Federal Register of Legislation - Australian Government

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A Bill for an Act to establish an Administrative Review Tribunal, and for other purposes
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Introduced HR 28 Jun 2000

Administrative Review Tribunal Bill 2000
First Reading

1998-1999-2000

The Parliament of the

Commonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Administrative Review Tribunal Bill 2000

No. , 2000

(Attorney-General)

A Bill for an Act to establish an Administrative Review Tribunal, and for other purposes

ISBN: 0642 439362

Contents

A Bill for an Act to establish an Administrative Review Tribunal, and for other purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title This Act may be cited as the Administrative Review Tribunal Act 2000.

2 Commencement (1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Parts 4 to 10 commence on a day to be fixed by Proclamation.

(3) If Parts 4 to 10 do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

3 Objects The main objects of this Act are:

(a) to establish the Administrative Review Tribunal to review administrative decisions where other enactments provide for applications for review to be made; and

(b) to provide for the Tribunal to review the merits of such decisions independently of the persons or bodies who made them; and

(c) to ensure the Tribunal provides an accessible mechanism for reviewing such decisions that is fair, just, economical, informal and quick; and

(d) to enable the Tribunal to review decisions in a non-adversarial way; and

(e) to enable the Tribunal, in reviewing decisions, to adopt flexible and streamlined procedures and a variety of processes for resolving issues, including making appropriate use of technology; and

(f) to improve the quality and consistency of the making of such decisions.

4 Overview of Act Establishment, structure and membership of the Administrative Review Tribunal--Part 2 of the Act

(1) This Act provides for there to be an Administrative Review Tribunal consisting of a President, executive members, senior members and other members. The Tribunal is divided into various Divisions.

(2) The President and other members are appointed by the Governor-General. Division 3 of Part 2 covers the terms and conditions of members. For example, it deals with the remuneration and allowances of members and their resignation or removal from office.

Administration of the Tribunal--Part 3 of the Act

(3) The President is responsible for managing the administrative affairs of the Tribunal. Executive members and other members are to assist the President in doing so.

(4) A Chief Executive Officer is also to assist the President in managing the administrative affairs of the Tribunal. Staff and consultants may also be engaged.

Review of decisions by the Tribunal--Parts 4 to 9 of the Act

(5) The Tribunal has the function of reviewing administrative decisions that affect persons' interests, where other enactments allow applications for review to be made. Parts 4 to 9 provide for a 2 stage process under which the Tribunal conducts a "first-tier" review and, if certain conditions are met, a "second-tier" review of its first-tier decision.

Modifications by other enactments

(6) Enactments providing for applications to the Tribunal for the review of decisions may modify the operation of this Act in relation to first-tier or

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second-tier review. However, it is not intended that the enactments modify certain provisions.

Appeals and references to the Federal Court etc.--Part 10 of the Act

(7) Part 10 deals with appeals to the Federal Court from Tribunal decisions, the transfer of such appeals to the Federal Magistrates Court and references of questions of law to the Federal Court.

Administrative Review Council--Part 11 of the Act

(8) The Act also provides for there to be an Administrative Review Council, whose main function is to review and monitor developments in the Commonwealth administrative law system and recommend to the Attorney-General improvements that might be made to the system.

5 Overview diagrams First-tier review

(1) The following diagram gives an overview of the main steps typically involved in first-tier review of a decision made under an enactment.

Click here for Picture

Second-tier review

(2) The following diagram gives an overview of the main steps typically involved in the second-tier review of a first-tier decision.

Click here for Picture

Federal Court appeals

(3) The following diagram gives an overview of the main steps typically involved in appealing to the Federal Court from a first-tier or second-tier decision on a question of law.

Click here for Picture

6 Definitions In this Act, unless the contrary intention appears:

Agency has the same meaning as in the Public Service Act 1999.

Agency Head has the same meaning as in the Public Service Act 1999.

all review and appeal action has been finalised has the meaning given by section 120.

appointed Council member means a member of the Council mentioned in paragraph 175(d).

Chief Executive Officer means the Chief Executive Officer of the Tribunal appointed under section 35.

code of conduct has the meaning given by section 25.

consultant means a person engaged as a consultant under section 48.

core provision has the meaning given by subsection 7(3).

Council means the Administrative Review Council mentioned in section 175.

Council member means an appointed Council member or an ex officio Council member.

decision includes:

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

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; or

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; or

(d) imposing a condition or restriction; or

(e) making a declaration, demand or requirement; or

(f) retaining, or refusing to deliver up, an article; or

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

decision-maker has the meaning given by section 55 and subsection 67(2).

Division means a Division of the Tribunal set out in section 11.

document includes:

(a) a map, plan, drawing or photograph; and

(b) an application, notice or statement of reasons; and

(c) any other thing mentioned in the definition of document in section 25 of the Acts Interpretation Act 1901.

enactment means:

(a) an Act; or

(b) subordinate legislation.

executive member means a person appointed as an executive member under section 13.

ex officio Council member means a member of the Council mentioned in paragraph 175(a), (b) or (c).

Federal Court means the Federal Court of Australia.

first-tier decision means a decision by the Tribunal under section 133 on a first-tier review.


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first-tier review means review, as a result of an application under Division 1 of Part 4, of an original decision.

inquiry officer has the meaning given by section 111.

member means the President, an executive member, a senior member or any other person appointed as a member under section 13.

Ombudsman means the Commonwealth Ombudsman holding office under the Ombudsman Act 1976.

original decision has the meaning given by section 54.

participant has the meaning given by section 84.

performance agreement has the meaning given by subsection 24(1).

performance of a related Tribunal function has the meaning given by paragraph 140(b).

person 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, association or body; and

(b) if the objects or purposes did not always include the matter--the decision was made after the objects or purposes included the matter.

practice and procedure directions means directions under section 161.

President means the person appointed as the President under section 12.

primary Division of a member has the meaning given by subsection 14(2).

responsible Minister for a Division means the Minister who, under section 15, must be satisfied as mentioned in that section in relation to the appointment of members whose primary Division will be that Division.

second-tier decision means a decision by the Tribunal under section 133 on a second-tier review.

second-tier review means review, as a result of an application under Division 2 of Part 4, of a first-tier decision.

senior member means a person appointed as a senior member under section 13.

staff of the Tribunal has the meaning given by section 46.

statement of reasons for a decision means a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.

subordinate legislation means:

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

(b) an instrument (including rules, regulations or by-laws) made under an Act or under such an Ordinance.

Tribunal means the Administrative Review Tribunal established by section 10.

7 Effect of enactments on core provisions and other provisions Acts

(1) As far as possible, other Acts (whether enacted before or after the commencement of this section) are to be interpreted as not affecting the operation of the core provisions (see subsection (3)).

Subordinate legislation

(2) If subordinate legislation, whether made before or after the commencement of this section, makes provision as mentioned in subsections 54(2) and (3) (about allowing applications for Tribunal review) in relation to the review of decisions, that legislation may also provide for the amendment of the operation of:

(a) any provision of this Act (other than a core provision) in relation to the review of the decisions; and

(b) Subdivision B of Division 1 of Part 4 (about giving notice of decisions) in relation to such decisions;

and any such provision has effect accordingly.

Core provisions

(3) In this section:

core provisions means the following:

(a) Parts 2 and 3 (about the establishment, structure, membership, staffing and administration of the Tribunal);

(b) Division 2 of Part 4 (about initiating second-tier review);

(c) Part 5 (about the Tribunal's preparations for review);

(d) Division 3 of Part 6 (about the presiding member and resolution of differences);

(e) section 90 (about procedural fairness);

(f) section 91 (about rules of evidence);

(g) section 92 (about informality in reviewing decisions);

(h) section 106 (about persons being assisted by interpreters);

(i) sections 107, 108 and 116 and Division 10 of Part 9 (about practice and procedure directions and determinations);


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(j) Division 11 of Part 9 (about the performance of related Tribunal functions).

8 Application to external Territories This Act extends to every external Territory.

9 Application to unincorporated bodies If a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, this Act applies as if that board, committee or other body were a person empowered to make those decisions.

Part 2--Establishment, structure and membership of the Tribunal Note: The provisions of this Part are core provisions. Other Acts are to be interpreted as far as possible as not changing the provisions, and subordinate legislation providing for Tribunal review cannot change them: see section 7.

Division 1--Establishment and structure 10 Establishment of the Tribunal The Administrative Review Tribunal is established by this section.

11 Structure of the Tribunal The Tribunal has the following Divisions:

(a) the Commercial and General Division;

(b) the Immigration and Refugee Division;

(c) the Income Support Division;

(d) the Taxation Division;

(e) the Veterans' Appeals Division;

(f) the Workers' Compensation Division;

(g) any other Division specified in the regulations.

Division 2--Appointment of members of the Tribunal 12 President (1) There is to be a President of the Tribunal.

(2) The President is to be appointed by the Governor-General by written instrument.

13 Executive members, senior members and other members (1) There are to be executive members, senior members and other members of the Tribunal.

