)    any document or thing relating to the earlier proceeding given to the Tribunal; and

(c)    any order or recommendation of the Tribunal in the earlier proceeding.

PART 5A - SECOND REVIEW FOR CERTAIN SOCIAL SERVICES DECISIONS  

Division 1 - Preliminary  

SECTION 131A  

131A   SIMPLIFIED OUTLINE OF THIS PART  

SECTION 131B  

131B   HOW THIS PART APPLIES  
This Part applies despite subsection 108(3) (no application for review of varied or substituted decision).

SECTION 131C  

131C   MEANING OF ELIGIBLE SOCIAL SERVICES DECISION  
Each of the following is an eligible social services decision :

(a)    a reviewable decision made under the A New Tax System (Family Assistance) Act 1999;

(b)    a reviewable decision made under the A New Tax System (Family Assistance) (Administration) Act 1999, other than a child care provider decision (within the meaning of that Act);

(c)    a decision under section 92 of the Child Support (Registration and Collection) Act 1988 to refuse an extension application;

(d)    a reviewable decision made under the Child Support (Registration and Collection) Act 1988 that is a care percentage decision (within the meaning of that Act);

(e)   a decision under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 to make, or not to make, a determination;

(f)    a reviewable decision made under the Paid Parental Leave Act 2010 that is a claimant decision (within the meaning of that Act);

(g)    a reviewable decision made under the Social Security Act 1991;

(h)    a reviewable decision made under the Social Security (Administration) Act 1999;

(i)    a reviewable decision made under the Student Assistance Act 1973.

Division 2 - General rules for second review  

SECTION 131D   WHO CAN APPLY  

131D(1)    
A person whose interests are affected by an ART social services decision may apply to the Tribunal for review (the second review ) of the decision.

131D(2)    
However, an application cannot be made for second review if the ART social services decision was made in accordance with subsection 103(2) (decision agreed by parties).

131D(3)    
An ART social services decision is:

(a)    for an eligible social services decision that has been affirmed by the Tribunal - the decision as affirmed; or

(b)    for an eligible social services decision that has been varied by the Tribunal - the decision as varied; or

(c)    for an eligible social services decision that has been set aside and remade by the Tribunal - the decision as remade; or

(d)    for an eligible social services decision that has been set aside and remitted to the decision-maker by the Tribunal - the decision as set aside; or

(e)    for an eligible social services decision made under section 92 or subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 - the decision as made.

SECTION 131E   OPERATION OF THIS ACT AND OTHER LAWS  

131E(1)    
This Act applies in relation to an ART social services decision as if the decision were a reviewable decision.

131E(2)    
If the review of an eligible social services decision under this Act was subject to provisions with a contrary intention in another Act, any second review relating to the decision is subject to those provisions in the same way.

131E(3)    
This section has effect subject to:

(a)    the modifications set out in Division 3; and

(b)    any modifications of this Act prescribed by the regulations for the purposes of second review.

Division 3 - Modifications for second review  

SECTION 131F  

131F   REFERENCES TO THE DECISION-MAKER  
A reference in this Act, as it would apply for the purposes of second review, to the decision-maker for an ART social services decision is taken to be a reference to the decision-maker for the related eligible social services decision.

SECTION 131G  

131G   GIVING REASONS AND DOCUMENTS TO TRIBUNAL  
Section 23 (decision-maker must give reasons and documents to Tribunal - general rule) does not apply in relation to an application for second review.

SECTION 131H  

131H   WHO CAN APPLY- CLAIMANT DECISIONS  
Despite section 17 (who can apply), an application for second review in relation to a claimant decision (within the meaning of the Paid Parental Leave Act 2010) may not be made by a person in the person's capacity as an employer.

SECTION 131J   WHEN TO APPLY  

131J(1)    
Despite a contrary intention in any other law, an application for second review must be made within the time prescribed under section 18 (when to apply - general rule).

