Administrative Appeals Tribunal Amendment Act 2005 (38 of 2005)

Schedule 1   Amendments

Administrative Appeals Tribunal Act 1975

112   Sections 34 and 34A

Repeal the sections, substitute:

Division 3 - Alternative dispute resolution processes

34 Scope of Division

This Division does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

34A Referral of proceeding for alternative dispute resolution process

(1) If an application is made to the Tribunal for review of a decision, the President may:

(a) direct the holding of a conference of the parties or their representatives in relation to the proceeding, or any part of the proceeding or any matter arising out of the proceeding; or

(b) direct that the proceeding, or any part of the proceeding or any matter arising out of the proceeding, be referred for a particular alternative dispute resolution process (other than conferencing).

(2) The President may also direct the holding of conferences of the parties or their representatives in the case of applications made to the Tribunal for review of decisions of a kind specified in the direction.

(3) The President may also direct that proceedings be referred for a particular alternative dispute resolution process (other than conferencing) in the case of applications made to the Tribunal for review of decisions of a kind specified in the direction.

(4) A direction may be given under a particular paragraph of subsection (1):

(a) whether or not a direction has previously been given under the same or the other paragraph of that subsection in relation to the proceeding; and

(b) whether or not a direction under subsection (2) or (3) has applied.

(5) If a direction under this section is applicable to:

(a) a proceeding; or

(b) a part of a proceeding; or

(c) a matter arising out of a proceeding;

each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.

34B Alternative dispute resolution processes - proceeding before the Small Taxation Claims Tribunal

Scope

(1) This section applies to a proceeding before the Small Taxation Claims Tribunal.

Statement about alternative dispute resolution processes to be given to applicant

(2) The Registrar, a District Registrar or a Deputy Registrar must give to the applicant:

(a) if the proceeding relates to an application to which subparagraph 24AC(1)(a)(i) or paragraph 24AC(1)(aa) or (b) applies - when the application is made; or

(b) if the proceeding relates to an application to which subparagraph 24AC(1)(a)(ii) applies - when the notification referred to in that subparagraph is given;

a statement setting out the procedures to be followed by the Tribunal and the alternative dispute resolution processes that are available under this Act.

Referral of matter for alternative dispute resolution process

(3) If the Tribunal considers at any time that it may assist in the resolution of the dispute between the parties if:

(a) the proceeding; or

(b) any part of the proceeding; or

(c) any matter arising out of the proceeding;

were dealt with by an alternative dispute resolution process, the Tribunal must:

(d) direct the holding of a conference of the parties or their representatives in relation to the proceeding, part of the proceeding, or matter, as the case may be; or

(e) direct that the proceeding, part of the proceeding, or matter, as the case may be, be referred for a particular alternative dispute resolution process (other than conferencing).

(4) If a direction under this section is applicable to:

(a) a proceeding; or

(b) a part of a proceeding; or

(c) a matter arising out of a proceeding;

each party must act in good faith in relation to the conduct of the alternative dispute resolution process concerned.

34C Directions by President

(1) The President may give directions about alternative dispute resolution processes.

(2) Directions under subsection (1) may relate to:

(a) the procedure to be followed in the conduct of an alternative dispute resolution process; and

(b) the person who is to conduct an alternative dispute resolution process; and

(c) the procedure to be followed when an alternative dispute resolution process ends.

(3) Subsection (2) does not limit subsection (1).

(4) The President may at any time vary or revoke a direction under subsection (1).

(5) A person is not entitled to conduct an alternative dispute resolution process unless the person is:

(a) a member; or

(b) an officer of the Tribunal; or

(c) a person engaged under section 34H.

34D Agreement about the terms of a decision etc.

(1) If:

(a) in the course of an alternative dispute resolution process under this Division, agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal:

(i) in the proceeding; or

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

(iii) in relation to the matter arising out of the proceeding;

that would be acceptable to the parties; and

(b) the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and

(c) 7 days pass after lodgment, and none of the parties has notified the Tribunal in writing that he or she wishes to withdraw from the agreement; and

(d) the Tribunal is satisfied that a decision in the terms of the agreement or consistent with those terms would be within the powers of the Tribunal;

the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.

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

(3) If the agreement relates to:

(a) a part of the proceeding; or

(b) a matter arising out of the proceeding;

the Tribunal may, in its decision in the proceeding, give effect to the terms of the agreement without dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates.

34E Evidence not admissible

(1) Evidence of anything said, or any act done, at an alternative dispute resolution process under this Division is not admissible:

(a) in any court; or

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

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

Exceptions

(2) Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of particular evidence if the parties agree to the evidence being admissible at the hearing.

(3) Subsection (1) does not apply so as to prevent the admission, at the hearing of a proceeding before the Tribunal, of:

(a) a case appraisal report prepared by a person conducting an alternative dispute resolution process under this Division; or

(b) a neutral evaluation report prepared by a person conducting an alternative dispute resolution process under this Division;

unless a party to the proceeding notifies the Tribunal before the hearing that he or she objects to the report being admissible at the hearing.

34F Eligibility of person conducting alternative dispute resolution process to sit as a member of the Tribunal

If:

(a) an alternative dispute resolution process under this Division in relation to a proceeding is conducted by a member of the Tribunal; and

(b) a party to the proceeding notifies the Tribunal before the hearing that he or she objects to that member participating in the hearing;

that member is not entitled to be a member of the Tribunal as constituted for the purposes of the proceeding.

34G Participation by telephone etc.

The person conducting an alternative dispute resolution process under this Division may allow a person to participate by:

(a) telephone; or

(b) closed-circuit television; or

(c) any other means of communication.

34H Engagement of persons to conduct alternative dispute resolution processes

(1) The Registrar may, on behalf of the Commonwealth, engage persons to conduct one or more kinds of alternative dispute resolution processes under this Division.

(2) The Registrar must not engage a person under subsection (1) unless the Registrar is satisfied, having regard to the person's qualifications and experience, that the person is a suitable person to conduct the relevant kind or kinds of alternative dispute resolution processes under this Division.