Tribunals Amalgamation Act 2015 (60 of 2015)

Schedule 1 Amendment of the Administrative Appeals Tribunal Act 1975

Administrative Appeals Tribunal Act 1975

27 Parts III and IIIAA

Repeal the Parts, substitute:

Part III - Organisation of the Tribunal

Division 1 - Divisions of the Tribunal

Subdivision A - Divisions of the Tribunal

17A Divisions of the Tribunal

The Tribunal is to exercise powers conferred on it in the following Divisions:

(aa) Freedom of Information Division;

(a) General Division;

(b) Migration and Refugee Division;

(d) Security Division;

(e) Social Services and Child Support Division;

(f) Taxation and Commercial Division;

(g) any other prescribed Division.

17B Allocation of business to Divisions

(1) The Tribunal's powers in relation to a proceeding before the Tribunal are to be exercised:

(a) in the Division prescribed for such a proceeding; or

(b) if no Division is prescribed for a proceeding - in the Division that the President directs.

(2) Despite subsection (1), the following powers of the Tribunal may be exercised by the Tribunal only in the Security Division:

(a) the powers of review in respect of applications referred to in section 54 of the Australian Security Intelligence Organisation Act 1979;

(b) the power under the Archives Act 1983 to review a decision of the Archives in respect of access to a record of the Australian Security Intelligence Organisation.

Subdivision B - Assignment of members to Divisions

17C Assignment of members to Divisions

(1) The Minister must assign a non-presidential member to one or more Divisions of the Tribunal.

(2) Before the Minister does so, the Minister must consult the President in relation to the proposed assignment.

(3) An assignment may only be varied with the consent of the member concerned.

(4) A non-presidential member may exercise, or participate in the exercise of, powers of the Tribunal only in a Division to which the member is assigned.

(5) If theassignment is made in writing, the assignment is not a legislative instrument.

17CA Assignment to Freedom of Information Division

The Minister must not assign a member to the Freedom of Information Division unless the Minister is satisfied that the member:

(a) has training, knowledge or experience relating to the Freedom of Information Act 1982; or

(b) has other relevant knowledge or experience that will assist the member in considering matters relating to the operation of that Act.

17D Assignment to Migration and Refugee Division

Before assigning a member to the Migration and Refugee Division, the Minister must consult the Minister administering the Migration Act 1958 in relation to the proposed assignment.

17E Assignment to National Disability Insurance Scheme Division

(1) Before assigning a member to the National Disability Insurance Scheme Division, the Minister must consult the Minister administering the National Disability Insurance Scheme Act 2013 in relation to the proposed assignment.

(2) The Minister must not assign a member to the National Disability Insurance Scheme Division unless the Minister is satisfied that the member:

(a) has training, knowledge or experience relating to disability; or

(b) has other relevant knowledge or experience that will assist the member in considering matters relating to the National Disability Insurance Scheme.

17F Assignment to Security Division

The Minister must not assign a member to the Security Division if the member is or has been:

(a) the Director-General of Security; or

(b) an ASIO employee or ASIO affiliate.

Note: See also subsections 19E(3) and 19F(3).

17G Assignment to Social Services and Child Support Division

Before assigning a member to the Social Services and Child Support Division, the Minister must consult the Minister administering the Social Security (Administration) Act 1999 in relation to the proposed assignment.

17H Assignment to Taxation and Commercial Division

Before assigning a member to the Taxation and Commercial Division, the Minister must consult the Treasurer in relation to the proposed assignment.

17J Validity

Sections 17A to 17H do not affect the validity of any exercise of powers by the Tribunal.

Subdivision C - Division heads and Deputy Division heads

17K Division heads

Assignment of Division heads

(1) The Minister may assign a Deputy President to be the head of one or more Divisions of the Tribunal.

(2) Before the Minister does so, the Minister must consult:

(a) the President; and

(b) any Minister required by sections 17D to 17H to be consulted in relation to the assignment of a member to the Division.

