Administrative Appeals Tribunal Act 1975
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View history noteDiv 5 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A .
Subject to subsection (1A) , if the Tribunal is constituted for the purposes of a proceeding by 3 members, a disagreement between the members is to be settled according to the opinion of the majority of the members.
S 42(1) amended by No 53 of 2023, s 3 and Sch 1 item 29, by substituting " Subject to subsection (1A), if " for " If " , applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
42(1A)
If: (a) the Tribunal is constituted for the purposes of a proceeding by 3 presidential members in accordance with section 19F ; and (b) the proceeding is not in relation to a review of a decision relating to a record of the Australian Security Intelligence Organisation; and (c) the members disagree about a question of law arising in the proceeding;
the disagreement is to be settled:
(d) if only one presidential member is a Judge - according to the opinion of that member; or (e) if 2 presidential members are Judges - according to the opinion of the majority of the members.S 42(1A) inserted by No 53 of 2023, s 3 and Sch 1 item 30, applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
42(2)
If the Tribunal is constituted for the purposes of a proceeding by 2 members, a disagreement between the members is to be settled according to the opinion of the presiding member.
S 42 substituted by No 60 of 2015, s 3 and Sch 1 item 107, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 42 formerly read:
If:
the view of the presiding member prevails.
SECTION 42 RESOLVING DISAGREEMENTS
42(1)
2 members.
(a)
2 members constitute the Tribunal for the purposes of a particular proceeding; and
(b)
the members do not agree about any matter arising in the proceeding;
42(2) 3 members.
If:
(a) 3 members constitute the Tribunal for the purposes of a particular proceeding; and
(b) the members do not agree about any matter arising in the proceeding; and
(c) the matter does not consist of a question of law;
then:
(d) if the majority agree - the view of the majority prevails; or
(e) otherwise - the view of the presiding member prevails.
42(3)
If:
(a) 3 members constitute the Tribunal for the purposes of a particular proceeding; and
(b) the members do not agree about a question of law arising in the proceeding;
the view of the presiding member prevails.
42(4) Question of law.
A reference in this section to a question of law includes a reference to the question of whether a particular question is one of law.
S 42 substituted by No 38 of 2005. No 38 of 2005, Sch 1 [ 152], provides:
Application - section 42 of the Administrative Appeals Tribunal Act 1975
The amendment made by item 151 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.
For transitional provisions see note under s 2A .
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