(2) The executive members, senior members and other members are to be appointed by the Governor-General by written instrument.

(3) A senior member must not be appointed if the appointment would cause:

(a) the total number of senior members to be more than 10% of the total number of members; or

(b) the total number of senior members appointed to a Division, who have that Division as their primary Division, to be more than 15% of the total number of members appointed to that Division, who have that Division as their primary Division.

14 Appointment to Divisions Executive members

(1) One executive member is to be appointed to each Division, and the same executive member cannot be appointed to more than one Division.

Senior members and other members

(2) Each member (other than the President or an executive member) is to be appointed to at least one Division. If the member is appointed to one Division only, that Division is the member's primary Division. Otherwise, the instrument of appointment is to state which Division is the member's primary Division.

15 Members to have appropriate qualifications and experience Commercial and General Division etc.

(1) Before the Governor-General appoints a person as:


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(a) a member whose primary Division will be the Commercial and General Division or a Division mentioned in paragraph 11(g); or

(b) the executive member for that Division;

the Attorney-General must be satisfied, having regard to the person's qualifications and experience, that the person should be appointed.

Immigration and Refugee Division

(2) Before the Governor-General appoints a person as:

(a) a member whose primary Division will be the Immigration and Refugee Division; or

(b) the executive member for that Division;

the Minister administering Part 5 of the Migration Act 1958 must be satisfied, having regard to the person's qualifications and experience, that the person should be appointed.

Income Support Division

(3) Before the Governor-General appoints a person as:

(a) a member whose primary Division will be the Income Support Division; or

(b) the executive member for that Division;

the Minister administering Part 4 of the Social Security (Administration) Act 1999 must be satisfied, having regard to the person's qualifications and experience, that the person should be appointed.

Taxation Division

(4) Before the Governor-General appoints a person as:

(a) a member whose primary Division will be the Taxation Division; or

(b) the executive member for that Division;

the Minister administering Part IVC of the Taxation Administration Act 1953 must be satisfied, having regard to the person's qualifications and experience, that the person should be appointed.

Veterans' Appeals Division

(5) Before the Governor-General appoints a person as:

(a) a member whose primary Division will be the Veterans' Appeals Division; or

(b) the executive member for that Division;

the Minister administering Part X of the Veterans' Entitlements Act 1986 must be satisfied, having regard to the person's qualifications and experience, that the person should be appointed.

Workers' Compensation Division

(6) Before the Governor-General appoints a person as:

(a) a member whose primary Division will be the Workers' Compensation Division; or

(b) the executive member for that Division;

the Minister administering Part VI of the Safety, Rehabilitation and Compensation Act 1988 must be satisfied, having regard to the person's qualifications and experience, that the person should be appointed.

16 Assignment of members to additional Divisions The President may, after a member (other than an executive member) is appointed to one or more Divisions, in writing, assign the member to an additional Division or Divisions for a specified period, but only with the consent of:

(a) the member; and

(b) the responsible Minister for the member's primary Division; and

(c) the responsible Minister for the additional Division or responsible Ministers for the additional Divisions.

Division 3--Members' terms and conditions 17 Members to be full-time or part-time (1) The President and the executive members are to be appointed as full-time members.

(2) Each other member is to be appointed as a full-time member or a part-time member.

18 Term of appointment Subject to this Division, a member holds office for the period specified in his or her instrument of appointment. The period must not exceed 7 years.

19 Remuneration and allowances (1) A member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Remuneration Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.

(2) A member is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

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20 Leave of absence Full-time members--recreation leave

(1) A full-time member has the recreation leave entitlements that are determined by the Remuneration Tribunal.

President--other leave

(2) The Attorney-General may grant the President leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Attorney-General determines.

Other full-time members--other leave

(3) The President may grant any other full-time member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the President determines.

Part-time members

(4) The President may grant leave of absence to any part-time member on the terms and conditions that the President determines.

21 Outside employment Full-time members

(1) A full-time member must not engage in paid employment outside the duties of his or her office, except with the consent of:

(a) if the member is the President--the Attorney-General; or

(b) in any other case--the President.

Part-time members

(2) A part-time member who engages in paid employment outside the duties of his or her office must, in writing, advise the President.

(3) A part-time member must not engage in any paid employment that, in the President's opinion, conflicts or may conflict with the proper performance of the duties of his or her office.

22 Disclosure of interests by President Requirement for initial disclosure of financial interests

(1) The Attorney-General must, within a reasonable period after the President is appointed, require the President to make such written disclosure as the Attorney-General requires of:

(a) the President's financial interests; and

(b) the financial interests of the President's immediate family;

to the Attorney-General.

Compliance with disclosure requirement

(2) The President must comply with the requirement within one month.

Updating disclosure of financial interests

(3) The President must from time to time make such further disclosure to the Attorney-General as is necessary to ensure that the information about the financial interests mentioned in subsection (1) is up-to-date.

Interests conflicting with review--action by President

(4) If the President is to review, or is reviewing, (either alone or together with one or more other members) a decision and the President has or acquires any interest, financial or otherwise, that could conflict with the proper review of the decision:

(a) the President must disclose the interest to the participants in the review; and

(b) except with the consent of all the participants in the review, the President must not review, or continue to review, the decision.

Interests conflicting with second-tier review leave decision

(5) If the President is to decide under section 65 whether or not to grant leave to make an application for second-tier review and the President has or acquires any interest, financial or otherwise, that could conflict with the proper making of the decision, the President must not make the decision, but must delegate the function in accordance with this Act.

23 Disclosure of interests by other members Requirement for initial disclosure of financial interests

(1) The President must, within a reasonable period after each other member is appointed, require the member to make such written disclosure as the President requires of:

(a) the member's financial interests; and

(b) the financial interests of the member's immediate family;

to:

(c) in the case of an executive member--the President; or

(d) in any other case--the executive member appointed to the member's primary Division.

Compliance with disclosure requirement


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(2) The member must comply with the requirement within one month.

Updating disclosure of financial interests

(3) The member must from time to time make such further disclosure to the executive member or the President, as the case may be, as is necessary to ensure that the information about the financial interests mentioned in subsection (1) is up-to-date.

Interests conflicting with review--action by member

(4) If a member other than the President is to review, or is reviewing, (either alone or together with one or more other members) a decision and has or acquires any interest, financial or otherwise, that could conflict with the proper review of the decision:

(a) the member must disclose the interest to the participants in the review; and

(b) the member is only to review, or continue to review, the decision if:

(i) all the participants in the review consent to the member doing so; and

(ii) the President does not give a direction under paragraph (5)(a).

Interests conflicting with review--action by President

(5) If the President becomes aware that a member who is to review, or is reviewing, (either alone or together with one or more other members) a decision has an interest of the kind mentioned in subsection (4):

(a) where the President considers that the member should not review or continue to review the decision--he or she must give a direction to the member accordingly; or

(b) in any other case--he or she must arrange for the interest of the member to be disclosed to the participants in the review.

Interests conflicting with second-tier review leave decision

(6) If a member other than the President is to decide under section 65 whether or not to grant leave to make an application for second-tier review and the member has or acquires any interest, financial or otherwise, that could conflict with the proper making of the decision, that member must not make the decision.

Note: In such a case, the delegation powers under this Act would be used to enable another member to make the decision.

24 Performance agreements Requirement to enter into agreement

(1) As soon as practicable after his or her appointment, each member (other than the President) is to enter into a written agreement (a performance agreement) under this section with:

(a) in the case of an executive member--the President; or

(b) in any other case--the executive member appointed to the member's primary Division or a senior member appointed or assigned to that Division who is chosen for the purpose by the executive member.

Note: If the member does not enter into the agreement, he or she may be subject to removal from office under section 28.

Coverage of agreement

(2) The performance agreement is to deal with the performance by the member of the duties of his or her office and in particular is to require the member to:

(a) participate in a performance appraisal scheme; and

(b) be accountable for his or her productivity and performance; and

(c) assist the President, in such manner as the President requires, in managing the administrative affairs of the Tribunal; and

(d) recognise the need for compliance with the code of conduct.

Agreement not to cover substance of decisions

(3) However, the performance agreement is not to deal with the substance of particular decisions made by the member, or in which the member participates.

Compliance

(4) The member must comply with the performance agreement.

Note: If the member does not comply, he or she may be subject to a direction under section 26 or removal from office under section 28.

25 Code of conduct Establishment of committee to determine code

(1) As soon as practicable after the commencement of this section, the President is to establish a committee that is to determine a written code of conduct to apply to members performing the duties of their offices.

Note: Under subsection 33(3) of the Acts Interpretation Act 1901, the code of conduct can later be varied in the same way as it was made.

Composition of committee

(2) The committee is to consist of:

(a) the President; and

(b) 2 executive members; and

(c) a person who:

(i) is, in the opinion of the President, suitably qualified to be a member of the committee, and


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(ii) is not a member, the Chief Executive Officer, staff or (disregarding the person's membership of the committee) a consultant.

Consultation

(3) The committee is to consult, to the extent that it considers appropriate, persons outside the Tribunal and members of the Tribunal about the content of the code of conduct.