131J(2)    
However, an application for second review of a child care decision (within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999) about an individual's entitlement to be paid CCS for a week may also be made after the time prescribed under section 18 (when to apply - general rule) if the application is made:

(a)    because of a review, by the Commissioner of Taxation, of a previous decision by the Commissioner about the taxable income of the individual or another person in relation to whom the individual has met the CCS reconciliation conditions for the income year in which the CCS fortnight that includes the week starts; and

(b)    within the time prescribed under that section after the individual or other person was notified by the Commissioner of the outcome of the review.

SECTION 131K   PARTIES TO PROCEEDING  

131K(1)    
The parties to a proceeding for second review include the persons who were parties to the proceeding for review of the related eligible social services decision.

131K(2)    
However, subsection (1) has effect subject to:

(a)    section 65 (certain parties may seek to withdraw from being a party); and

(b)    section 83 (Tribunal may remove party from proceeding if party fails to appear or does not comply).

SECTION 131L   LIMITS ON APPLYING TO BECOME A PARTY TO PROCEEDING - CLAIMANT DECISIONS  

131L(1)    
This section applies to a proceeding for a second review that relates to a claimant decision (within the meaning of the Paid Parental Leave Act 2010).

131L(2)    
Despite paragraph 22(1)(c), a person may not apply to be a party to the proceeding in the person's capacity as an employer.

SECTION 131M  

131M   DECISION CANNOT BE ALTERED OUTSIDE TRIBUNAL PROCESS  
Despite a contrary intention in any other law, section 31 (decision cannot be altered outside Tribunal process) has effect in relation to a second review.

SECTION 131N  

131N   NO AUTOMATIC ELECTION NOTICE FOR DECISION-MAKER  
Despite a contrary intention in any other law, a decision-maker is not taken to have given the Tribunal an election notice in relation to a second review.

SECTION 131P  

131P   TRIBUNAL MAY HAVE REGARD TO RECORDS AND DOCUMENTS FROM EARLIER PROCEEDING  
In a proceeding for second review, the Tribunal may have regard to:

(a)    any record of the proceeding (the earlier proceeding ) in which the ART social services decision was made (including a record of any evidence taken in the earlier proceeding); and

(b)    any document or thing relating to the earlier proceeding given to the Tribunal; and

(c)    any order or recommendation of the Tribunal in the earlier proceeding.

SECTION 131Q   CARE PERCENTAGE DETERMINATIONS REVIEWED UNDER OTHER ACTS  
Family assistance care percentage decisions

131Q(1)    
Section 123 of the A New Tax System (Family Assistance) (Administration) Act 1999 does not apply in relation to a second review of a family assistance care percentage decision.

131Q(2)    
If:

(a)    the Tribunal has reviewed an ART social services decision made on review of a decision on application referred to in section 89 of the Child Support (Registration and Collection) Act 1988; and

(b)    the review of the ART social services decision involved (wholly or partly) a review of a determination to which a family assistance care percentage decision relates;

then, despite section 54 of this Act, the Tribunal must not, on second review of the family assistance care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).

Child support care percentage decisions

131Q(3)    
Section 95M of the Child Support (Registration and Collection) Act 1988 does not apply in relation to a second review of a child support care percentage decision.

131Q(4)    
If:

(a)    the Tribunal has reviewed an ART social services decision made on review of a decision on application referred to in section 111 of the A New Tax System (Family Assistance) (Administration) Act 1999; and

(b)    the review of the ART social services decision involved (wholly or partly) a review of a determination to which a child support care percentage decision relates;

then, despite section 54 of this Act, the ART must not, on second review of the child support care percentage decision, vary or substitute the decision in a way that would have the effect of varying or substituting the determination referred to in paragraph (b).

Definitions

131Q(5)    
In this section:

child support care percentage decision
means a care percentage decision within the meaning of the Child Support (Registration and Collection) Act 1988.

family assistance care percentage decision
means a care percentage decision within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999.