(3) The Minister must not assign a person to be the head of a Division if the person could not be assigned to that Division because of section 17CA, subsection 17E(2) or section 17F.

(4) If theassignment is made in writing, the assignment is not a legislative instrument.

(5) An assignment under subsection (1):

(a) must be for the duration, or the remaining duration, of the person's appointment as a Deputy President; and

(b) may be varied, with the person's consent; and

Function of Division heads

(6) The head of a Division has the function of assisting the President in the performance of the President's functions by directing the business of the Tribunal in the Division.

Acting Division heads

(7) The Minister may, by written instrument, assign a Deputy President or senior member to act as the head of a Division during any period, or during all periods, when the head of the Division is absent from duty or from Australia. Such an assignment is taken to be an appointment to act for the purposes of the Acts Interpretation Act 1901.

17L Deputy Division heads

Assignment of deputy Division heads

(1) The Minister may assign a Deputy President or a senior member to be the deputy head of one or more Divisions of the Tribunal.

(2) Before the Minister does so, the Minister must consult:

(a) the President; and

(b) any Minister required by sections 17D to 17H to be consulted in relation to the assignment of a member to the Division.

(3) The Minister must not assign a person to be the deputy head of a Division if the person could not be assigned to that Division because of section 17CA, subsection 17E(2) or section 17F.

(4) If theassignment is made in writing, the assignment is not a legislative instrument.

(5) An assignment under subsection (1):

(a) must be for the duration, or the remaining duration, of the person's appointment as a Deputy President or senior member; and

(b) may be varied, with the person's consent; and

Function of deputy Division heads

(6) The deputy head of a Division has the function of assisting the head of the Division in the performance of the head of the Division's functions.

Acting deputy Division heads

(7) The Minister may, by written instrument, assign a member to act as the deputy head of a Division during any period, or during all periods, when the deputy head of the Division is absent from duty or from Australia. Such an assignment is taken to be an appointment to act for the purposes of the Acts Interpretation Act 1901.

Division 2 - Arrangement of business of Tribunal

18A Arrangement of business

Subject to this Act and the regulations, the President is responsible for ensuring:

(a) the expeditious and efficient discharge of the business of the Tribunal; and

(b) that the Tribunal pursues the objective in section 2A.

18B President's directions - arrangement of business

(1) The President may give written directions in relation to any or all of the following:

(a) the operations of the Tribunal;

(b) the procedure of the Tribunal;

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

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

(1A) Before the President does so, the President must consult the head of any Division to which the direction would apply.

(2) A failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal.

(3) If the Tribunal deals with a proceeding in a way that complies with the directions given under this section, the Tribunal is not required to take any other action in dealing with the proceeding.

(4) Without limiting subsection (1), directions may deal with matters relating to the provision of documents under sections 37 and 38AA, including any or all of the following matters:

(a) documents that are or are not required to be lodged under paragraph 37(1)(b) and subsection 38AA(1);

(b) documents that are or are not required to be lodged under subsection 37(1AAB) for the purposes of second reviews;

(d) lodgement of additional copies of documents;

(e) documents that are to be given to other parties under subsection 37(1AE).

18C Sittings of Tribunal

Sittings of the Tribunal are to be held from time to time as required, in such places in Australia or an external Territory as are convenient.

Division 3 - Constitution of Tribunal

Subdivision A - General

19A President's directions - constitution

(1) The President may give written directions in relation to:

(a) the members who are to constitute the Tribunal for the purposes of a proceeding; and

(b) if there is more than one such member - the member who is to preside.

(2) Paragraph (1)(b) does not apply to a proceeding in the Security Division.

19B Constitution

(1) The Tribunal as constituted for the purposes of a proceeding:

(a) must not have more than 3 members, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding; and

(b) must not have more than one member who is a Judge.

(2) At any time before the hearing of a proceeding commences, the powers of the Tribunal in relation to the proceeding may be exercised by the President or an authorised member.