Compliance

(4) Each member must comply with the code of conduct.

Note: If the member does not comply, he or she may be subject to a direction under section 26 or removal from office under section 28.

Disallowable instrument

(5) The code of conduct is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

26 Failure to comply with performance agreement or code of conduct Direction to improve performance etc.

(1) If a member (other than the President) does not comply with his or her performance agreement or the code of conduct, the President may, in accordance with guidelines determined under subsection (3), in writing, direct the member to take specified action to improve the performance of his or her duties so that the member will in future comply with the agreement or code.

Later removal action not affected

(2) The fact that the President gives a direction does not mean that the member cannot later be removed from office under section 28 for the non-compliance to which the direction relates.

Guidelines

(3) The President, after consulting the executive members, must determine written guidelines for the purposes of subsection (1). The guidelines must ensure that procedural fairness will be afforded to members who are to be given directions in accordance with them.

27 Removal of President from office Removal of President for misbehaviour or incapacity

(1) The Governor-General must remove the President from office if each House of the Parliament, in the same session of the Parliament, resolves that the President should be removed from office for misbehaviour or physical or mental incapacity.

Removal of President on other grounds

(2) The Governor-General must remove the President from office if the President:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(c) compounds with his or her creditors; or

(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.

28 Removal of other members from office Removal of members for bankruptcy etc.

(1) The Governor-General must remove a member (other than the President) from office if the member:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(c) compounds with his or her creditors; or

(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.

Removal of members on other grounds

(2) The Governor-General must remove a member (other than the President) from office if:

(a) subsection (3) applies to the member; and

(b) the President is satisfied that, because of this, the member should be removed from office; and

(c) if the member is an executive member--the responsible Minister for the Division to which the member was appointed agrees that the member should be removed from office.

Other grounds

(3) This subsection applies to a member if the member:

(a) misbehaves or becomes physically or mentally incapacitated; or

(b) is absent from duty, except on leave of absence granted in accordance with section 20, for 14 days or more in any 3 months or for 28 days or more in any 12 months; or

(c) fails, without reasonable excuse, to comply with his or her obligations under section 21 (about outside employment) or 23 (about disclosure of

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interests); or

(d) refuses or fails to enter into a performance agreement as required by section 24 or, after entering into such an agreement, commits a serious or continuing breach of the agreement or of a direction under section 26 in relation to the agreement; or

(e) commits a serious or continuing breach of his or her obligations under subsection 25(4) (about the code of conduct) or of a direction under section 26 in relation to the code of conduct; or

(f) commits a serious or continuing breach of his or her obligations under section 75 or subsection 161(7) or of a requirement under subsection 108(2) (about compliance with directions); or

(g) in the case of a member appointed or assigned to the Immigration and Refugee Division--has a direct or indirect financial interest in a body that provides services in relation to the seeking by persons who are not Australian citizens of permission to enter or remain in Australia.

Paragraph (3)(a) not limited

(4) To avoid doubt, paragraphs (3)(b) to (g) do not limit paragraph (3)(a).

29 Resignation A member may resign his or her appointment by giving the Governor-General a written resignation.

30 Other terms and conditions A member holds office on the terms and conditions (if any) in relation to matters not covered by this Act as are determined by:

(a) if the member is the President--the Attorney-General; or

(b) in any other case--the President.

31 Acting President, executive members and senior members Acting President

(1) The Attorney-General may appoint a person (whether or not a member) to act as President:

(a) during a vacancy in the office of President (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the President is absent from duty or from Australia, or is, for any reason, unable to perform the duties of his or her office.

Acting executive members

(2) The responsible Minister for a Division may appoint a member appointed or assigned to the Division to act as the executive member for the Division:

(a) during a vacancy in the office of the executive member (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the executive member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of his or her office.

Acting senior members

(3) The President may appoint a member to act as a senior member:

(a) during a vacancy in the office of the senior member (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the senior member is absent from duty or from Australia, or is, for any reason, unable to perform the duties of his or her office.

Validity of action

(4) Anything done by or in relation to a member or other person purporting to act under an appointment under this section is not invalid because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion for the member or other person to act had not arisen or had ceased.

Part 3--Administration of the Tribunal Note: The provisions of this Part are core provisions. Other Acts are to be interpreted as far as possible as not changing the provisions, and subordinate legislation providing for Tribunal review cannot change them: see section 7.

Division 1--Management responsibilities of the President and other members 32 President to manage the Tribunal The President is responsible for managing the administrative affairs of the

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Tribunal.

33 Executive members to assist in managing Divisions The executive member appointed to each Division is to assist the President, in such manner as the President requires, in managing the administrative affairs of that Division.

34 Other members to assist President and executive members as required (1) Each other member is to assist the President, in such manner as the President requires, in managing the administrative affairs of the Tribunal.

(2) Each member appointed or assigned to a Division is to assist the executive member for the Division, in such manner as the executive member requires, in managing the administrative affairs of the Division.

Division 2--Chief Executive Officer 35 Chief Executive Officer The Chief Executive Officer is to be appointed by the Governor-General by written instrument.

36 Chief Executive Officer to assist President in managing the Tribunal The Chief Executive Officer is to assist the President, in such manner as the President requires, in the management of the administrative affairs of the Tribunal.

37 Term of appointment Subject to this Division, the Chief Executive Officer holds office for the period specified in his or her instrument of appointment. The period must not exceed 5 years.

38 Remuneration and allowances (1) The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Remuneration Tribunal is in operation, the Chief Executive Officer is to be paid the remuneration that is prescribed by the regulations.

(2) The Chief Executive Officer is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

39 Leave of absence (1) The Chief Executive Officer has the recreation leave entitlements that are determined by the Remuneration Tribunal.

President may grant leave of absence

(2) The President may grant the Chief Executive Officer leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the President determines.

40 Outside employment The Chief Executive Officer must not engage in paid employment outside the duties of his or her office without the President's approval.

41 Disclosure of interests (1) The President must, within a reasonable period after the appointment of the Chief Executive Officer, require the Chief Executive Officer to make such written disclosure as the President requires of:

(a) the Chief Executive Officer's financial interests; and

(b) the financial interests of the Chief Executive Officer's immediate family;

to the President.

(2) The Chief Executive Officer must comply with the requirement within one month.

(3) The Chief Executive Officer must from time to time make such further disclosures to the President as are necessary to ensure that the information about the financial interests mentioned in subsection (1) is up-to-date.

42 Removal from office Removal on grounds of bankruptcy etc.


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(1) The Governor-General must remove the Chief Executive Officer from office if the Chief Executive Officer:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(c) compounds with his or her creditors; or

(d) makes an assignment of his or her remuneration for the benefit of his or her creditors.

Removal on other grounds

(2) The Governor-General must remove the Chief Executive Officer from office if the Chief Executive Officer:

(a) misbehaves or becomes physically or mentally incapacitated; or

(b) is absent, except on leave of absence, for 14 or more consecutive days or for 28 days or more in any 12 months; or

(c) fails, without reasonable excuse, to comply with section 40 (about outside employment) or 41 (about disclosure of interests); or

(d) commits a serious or continuing breach of his or her obligations under subsection 161(7) or of a requirement under subsection 108(2) or 117(2) (about compliance with directions);

and the President is satisfied that, because of this, the Chief Executive Officer should be removed from office.

Paragraph (2)(a) not limited

(3) To avoid doubt, paragraphs (2)(b) to (d) do not limit paragraph (2)(a).

43 Resignation The Chief Executive Officer may resign his or her appointment by giving the Governor-General a written resignation.

44 Other terms and conditions The Chief Executive Officer holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the President.

45 Acting Chief Executive Officer (1) The President may appoint a person to act as the Chief Executive Officer:

(a) during a vacancy in the office of Chief Executive Officer (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Chief Executive Officer is absent from duty or from Australia, or is, for any reason, unable to perform the duties of the office.

Validity of action

(2) Anything done by or in relation to a person purporting to act under an appointment under subsection (1) is not invalid merely because:

(a) the occasion for the appointment had not arisen; or

(b) there was a defect or irregularity in connection with the appointment; or

(c) the appointment had ceased to have effect; or

(d) the occasion for the person to act had not arisen or had ceased.

Division 3--Staff etc. of the Tribunal 46 Staff of the Tribunal Engagement of staff

(1) The staff necessary to assist the Chief Executive Officer are to be persons engaged under the Public Service Act 1999.

Assistance of officers or employees of other Agencies

(2) The Chief Executive Officer may arrange with an Agency Head for the services of officers or employees of the Agency to be made available for the purposes of the Tribunal. For the purposes of this Act (other than subsection (1) of this section), such officers or employees are taken to be staff of the Tribunal.

Duties of staff

(3) The Chief Executive Officer may from time to time determine in writing the duties of staff, and the place or places at which the duties are to be performed.