SECTION 131R  

131R   DATE OF EFFECT PROVISIONS  
The following provisions do not apply in relation to second review:

(a)    section 125 of the A New Tax System (Family Assistance) (Administration) Act 1999;

(b)    section 95N of the Child Support (Registration and Collection) Act 1988.

SECTION 131S   TREATING EVENTS AS HAVING OCCURRED  

131S(1)    
Paragraph 127(a) of the A New Tax System (Family Assistance) (Administration) Act 1999 has effect as if the reference in that paragraph to ART review of a decision included a reference to second review of an ART social services decision made on ART review.

131S(2)    
Paragraph 183(a) of the Social Security (Administration) Act 1999 has effect as if the reference in that paragraph to ART review of a decision included a reference to second review of an ART social services decision made on ART review.

131S(3)    
Paragraph 319(a) of the Student Assistance Act 1973 has effect as if the reference in that paragraph to ART review of a decision included a reference tosecond review of an ART social services decision made on ART review.

SECTION 131T  

131T   REMITTING DECISIONS FOR RECONSIDERATION  
Despite a contrary intention in any other law, section 85 (Tribunal may remit decision to decision-maker for reconsideration) applies in relation to a second review.

SECTION 131U  

131U   LEGAL OR FINANCIAL ASSISTANCE  
Despite a contrary intention in any other law (other than section 122 of the A New Tax System (Family Assistance) (Administration) Act 1999):

(a)    subsection 294(1) (legal or financial assistance for applicants) applies in relation to a person who applies, or proposes to apply, to the Tribunal for second review; and

(b)    subsection 294(3) (legal or financial assistance for other parties) applies in relation to a proceeding for second review; and

(c)    subsection 294(4) (legal or financial assistance for court proceedings) applies in relation to a matter that relates to a proceeding for second review.

SECTION 131V  

131V   OPERATION AND IMPLEMENTATION OF DECISION ON SECOND REVIEW  
Despite a contrary intention in any other law, subsection 32(2) (Tribunal may stay operation or implementation) applies in relation to a second review.

SECTION 131W  

131W   GUIDANCE AND APPEALS PANEL  
An application cannot be made under section 123 to refer any of the following to the guidance and appeals panel:

(a)    a decision of the Tribunal on review of an eligible social services decision;

(b)    a decision of the Tribunal on second review.

Note:

However, the President may, on the President's own initiative, refer an application for review of an eligible social services decision or for second review to the guidance and appeals panel under section 122.

SECTION 131X   TIME AND MANNER FOR MAKING APPEALS  

131X(1)    
This section applies:

(a)    if a person applies for second review of an ART social services decision; and

(b)    for the purposes of counting the 28 days mentioned in paragraph 174(1)(a), (b) or (c) within which an appeal to the Federal Court from the decision may be made.

131X(2)    
Do not take into account any day in the period between:

(a)    the day the application for second review is made; and

(b)    the day the person is given:

(i) notice under subsection 37(5) that the Tribunal has been constituted for the purposes of the second review; or

(ii) notice of a decision by the Tribunal that the person's interests are not affected by the ART social services decision.

PART 6 - PROCEEDINGS IN INTELLIGENCE AND SECURITY JURISDICTIONAL AREA  

Division 1 - Preliminary  

SECTION 132  

132   SIMPLIFIED OUTLINE OF THIS PART  
 

SECTION 133   HOW THIS PART APPLIES  
Interaction with other provisions

133(1)    
This Part:

(a)    applies despite any other provision of this Act, the regulations, the rules or the practice directions; but

(b)    unless this Part provides otherwise - does not limit the operation of any such provision to the extent that the provision is capable of operating concurrently with this Part.

133(2)    
To avoid doubt, this Part does not limit Division 6 of Part 7 (sending and disclosing documents).

Assessments to be treated as decisions

133(3)    
To avoid doubt, this Act applies in relation to criminal intelligence assessments, security assessments and security clearance suitability assessments as if:

(a)    those assessments were decisions; and

(b)    the making of those assessments were the making of decisions.