(3) Subsection (2) does not apply in relation to the following powers:

(a) the power under section 34J (circumstances in which hearing may be dispensed with);

(b) the power under section 43 (Tribunal's decision on review);

(d) a power that a provision of this Act (except this section) or another enactment requires or permits to be exercised by:

(i) one or more persons specified by the provision; or

(ii) the Tribunal constituted in a way specified by the provision.

Note: Examples of powers covered by subparagraph (3)(d)(i) are the powers under sections 19A, 33 and 43AA. Examples of powers covered by subparagraph (3)(d)(ii) are the powers under section 19C.

(4) This section does not apply in relation to a proceeding in the Security Division (see Subdivision B).

19C Constitution for review of taxing of costs

(1) The Tribunal as constituted for the purposes of an application for review of a taxing of costs in another proceeding must be constituted by:

(a) the member who constituted the Tribunal for the purposes of the other proceeding; or

(b) if the Tribunal was constituted by more than one member for the purposes of the other proceeding - the member who presided for those purposes.

(2) However, the Tribunal is to be constituted as directed by the President if the member referred to in subsection (1):

(a) has stopped being a member; or

(b) is for any reason unavailable; or

(3) The President must not give directions that would result in none of the members who constituted the Tribunal for the purposes of the other proceeding constituting the Tribunal for the purposes of the review, unless the President is satisfied that it is in the interests of justice to do so.

19D Reconstitution

Before hearing commences

(1) At any time before the hearing of a proceeding commences, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction.

After hearing commences

(2) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, if:

(a) the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:

(i) stops being a member; or

(ii) is for any reason unavailable; or

(iii) is directed by the President not to take part in the proceeding; or

(b) the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.

(3) Subsection (2) does not apply in relation to a proceeding in the Security Division.

(4) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

President's directions

(5) The President must not give a direction referred to in subparagraph (2)(a)(iii) unless the President:

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

(b) has consulted the member concerned.

(6) The President must not, for the purposes of subsection (2), revoke a direction under subsection 19A(1) in relation to a proceeding and give another such direction unless the President:

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

(b) has consulted each member who as a result ceases to be a member of the Tribunal as constituted for the purposes of the proceeding.

(7) In giving directions for the purposes of this section, the President must have regard to the Tribunal's objective in section 2A.

Subdivision B - Security Division

19E Constitution of Security Division

Scope

(1) This section applies to a proceeding in the Security Division other than a proceeding to which section 19F applies, but has effect subject to subsection 65(2) of the Australian Security Intelligence Organisation Act 1979.

Constitution of Security Division

(2) The Security Division is to be constituted by a presidential member and 2 other members.

(3) The presidential member must not participate in the proceeding if the presidential member is or has been:

(a) the Director-General of Security; or

(b) an ASIO employee or ASIO affiliate.

Presiding member

(4) The presidential member is to preside at a hearing of the proceeding.

Reconstitution

(5) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection 19A(1) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding is for any reason unavailable.

(6) The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

19F Constitution of Security Division for proceedings to review certain Archives decisions

Scope

(1) This section applies to a proceeding in the Security Division in relation to a review of a decision of the Archives under the Archives Act 1983 relating to a record of the Australian Security Intelligence Organisation.

Constitution of Security Division

(2) The Security Division is to be constituted by:

(a) 3 presidential members; or

(b) a presidential member alone.

(3) A presidential member must not participate in the proceeding if the presidential member is or has been:

(a) the Director-General of Security; or

(b) an ASIO employee or ASIO affiliate.

Presiding member

(4) If the Tribunal is constituted by 3 presidential members, the person who is to preside at a hearing of the proceeding is:

(a) if the President is one of the members - the President; or

(b) if the President is not one of the members but one or more Judges is - the most senior (or only) Judge; or

Reconstitution

(5) At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under paragraph 19A(1)(a) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding ceases to be available.

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