47 Statutory Agency for purposes of Public Service Act For the purposes of the Public Service Act 1999:

(a) the Chief Executive Officer and the APS employees (within the meaning of that Act) assisting the Chief Executive Officer together constitute a Statutory Agency; and

(b) the Chief Executive Officer is the Head of that Statutory Agency.


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48 Chief Executive Officer may engage consultants The Chief Executive Officer, on behalf of the Commonwealth, may, under written agreements, engage persons as consultants to perform services (including in respect of conferences or processes under Division 5 of Part 6 or inquiries under Division 6 of that Part).

Division 4--Other administrative matters 49 Registries of the Tribunal (1) The President must establish such Registries of the Tribunal as the President thinks fit, but there must be at least one Registry established in each State, in the Australian Capital Territory and in the Northern Territory.

(2) The President must designate one of the Registries as the Principal Registry.

50 Delegation Delegation by President

(1) Subject to this section, the President may, by writing, delegate all or any of his or her powers and functions under this Act to a member, the Chief Executive Officer, staff or a consultant.

Non-delegable powers and functions of President

(2) The President cannot delegate his or her powers or functions under subsection (1) or under any of the provisions listed in the following table:

Non-delegable powers and functions

Item

Provision

Summary of topic of provision

1

section 16

assigning members to Divisions

2

paragraph 21(1)(b)

outside employment for full-time members

3

paragraph 24(1)(a)

performance agreements for executive members

4

subsection 25(1)

code of conduct

5

subsection 26(3)

performance improvement guidelines for members

6

paragraph 28(2)(b)

removal of members

7

subsection 39(2)

leave for Chief Executive Officer

8

section 40

outside employment for Chief Executive Officer

9

section 41

disclosure of interests by Chief Executive Officer

10

subsection 42(2)

removal of Chief Executive Officer

11

subsection 45(1)

acting Chief Executive Officer

12

subsection 161(1)

practice and procedure directions

13

subsection 172(2)

referral of questions of law to the Federal Court

President's
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powers and functions that are delegable only to executive members

(3) The President cannot delegate his or her powers or functions under the provisions in the following table to anyone other than an executive member for a Division:

Powers and functions delegable only to executive members

Item

Provision

Summary of topic of provision

1

subsection 20(3)

leave for full-time members

2

subsection 20(4)

leave for part-time members

3

subsection 26(1)

performance improvement directions for members

4

subsection 31(3)

appointment of acting senior members

5

paragraph 65(1)(c)

leave for second-tier review

Delegation by executive member

(4) An executive member may, by writing, delegate his or her power under paragraph 65(1)(d) (about leave for second-tier review) to a member appointed or assigned to the executive member's Division.

51 Annual report (1) After the end of each financial year, the President must give a report to the Attorney-General, for presentation to the Parliament, on the activities of the Tribunal during the year.

(2) The report must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.

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52 Limit on powers This Part does not authorise any member, the Chief Executive Officer or any staff or consultant of the Tribunal to acquire any interest or right that would constitute an interest in land for the purposes of the Lands Acquisition Act 1989.

53 Proceedings arising out of the administration of the Tribunal Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Tribunal, including any proceeding relating to anything done by the Chief Executive Officer, may be instituted by or against the Commonwealth, as the case requires.

Part 4--Initiating review of decisions Division 1--Initiating first-tier review Subdivision A--Original decisions 54 Original decisions (1) If an enactment provides that applications may be made to the Tribunal:

(a) for the review of decisions made in the exercise of powers conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment;

the decisions are original decisions.

Subordinate legislation allowed to provide for review applications

(2) An enactment that is subordinate legislation may provide that applications may be made to the Tribunal as mentioned in subsection (1).

(3) If subordinate legislation makes provision as mentioned in subsection (1), the subordinate legislation:

(a) may be expressed to apply to all decisions made in exercise of the power or powers concerned, or to a class of such decisions; and

(b) may specify conditions subject to which applications may be made; and

(c) may require that the decisions be reviewed in a specified Division of the Tribunal;

and so far as it does so, the subordinate legislation has effect for the purposes of this Act.

Note: Subsection 7(2) also allows subordinate legislation to provide for the amendment of the operation of any provision of this Act, other than the core provisions, in relation to review of decisions.

Deemed decision not to do a thing

(4) If:

(a) decisions of a person not to do a thing are original decisions; and

(b) the enactment concerned provides for a particular period within which the person is required or permitted to do the thing; and

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

the person is taken for the purposes of this Division to have made a decision, at the end of the particular period, not to do the thing.

Note: If an enactment does not provide for a particular period within which a person is required or permitted to do a thing, section 10 of the Ombudsman Act 1976 provides in certain circumstances for the person to be deemed to have decided at a particular time not to do the thing.

55 Decision-maker Person who makes original decision

(1) The person who makes an original decision is, subject to this section, the decision-maker in relation to the decision.

Changes in duties etc.

(2) If, at any time after making the decision, the person does not have duties that require or permit the person to do the things that a decision-maker is required or permitted by this Act to do in relation to the decision, the decision-maker for that purpose is instead:

(a) if another person has those duties--that person; or

(b) if not:

(i) if the person was performing duties in an Agency when the person made the decision, and the Agency still exists--the Agency Head; or

(ii) if the person was performing duties in an organisation or body other than an Agency when the person made the decision, and the organisation or body still exists--the person who manages the organisation or body; or

(iii) in any other case--such person as the President, or another member

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authorised by the President, specifies.

Delegation

(3) An Agency Head, or a person managing an organisation or body, who becomes the decision-maker because of subparagraph (2)(b)(i) or (ii) may delegate all or any of the powers or functions conferred on the decision-maker under this Act to any person performing duties in the Agency or the organisation or body.

Subdivision B--Notice etc. if notifiable decision made 56 Notice of decision and review rights Notifiable decision

(1) Subject to subsection (5), for the purpose of this section a notifiable decision is:

(a) an original decision; or

(b) a decision that is reviewable by:

(i) a person whose decision on review is an original decision; or

(ii) a person whose decision on review is, because of subparagraph (i), a notifiable decision.

Notice

(2) A person who makes a notifiable decision must take such steps as are reasonable in the circumstances to give to any person whose interests are affected by the decision notice, in writing or otherwise, of:

(a) the making of the decision; and

(b) if the decision is an original decision--the right of the person to make an application to the Tribunal for review of the decision; and

(c) if the decision is not an original decision--the right of the person to have the decision reviewed as mentioned in paragraph (1)(b).

Guidelines

(3) In doing so, the person who makes the notifiable decision must have regard to any guidelines under subsection (4).

(4) The President may issue written guidelines to facilitate the operation of subsection (2). Such guidelines are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901.

Exceptions to definition of notifiable decision

(5) None of the following is a notifiable decision:

(a) a decision that is taken by subsection 54(4) or by section 10 of the Ombudsman Act 1976 to have been made;

(b) a decision where notice of the kind mentioned in subsection (2) is required to be given by another enactment;

(c) each of the following decisions, if the decision does not adversely affect the interests of any other person:

(i) a decision not to impose a liability, penalty or any kind of limitation on a person;

(ii) a decision making an adjustment to the level of periodic payments to be made to a person as a member of a class of persons where a similar adjustment is being made to the level of such payments to the other members of the class;

(iii) if an enactment establishes several categories of entitlement to a monetary benefit--a decision that determines a person to be in the most favourable of those categories.

Effect of failure to comply

(6) A failure to comply with this section does not affect the validity of a notifiable decision.

57 Statement of reasons for original decision Request for statement

(1) Any person whose interests are affected by an original decision may, by notice in writing given to the decision-maker, request the decision-maker to give the person a statement of reasons for the decision.

Decision-maker to comply with request for statement

(2) Subject to this section and to section 60 (about the exclusion of confidential information etc.), the decision-maker must, as soon as practicable (but in any case by the end of 28 days after the day on which the request was received), give the person the statement.

Exceptions

(3) The decision-maker is not required to give the statement if:

(a) the person has already been given a statement of reasons for the decision; or

(b) the decision itself sets out the things required to be set out in a statement of reasons, and a document setting out the terms of the decision has already been given to the person; or

(c) the terms of the decision were recorded in writing and set out in a document that was given to the person, and the person did not make the request on or before the end of 28 days after the day on which that document was given

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to the person; or

(d) the terms of the decision were not recorded in writing and set out in a document that was given to the person, and the person did not make the request within a reasonable time after the decision was made.

Notice of refusal etc.

(4) If:

(a) because of subsection (3), paragraph 60(2)(b) or for any other reason, the decision-maker refuses to give the statement; or

(b) because of paragraph 60(2)(a), the decision-maker does not include matter in the statement;

the decision-maker must give the person notice in writing of the fact, stating the reason for refusing to give the statement or for not including the matter.

When notice must be given

(5) The decision-maker must give the person the notice as soon as practicable, but before the end of 28 days after the day on which the request was made.

58 Review of refusal to give statement of reasons etc. Application for review

(1) If:

(a) the decision-maker gives the person such notice; or

(b) the decision-maker does not give the person the statement of reasons before the end of 28 days after the day on which the request was made;

the person may apply to the Tribunal for a decision about whether the decision-maker should give the statement of reasons.