SECTION 134   PROCEEDINGS TO BE CONDUCTED IN INTELLIGENCE AND SECURITY JURISDICTIONAL AREA  
Reviews of intelligence and security decisions

134(1)    
The Tribunal's powers in relation to a proceeding that relates to an intelligence and security decision are to be exercised in the Intelligence and Security jurisdictional area.

Other proceedings involving national security information

134(2)    
If the President is satisfied that any other proceeding in the Tribunal would involve national security information, the President may direct that the Tribunal's powers in relation to the proceeding are to be exercised in the Intelligence and Security jurisdictional area.

134(3)    
The President may do so:

(a)    on application by a party to the proceeding; or

(b)    on the President's own initiative.

Other proceedings generally

134(4)    
To avoid doubt, this section does not limit the President's power under subsection 196(4) to direct that the powers of the Tribunal in relation to any other proceeding are to be exercised in the Intelligence and Security jurisdictional area.

SECTION 135   OPERATION IN RELATION TO DECISION-MAKER  
When this section applies

135(1)    
This section applies:

(a)    in relation to a proceeding for review of an intelligence and security decision, other than an exempt security record decision; and

(b)    for the purposes of the operation of this Act in relation to the decision.

Person taken to be decision-maker - general rule

135(2)    

For a decision mentioned in column 1 of an item in the following table, the decision-maker is taken to be the person mentioned in column 2 of the item.

Who is taken to be the decision-maker
Item	Column 1 Decision	Column 2 Person taken to be decision-maker
1	Criminal intelligence assessment	The Chief Executive Officer of the Australian Crime Commission
2	Foreign acquisitions and takeovers decision	The Treasurer
3	(Repealed No 39 of 2024)
4	Security assessment	The Director-General of Security
5	Security clearance decision	The Director-General of Security
6	Security clearance suitability assessment	The Director-General of Security

Exceptions

135(3)    
Subsection (2) does not apply in relation to:

(a)    section 54 (Tribunal can exercise powers of decision-maker); or

(b)    section 85 (Tribunal may remit decision to decision-maker for reconsideration); or

(c)    section 105 (Tribunal decision on review of reviewable decision); or

(d)    section 108 (effect of Tribunal decision to vary or substitute a reviewable decision); or

(e)    section 163 (security clearance decisions).

SECTION 136   REASONS FOR DECISIONS  
When this section applies

136(1)    
This section applies in relation to an intelligence and security decision.

Reasons for decisions

136(2)    
Division 3 of Part 10 (decision-makers to give reasons for decisions) does not apply in relation to the decision.

SECTION 137   MEANING OF RELEVANT BODY  
When this section applies

137(1)    
This section applies in relation to a proceeding in the Intelligence and Security jurisdictional area.

Meaning of relevant body

137(2)    

The relevant body for a decision mentioned in column 1 of an item in the following table is the Commonwealth entity or the part of a Commonwealth entity, or the State or Territory government entity, mentioned in column 2 of the item.

Meaning of relevant body
Item	Column 1 Decision	Column 2 Relevant body
1	Criminal intelligence assessment	The entity to which the assessment was given
2	Foreign acquisitions and takeovers decision	The agency within the national intelligence community that provided advice to the Treasurer in relation to the decision
3	(Repealed by No 39 of 2024)
4	Security assessment	The entity to which the assessment was given
5	Security clearance decision	The sponsoring agency in relation to the security clearance
6	Security clearance suitability assessment	Both:
		(a)	the security vetting agency to which the assessment was given; and
		(b)	the sponsoring agency in relation to the security clearance concerned if that agency was given the assessment by ASIO

Division 2 - Starting a review  

Subdivision A - Applications and notice of applications  

SECTION 138   LIMITS ON WHO CAN APPLY FOR CERTAIN REVIEWS  
When this section applies

138(1)    

This section applies in relation to an intelligence and security decision, other than an exempt security record decision.  Hide history note