Decision on application

(2) If the person does so, the Tribunal must decide whether the decision-maker should give the statement of reasons.

Effect of finding in favour of applicant

(3) If the Tribunal decides that the decision-maker should give the statement of reasons, the decision-maker must give it before the end of 28 days after the day on which the Tribunal advises the decision-maker of its decision.

59 Review of adequacy of statement of reasons Application for review

(1) If:

(a) a decision-maker gives a person a statement of reasons for an original decision; and

(b) the person considers that the statement does not contain:

(i) adequate particulars of findings on material questions of fact; or

(ii) an adequate reference to the evidence or other material on which those findings were based; or

(iii) adequate particulars of the reasons for the decision;

the person may apply to the Tribunal for a decision about whether the particulars or reference is adequate.

Requirement for additional statement

(2) If the person does so, the Tribunal must decide whether the particulars or reference is adequate. If it decides that the particulars or reference is not adequate, the decision-maker must give the person an additional statement, or additional statements, containing adequate particulars of the findings or reasons, or an adequate reference to the evidence.

When statement must be given

(3) The decision-maker must do so before the end of 28 days after the day on which the Tribunal advises the decision-maker of its decision.

60 Exclusion of confidential etc. material from statements of reasons Certificate by Attorney-General

(1) This section applies if the Attorney-General certifies in writing that the disclosure of any matter contained in a statement of reasons for an original decision, or in a statement under subsection 59(2) in relation to an original decision, would be contrary to the public interest:

(a) because it would prejudice the security, defence or international relations of Australia; or

(b) because it would involve the disclosure of deliberations of the Cabinet or of a committee of the Cabinet; or

(c) for any other reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter should not be disclosed.

Effect of certificate

(2) If this section applies, the decision-maker:

(a) is not required to include in the statement any matter in relation to which the Attorney-General has given the certificate; and

(b) if the statement would be false or misleading if it did not include such matter--is not required to give the statement.


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Certificate also applicable for purposes of any Tribunal review

(3) If the Tribunal later conducts a first-tier review of the original decision, or a second-tier review of a first-tier decision resulting from such a first-tier review, the certificate also has effect for the purposes of that later review as if it had been given under subsection 101(1) in relation to the disclosure of the information constituting the matter.

Subdivision C--Applying for first-tier review 61 Who may apply (1) A person whose interests are affected by an original decision may apply to the Tribunal for a review of the decision.

Note: For the form etc. of applications, see Division 2 of Part 9.

Applications by or on behalf of Commonwealth etc.

(2) To avoid doubt:

(a) the Commonwealth; or

(b) an authority, tribunal or other body, whether incorporated or not, that is established by an enactment; or

(c) any other person or persons in any way connected with the Commonwealth;

are not prevented from applying merely because of their status as such.

Subdivision D--Tribunal to conduct review where first-tier review application properly made 62 Tribunal to conduct first-tier review If:

(a) an application for first-tier review of an original decision is made to the Tribunal by a person entitled to apply under section 61; and

(b) the application complies with the requirements of Division 2 of Part 9 (which is about the form etc. of applications);

the Tribunal must review the decision, and Parts 5 to 9 apply to the review.

Division 2--Initiating second-tier review Note: The provisions of this Division are core provisions. Other Acts are to be interpreted as far as possible as not changing the provisions, and subordinate legislation providing for Tribunal review cannot change them: see section 7.

Subdivision A--Applying for leave to make a second-tier review application 63 Who may apply If the Tribunal makes a first-tier decision:

(a) the decision-maker in relation to the decision; or

(b) a person who was a participant at any stage in the first-tier review;

may apply to the Tribunal for leave to make an application for review of the first-tier decision.

Note: For the form etc. of applications, see Division 2 of Part 9.

64 Application to include statement of grounds An application must state the grounds on which the person makes the application.

65 Determination of application (1) If:

(a) a person applies to the Tribunal for leave to make an application for review of a first-tier decision; and

(b) the application complies with the requirements of this Division and of Division 2 of Part 9 (which is about the form etc. of applications);

then:

(c) if the Tribunal that made the first-tier decision consisted of or included an executive member--the President must decide whether or not to grant leave; or

(d) in any other case--the President, or the executive member appointed to the Division within which the first-tier decision was made, must decide whether or not to grant leave.

Grant of leave where principle, or issue, of general significance

(2) Subject to subsection (4), the President or the executive member must grant leave if the first-tier decision was made by the Tribunal constituted by a single member, and the President or the executive member is satisfied that the application raises a principle, or issue, of general significance.

Grant of leave where manifest error

(3) Subject to subsection (4), the President or the executive member must

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grant leave if:

(a) the Tribunal has been given a written agreement by:

(i) the applicant for the first-tier review concerned; and

(ii) the decision-maker in relation to the original decision;

to the effect that the first-tier decision involved a manifest error of law or fact that materially affected the first-tier decision; and

(b) the President or the executive member is satisfied that the first-tier decision involved a manifest error of law or fact that materially affected the first-tier decision; and

(c) no appeal to the Federal Court on a question of law from the first-tier decision has been made under subsection 167(1).

Leave not to be granted if agreement forgoing second-tier review right

(4) The President or the executive member must not grant leave under subsection (2) or (3) if the Tribunal has been given a written agreement, by all of the persons who were participants at any stage in the first-tier review concerned, to the effect that they forgo any right to Tribunal review of the first-tier decision.

Leave not to be granted except as provided above

(5) The President or executive member must not grant leave except in accordance with subsections (2) to (4).

Application to be decided "on the papers"

(6) Unless the President or the executive member considers there are special circumstances for doing otherwise, the decision about whether or not to grant leave must be made without the applicant for the leave or any other person being permitted or required to appear before the Tribunal.

Notice of decision

(7) The President or the executive member must give notice, to the decision-maker and each person who was a participant at any stage in the first-tier review, of his or her decision to grant or refuse leave.

Subdivision B--Applying for second-tier review 66 Who may apply A person who is granted leave to make an application for review of a first-tier decision may make the application.

Note: For the form etc. of applications, see Division 2 of Part 9.

Subdivision C--Tribunal to conduct review where second-tier review application properly made 67 Tribunal to conduct second-tier review (1) If:

(a) an application for second-tier review of a first-tier decision is made to the Tribunal by a person entitled to apply under section 66; and

(b) the application complies with the requirements of Division 2 of Part 9 (which is about the form etc. of applications); and

(c) the Tribunal has not been given a written agreement, by all of the persons who were participants at any stage in the first-tier review, to the effect that they forgo any right to Tribunal review of the first-tier decision;

the Tribunal must review the decision, and subsection (2) of this section and Parts 5 to 9 apply to the review.

(2) For the purposes of this Act, references to the decision-maker in relation to the first-tier decision are references to the decision-maker in relation to the original decision, the first-tier review of which resulted in that first-tier decision.

Part 5--Tribunal's preparations for review Note: The provisions of this Part are core provisions. Other Acts are to be interpreted as far as possible as not changing the provisions, and subordinate legislation providing for Tribunal review cannot change them: see section 7.

Division 1--Review to take place in Divisions 68 Review to take place in Divisions Review

(1) If the Tribunal is required to review a decision, the President must direct that the review is to take place within a specified Division.

Enactments requiring review in a specified Division

(2) If, under paragraph 54(3)(c) (about subordinate legislation) or a provision of another Act, a decision is required to be reviewed in a specified Division, the direction under subsection (1) of this section must specify that Division.

Directions about particular review or standing directions


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(3) A direction under this section may be given in relation to a particular review, or in relation to all review of a particular kind.

Division 2--Constitution of the Tribunal 69 Initial constitution of the Tribunal 1 to 3 members to conduct review

(1) Subject to this section, the President must direct that a single member, 2 members or 3 members are to constitute the Tribunal for the purpose of conducting the review.

When 2 or 3 members are to conduct the review

(2) The President is only to direct that 2 or 3 members are to constitute the Tribunal if the President considers that it is appropriate to do so:

(a) because the review raises a principle, or issue, of general significance; or

(b) because one or more of the members have particular expertise of relevance.

Members must be from Division specified in section 68 direction

(3) The member or members who are to constitute the Tribunal must, except in the case of a member who is the President, be persons appointed or assigned to the Division specified in the direction under section 68.

Second-tier review members not to include persons who were first-tier review members

(4) In the case of a second-tier review, the member or members who are to constitute the Tribunal must not be or include any person who was a member of the Tribunal as constituted at any time for the purposes of the first-tier review that resulted in the second-tier review.

Direction may cover timing of review etc.

(5) The direction under this section may also cover any of the following:

(a) the period during which the review is to be carried out;

(b) the place at which the review is to be conducted (which must be in Australia or in an external Territory);

(c) the manner in which, subject to this Act, the review is to be conducted;

(d) any other matter relating to the conduct of the review.

Direction may relate to particular review or to all review of a particular kind

(6) A direction under this section may be given in relation to a particular review, or in relation to all review of a particular kind (which may, for example, be described by reference to the place at which or period or periods during which the review is to be conducted).

Practice and procedure directions

(7) The practice and procedure directions may make additional provision about the giving of directions under this section.

Note: For example, the practice and procedure directions may require members who are to constitute the Tribunal for the review of particular kinds of decision to have particular qualifications or experience.

70 Reconstitution of the Tribunal where member unavailable (1) This section applies if a member (the unavailable member) who constitutes, or is one of the members who constitute, the Tribunal:

(a) stops being a member; or

(b) for any reason is not available to take part in the review.

Single member Tribunal

(2) If the unavailable member constitutes the Tribunal, the President must, having regard to the object set out in paragraph 3(c) (about providing fair, just, economical, informal and quick review) and subject to section 73, direct another member or members to constitute the Tribunal for the purpose of finishing the review.

Multiple member Tribunal

(3) If the unavailable member is one of the members who constitute the Tribunal, the President must, having regard to the object set out in paragraph 3(c) and subject to section 73:

(a) direct that the Tribunal is to be constituted for the purposes of finishing the review by the remaining member or members; or

(b) direct that the Tribunal is to be constituted for that purpose by the remaining member or members together with another member or members.

71 Reconstitution of the Tribunal for efficient conduct of review Subject to section 73, the President may, at any time during the review, direct that the Tribunal be reconstituted (whether or not it has previously been reconstituted under this Division) by:

(a) adding one or more members; or

(b) removing one or more members; or

(c) substituting one or more members;

(or any combination of these), if he or she thinks the reconstitution is in the

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interests of achieving the object set out in paragraph 3(c).

72 Reconstitution of the Tribunal on request by participants etc. Reconstitution on request by one participant

(1) A participant may, at any time during the review, apply to the Tribunal requesting that the Tribunal be reconstituted (whether or not it has previously been reconstituted under this Division).

Tribunal action on the request

(2) If a participant does so, the Tribunal must:

(a) invite the other participants to make submissions, either orally or in writing, about the request; and

(b) notify the President that the request has been made; and

(c) give the President:

(i) particulars of any submissions made in response to the invitation; and

(ii) any comments the Tribunal may wish to make in relation to the request or the submissions.

(3) Subject to section 73, the President may, after taking into account any such particulars and comments, direct that the Tribunal be reconstituted.

73 Restriction on reconstitution of the Tribunal A direction under section 70, 71 or 72 cannot be given unless the Tribunal could have been constituted, on the assumption that it were being constituted for the first time in accordance with section 69, by the member or members who, in accordance with the direction, are to constitute the Tribunal.

74 Reconstituted Tribunal to have access to previous records If the Tribunal is reconstituted for the purpose of the review, the Tribunal must continue and finish the review and may, for that purpose, have regard to:

(a) any record of the review (including of any evidence given) made by the Tribunal as previously constituted; and

(b) any document or thing relating to the review held by the Tribunal as previously constituted.

75 Compliance with directions Members must comply with any directions by the President under this Division.

Part 6--Tribunal's procedures in conducting review Division 1--Notice to decision-maker, and provision of statement of reasons and documents 76 Notice to decision-maker The Chief Executive Officer must arrange for the decision-maker to be given notice in writing of an application for:

(a) review of an original decision; or

(b) leave to make an application for review of a first-tier decision; or

(c) review of a first-tier decision.

77 Review of original decision: decision-maker to provide statement of reasons and documents (1) If the decision-maker is given notice in writing of an application for review of an original decision, the decision-maker must, subject to this section, before the end of 28 days after the day on which he or she receives notice of the application, give the Tribunal:

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

(b) every other document or part of a document that is in the decision-maker's possession or under the decision-maker's control and is relevant to the Tribunal's review of the decision.

Practice and procedure directions may vary requirements

(2) The practice and procedure directions may provide that, in relation to particular kinds of application:

(a) a different number or different numbers of days than the 28 specified in subsection (1) are to apply; or

(b) decision-makers are not required to comply with paragraph (1)(b) in relation to particular kinds of document or to all documents.

Extension of time limit

(3) The Tribunal may, on application by the decision-maker, extend the period of 28 or different number of days otherwise applicable for the purposes of subsection (1), if it is satisfied that it is reasonable in all the circumstances to do so.

(4) An application under subsection (3) may be made even after the end of

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the period.

78 Inadequate statement of reasons (1) If:

(a) in accordance with paragraph 77(1)(a), the decision-maker gives the Tribunal a statement of reasons for a decision; and

(b) the Tribunal considers that the statement does not contain:

(i) adequate particulars of findings on material questions of fact; or

(ii) an adequate reference to the evidence or other material on which those findings were based; or

(iii) adequate particulars of the reasons for the decision;

the Tribunal may give the decision-maker a notice in writing to that effect:

(c) specifying the respects in which the statement is not adequate; and

(d) requiring the decision-maker to give the Tribunal, within a period specified in the notice, an additional statement, or additional statements, containing adequate particulars of the findings or reasons, or an adequate reference to the evidence.

(2) The decision-maker must comply with the requirement.

79 Decision-maker to provide other documents the Tribunal considers relevant (1) In the case of review of either an original decision or a first-tier decision, if the Tribunal considers that the decision-maker has or may have in his or her possession or under his or her control a document that may be relevant to the review of the decision by the Tribunal, the Tribunal may give the decision-maker a notice in writing to that effect, requiring the decision-maker to give the document to the Tribunal within a specified period.

(2) If the document is in the possession or under the control of the decision-maker, the decision-maker must comply with the requirement.

80 Tribunal to be given any later documents If:

(a) at any time during the review of a decision, a document that is relevant to the review comes into the possession or under the control of a participant in the review; and

(b) the document was not one produced in connection with any participant's participation in the review;

the participant must give the document to the Tribunal before the end of 28 days after the day on which the document came into the possession or under the control of the participant.

81 Tribunal to give participants copies of documents The practice and procedure directions may require the Chief Executive Officer to arrange for a copy of any document or part of a document given to the Tribunal under any of sections 77 to 80 to be given to participants.

82 Confidentiality etc. grounds for non-compliance with sections 77 to 81 Common law grounds for non-compliance overridden

(1) Sections 77 to 81 have effect in spite of any rule of law relating to privilege or the public interest in relation to the production of documents.

Non-compliance for reasons of confidentiality

(2) If, within the period within which the decision-maker is required to give the Tribunal a document or part of a document under paragraph 77(1)(b), subsection 79(2) or section 80, the decision-maker:

(a) applies to the Tribunal under subsection (3) for a decision in relation to the document or part; and

(b) gives a copy of the application for the decision to each participant;

the decision-maker is not required to comply with the requirement:

(c) before the Tribunal makes its decision under subsection (4) on the application; and

(d) afterwards, if the decision is that the decision-maker should not be required to give the document or the part to the Tribunal.

Application for decision on confidentiality grounds

(3) If the decision-maker considers that, because of the need to protect the confidential nature of the document or part, he or she should not be required to give the document or the part to the Tribunal, he or she may apply to the Tribunal for a decision under subsection (4).

Decision by Tribunal

(4) The Tribunal must decide whether the decision-maker should or should not be required to give the document or the part to the Tribunal, and must take as the basis for making its decision the principle that it is desirable, in the interest of ensuring the effective performance of the Tribunal's functions, for the Tribunal and all participants in a review to be made aware of all relevant matters.

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83 Tribunal to give participants access to their own documents If a participant gives the Tribunal a document, the Tribunal must allow the participant to have reasonable access to the document while it is held by the Tribunal.

Division 2--Participants in review 84 Participants in review (1) Subject to paragraphs 128(1)(e) and 129(d) (about failure to attend etc.) and to this Division, each of the following is a participant in a review by the Tribunal of a decision:

(a) the applicant;

(b) the decision-maker;

(c) the Attorney-General of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory, if he or she becomes a participant under section 86;

(d) any other person, if:

(i) the person applies to the Tribunal to become a participant in the review; 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 participant in the review.

Additional participants in second-tier review

(2) In the case of a second-tier review, any person who was a participant at any time during the first-tier review concerned is also a participant.

First-tier review Tribunal members not participants in second-tier review

(3) To avoid doubt, in the case of a second-tier review, the member or members who made the first-tier decision concerned are not participants in the review.

85 When decision-maker is not a participant Decision-maker may decline to be a participant

(1) Subject to subsection (3), the decision-maker is not a participant in the review of the decision for so long as there is in force a written notice that was given to the Tribunal by the decision-maker and states that he or she does not wish to be, or to continue to be, a participant in the review.

Agency Head etc. may stop decision-maker being a participant

(2) Subject to subsection (3), the decision-maker is not a participant in the review of the decision (the subject decision) for so long as there is in force a written notice that:

(a) was given to the Tribunal by the Agency Head of the Agency, or by the person who manages the other organisation or body, in which the decision-maker is performing duties; and

(b) states that the Agency Head or person who manages the organisation or body does not wish decision-makers in relation to:

(i) all decisions; or

(ii) a specified class of decisions that covers the subject decision;

who are performing duties in the Agency, organisation or body to be, or to continue to be, participants in the review by the Tribunal of the decision-maker's decisions.

Agency Head may require decision-maker to be a participant

(3) If:

(a) the decision-maker is, because of subsection (1) or (2), not a participant in the review of the decision; and

(b) the Agency Head of the Agency, or the person who manages the organisation or body, in which the decision-maker is performing duties gives written notice to the Tribunal that he or she wishes the decision-maker to be a participant in the review;

the decision-maker is a participant in the review for so long as the notice is in force.

86 Attorney-General of Commonwealth, a State, the ACT or NT becoming, or ceasing to be, a participant Attorney-General of the Commonwealth

(1) The Attorney-General may become, or later cease to be, a participant in the review on behalf of the Commonwealth by advising the Tribunal that he or she wishes to do so.

Attorney-General of a State, the ACT or the NT

(2) If:

(a) the review is conducted by the Tribunal under power conferred on it by or under a law of a State, the Australian Capital Territory or the Northern Territory; or


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(b) the Attorney-General of a State, the Australian Capital Territory or the Northern Territory gives a certificate under subsection 101(1); or

(c) the Attorney-General of a State, the Australian Capital Territory or the Northern Territory informs the Tribunal as mentioned in subparagraph 102(1)(b)(ii);

the Attorney-General of the State or Territory may become, or later cease to be, a participant in the review on behalf of the State or the Territory by advising the Tribunal that he or she wishes to do so.

Costs

(3) If the Attorney-General of the Commonwealth becomes a participant, the Attorney-General may authorise the Commonwealth to pay another participant any costs that the Attorney-General considers the participant reasonably incurred as a result of the Attorney-General becoming a participant.

87 Other persons ceasing to be participants (1) A person who is a participant other than the applicant, the decision-maker or an Attorney General may apply to the Tribunal to cease to be a participant.

(2) If the Tribunal considers it appropriate that the person cease to be a participant, it must so direct.

Division 3--Presiding member and resolution of disagreements Note: The provisions of this Division are core provisions. Other Acts are to be interpreted as far as possible as not changing the provisions, and subordinate legislation providing for Tribunal review cannot change them: see section 7.

88 Presiding member (1) This section applies if 2 or 3 members constitute the Tribunal.

President

(2) If the members include the President, he or she presides.

Executive member

(3) If the members do not include the President, but include an executive member, the executive member presides.

Senior member

(4) If the members do not include the President or an executive member, but include one senior member, the senior member presides.

Other member

(5) Otherwise, the President must choose one of the members who constitute the Tribunal to preside.

89 Resolving disagreements 2 members

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

3 members

(2) If 3 members constitute the Tribunal and they do not agree about any matter:

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

(b) if not--the view of the presiding member prevails.

Division 4--Practice and procedure provisions 90 Procedural fairness In reviewing a decision, the Tribunal must afford procedural fairness.

Note: This section is a core provision. Other Acts are to be interpreted as far as possible as not changing the section, and subordinate legislation providing for Tribunal review cannot change it: see section 7.

91 Rules of evidence In reviewing a decision, the Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks appropriate.

Note: This section is a core provision. See the note to section 90.

92 Informality etc. In reviewing a decision, the Tribunal must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits.

Note: This section is a core provision. See the note to section 90.


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93 Controlling the scope of the review
The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.

94 Decision-maker to assist the Tribunal If the decision-maker is a participant in the review of a decision, the decision-maker must use his or her best endeavours in assisting the Tribunal to make its decision on the review.

95 Summoning witnesses and requiring documents etc. to be given Summoning persons

(1) In reviewing a decision, the Tribunal may summon a person to do either or both of the following:

(a) appear before the Tribunal to give evidence;

(b) give the Tribunal documents or things that are:

(i) in the possession or under the control of the person; and

(ii) identified in the summons.

Persons appearing before the Tribunal

(2) In reviewing a decision, the Tribunal may require a person who is appearing before the Tribunal to give evidence:

(a) to answer a question; or

(b) to give the Tribunal documents or things that are in the possession or under the control of the person.

Access to documents etc.

(3) If a person gives the Tribunal a document or thing in accordance with this section, the Tribunal must allow the person to have reasonable access to the document or thing while it is held by the Tribunal.

96 Participants appearing before the Tribunal Purposes for which participants may appear before Tribunal

(1) At any stage in the review of a decision, the Tribunal may permit a participant to appear before the Tribunal and, subject to subsection (2), do any one or more of the following in relation to the review:

(a) give evidence;

(b) make statements;

(c) present arguments;

(d) answer questions put by the Tribunal, other participants or representatives of participants;

(e) ask questions of the Tribunal, other participants, persons giving evidence to the Tribunal or representatives of participants or of persons giving evidence.

Tribunal's control over appearance by persons

(2) The Tribunal may:

(a) impose conditions on the person appearing or doing any of the one or more things; or

(b) at any time withdraw its permission to appear or do any of the one or more things; or

(c) direct the person as to the manner in which the person is to do any of the one or more things; or

(d) proceed in the absence of the person if the person has been given reasonable notice of the time at which the person is permitted to appear.

Review "on the papers"

(3) Without limiting subsection (1), when:

(a) the decision-maker has given the Tribunal the statement of reasons and any other documents required by section 77, and any other statement of reasons required by section 78; and

(b) the applicant has had an opportunity to give the Tribunal any documents he or she wishes;

the Tribunal must consider whether the review should be conducted without any participant being permitted to appear and do any of the things mentioned in subsection (1), and without any person being summoned to appear before the Tribunal to give evidence.

(4) If the Tribunal considers that the review should be conducted in the manner mentioned in subsection (3):

(a) before conducting the review in that manner, it must give notice in writing to all participants that it intends to do so, and give them an opportunity to give written submissions to the Tribunal about whether the review should be conducted in that manner; and

(b) it must take into account any such submissions; and

(c) if, after doing so, the Tribunal still considers that the review should be conducted in the manner mentioned in subsection (3), it may conduct the review in that manner, but may also at any time cease to do so.

97 Taking of evidence on behalf of the Tribunal

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(1) The Tribunal may in writing authorise:

(a) a consultant with appropriate expertise to be engaged under section 48; or

(b) a member (whether or not a member of the Tribunal as constituted for the purposes of the review), the Chief Executive Officer, staff or any other person;

to take evidence on behalf of the Tribunal in accordance with any requirements set out in the authorisation.

Single Tribunal member

(2) However, if the Tribunal is constituted by a single member, that member cannot be authorised under subsection (1).

Taking of evidence is part of conduct of review

(3) To avoid doubt, the taking of evidence in accordance with subsection (1) is part of the conduct of the review by the Tribunal.

98 Evidence on oath or affirmation (1) Any evidence given under section 95 or 96 or taken under section 97 must be on oath or affirmation.

(2) However, subsection (1) does not apply if:

(a) the practice and procedure directions so provide; or

(b) the Tribunal decides that the subsection should not apply to the giving of the evidence.

(3) An oath or affirmation must be in the form and manner prescribed by the regulations.

99 Review of first-tier decision: Tribunal to have access to first-tier review records If the Tribunal is reviewing a first-tier decision, the Tribunal may have regard to:

(a) any record (including of any evidence given) made by the Tribunal in conducting the first-tier review that resulted in that decision; and

(b) any document relating to that review held by the Tribunal.

100 Review to be in public except in special circumstances (1) Subject to this section, if a participant or any other person appears before the Tribunal in a review, that part of the review is to be in public.

Where electronic media etc. used

(2) If, when a part of a review is in public, a participant or any other person appears before the Tribunal by a means allowed under section 104 (about using electronic media etc.), the Tribunal must take such steps as are reasonably necessary to ensure that the public nature of the part of the review is preserved.

Protection of confidential nature of review

(3) The Tribunal may give such written directions as it considers appropriate to protect the confidential nature of any part of the review.

Confidentiality directions

(4) Without limiting subsection (3), such directions may:

(a) require that some or all of the part of the review take place in private and that only specified persons may be present; or

(b) prohibit or restrict the disclosure to any participant or other person of:

(i) the names and addresses of participants or other persons appearing before the Tribunal; or

(ii) statements made to the Tribunal; or

(iii) evidence given to the Tribunal; or

(iv) matters contained in documents given to the Tribunal; or

(v) the nature of other things given to the Tribunal;

whether in public or in private.

Matters to be considered by Tribunal in giving confidentiality directions about disclosure to participants

(5) The Tribunal must, in considering whether to give a direction under paragraph (4)(b) restricting disclosure to some or all of the participants, take as the basis of its consideration the principle that it is desirable, in the interest of ensuring the effective performance of the Tribunal's functions, for the participants in a review to be made aware of all relevant matters.

101 Disclosure not required: public interest certificate Public interest certificate

(1) This section applies if the Attorney-General of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory certifies in writing that the disclosure of specified information, or the disclosure of any matter contained in a specified document, for the purposes of the review of a decision would be contrary to the public interest for any of the reasons set out in subsection (2) or (3), as the case requires.

Commonwealth Attorney-General


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(2) In the case of the Attorney-General of the Commonwealth, the reasons are:

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

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

(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.

State or Territory Attorney-General

(3) In the case of the Attorney-General of a State, the Australian Capital Territory or the Northern Territory, the reasons are:

(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; or

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

Person not excused from disclosing information or giving document to the Tribunal

(4) If this section applies, a person is not excused from disclosing the information, or giving the document, to the Tribunal for the purposes of the review of a decision if the person is required by or under this Act to do so.

Tribunal to protect information or document

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

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

(i) a member of the Tribunal as constituted for the purposes of the review; or

(ii) the Chief Executive Officer, staff or a consultant in the course of the performance of his or her duties as the Chief Executive Officer, staff or a consultant; 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.

Limited disclosure

(6) If the certificate:

(a) in the case of the Attorney-General of the Commonwealth--does not specify a reason mentioned in paragraph (2)(a) or (b); or

(b) in the case of the Attorney-General of a State or Territory--does not specify a reason mentioned in paragraph (3)(a);

the Tribunal must:

(c) consider whether the information or the matter should be disclosed to all or any of the participants in the review; and

(d) if the Tribunal decides that the information or the matter should be so disclosed--make the information available, or permit the part of the document containing the matter to be inspected, accordingly.

Matters to be considered by Tribunal in allowing disclosure to participants

(7) The Tribunal must, in considering whether information or matter contained in a document should be disclosed as mentioned in subsection (6):

(a) take as the basis of its consideration the principle that it is desirable, in the interest of ensuring the effective performance of the Tribunal's functions, for the participants in a review to be made aware of all relevant matters; and

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

Exclusion of other laws

(8) 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 matter contained in documents, in a review by the Tribunal.

102 Answering questions where Attorney-General etc. intervenes on public interest grounds (1) If, in the review of a decision:

(a) a person is asked a question in the course of giving evidence; and

(b) either:

(i) the Attorney-General of the Commonwealth informs the Tribunal that, in his or her opinion, answering the question would be contrary to the public interest for a specified reason that is mentioned in subsection 101(2); or

(ii) the Attorney-General of a State, the Australian Capital Territory or the Northern Territory informs the Tribunal that, in his or her opinion, answering the question would be contrary to the public interest for a specified reason that is mentioned in subsection 101(3);

the person is, subject to subsections (2) and (3), excused from answering the question.

Court decision

(2) The person must answer the question if:

(a) either:

(i) the Attorney-General of the Commonwealth informed the Tribunal as mentioned in subparagraph (1)(b)(i) and the reason specified as mentioned

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in that subparagraph was that set out in paragraph 101(2)(a) or (b); or

(ii) the Attorney-General of a State or Territory informed the Tribunal as mentioned in subparagraph (1)(b)(ii) and the reason specified as mentioned in that subparagraph was that set out in paragraph 101(3)(a); and

(b) a court, on an appeal under section 167 or a reference under section 172, decides that answering the question would not be contrary to the public interest.

Tribunal decision

(3) The person must answer the question if:

(a) paragraph (2)(a) does not apply; and

(b) the Tribunal decides that answering the question would not be contrary to the public interest.

Appearance by Commonwealth, State or Territory Attorney-General

(4) The Attorney-General of the Commonwealth, a State or a Territory:

(a) may appear before the Tribunal personally, or may be represented before the Tribunal by a barrister, solicitor or other person, in order to inform the Tribunal of his or her opinion in accordance with this section; or

(b) may inform the Tribunal by giving the Tribunal a written certificate setting out his or her opinion.

103 Public interest questions under sections 101 and 102 Tribunal to inform participants of decisions

(1) As soon as practicable after making:

(a) a decision under subsection 101(6) in relation to information, or matter contained in a document; or

(b) a decision under paragraph 102(3)(b) in relation to the answering of a question;

the Tribunal must give each participant in the review a written statement of the terms of the Tribunal's decision.

Questions of law

(2) For the purposes of this Act, the following are questions of law:

(a) the question whether information, or matter contained in a document, should be disclosed to the participants in a review;

(b) the question whether the answering of a question would be contrary to the public interest.

104 Conduct of review using electronic media etc. (1) The practice and procedure directions may permit members or other persons to take part in any part of the review by means of:

(a) telephone; or

(b) closed-circuit television; or

(c) any other means of communication.

(2) Any member who takes part by such means is taken to be present, and any other person who does so is taken to appear before the Tribunal, for the part of the review concerned.

105 Representation Subject to subsection 102(4), if a person is required or permitted to appear before the Tribunal, he or she may choose someone else to represent him or her before the Tribunal, provided:

(a) the Tribunal agrees; and

(b) the practice and procedure directions do not prohibit him or her from doing so.

106 Other assistance (1) This section applies if a person is required or permitted to appear before the Tribunal during the review of a decision.

Person applies for assistance

(2) If:

(a) the person applies in writing to the Tribunal for permission to be assisted by an interpreter, or by someone else chosen by the person to help the person understand what is happening; and

(b) the Tribunal considers that it is appropriate for such assistance to be provided, and that the interpreter or other person chosen has suitable qualifications or skills to provide the assistance;

the person may be so assisted.

Tribunal initiates assistance

(3) If the Tribunal decides that the person should be assisted by:

(a) an interpreter made available by the Tribunal; or

(b) someone else who is chosen by the Tribunal to help the person understand what is happening and who agrees to provide that help;

the person may be so assisted.

Note: This section is a core provision. Other Acts are to be interpreted as far as possible as not changing the section, and subordinate legislation providing for Tribunal review cannot change it: see section 7.

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107 Practice and procedure directions The practice and procedure directions may deal with:

(a) the practice and procedure to be followed by the Tribunal in conducting a review; or

(b) matters and things incidental to any such practice or procedure.

Note 1: Division 10 of Part 9 deals with the making of practice and procedure directions. Amongst other things, that Division provides that the directions cannot be inconsistent with this Act.

Note 2: This section is a core provision. Other Acts are to be interpreted as far as possible as not changing the section, and subordinate legislation providing for Tribunal review cannot change it: see section 7.

108 Tribunal may determine its own practice and procedure (1) Subject to this section, the Tribunal may determine its own practice and procedure for the conduct of a review.

Tribunal may require participants etc. to do things

(2) The practice and procedure that the Tribunal determines may require the participants or other persons involved in the review to do specified things.

Explanations to participants etc.

(3) The Tribunal must take such measures as are reasonably practicable:

(a) to ensure that the participants or other persons involved in the review understand the nature of any assertions made in the review and the legal implications of those assertions; and

(b) if requested to do so--to explain to the participants or persons any aspect of the procedure of the Tribunal, or any decision made by the Tribunal, that relates to the review.

Determinations must not be inconsistent with Act etc.

(4) The Tribunal must not make a determination under this section that is inconsistent with this Act or the practice and procedure directions.

Note: This section is a core provision. Other Acts are to be interpreted as far as possible as not changing the section, and subordinate legislation providing for Tribunal review cannot change it: see section 7.

109 Power of Tribunal if participants reach agreement If, at any stage in the review of a decision:

(a) the participants agree about the terms of any decision (other than one under section 133), or about any action, that they wish the Tribunal to take in relation to the review or any part of the review; and

(b) they advise the Tribunal of their agreement; and

(c) the Tribunal is satisfied that a decision or action in, or consistent with, those terms would be within its powers;

the Tribunal may make a decision or take action in accordance with, or consistent with, those terms.

Division 5--Conferences and other processes during review 110 Conferences and other processes (1) The practice and procedure directions may permit or require that, at any time or at particular times during the review of a decision:

(a) a conference of the participants be held; or

(b) the participants take part in some other process;

for the purpose of resolving issues relevant to the review or for any other purpose relating to the review.

Note: Division 10 of Part 9 deals with the making of practice and procedure directions.

Practice and procedure applicable to the conference or process

(2) The practice and procedure directions may deal with the practice and procedure that is to apply to the conduct of the conference or other process, including:

(a) providing for members, the Chief Executive Officer, staff or consultants to preside over or perform other functions in the conference or process; and

(b) permitting members, the Chief Executive Officer, staff or consultants who preside or otherwise perform functions to decide some or all of the practice and procedure; and

(c) subject to this Act, providing for the consequences of the conference or process for the conduct of the review by the Tribunal.

Inadmissibility of statements etc. made in conferences or other processes

(3) Unless all the participants agree, evidence of, and statements about, anything said or done in such a conference or process are not admissible:

(a) in any court; or

(b) in any proceeding before a person authorised by:

(i) a law of the Commonwealth or of a State or Territory; or

(ii) the consent of the participants;


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to hear evidence or take statements.

Exclusion of member from later review

(4) If:

(a) the conference or other process is presided over by a member; and

(b) a participant notifies the Tribunal in writing that he or she objects to that member continuing to be, or becoming, a member of the Tribunal as constituted for the purposes of the review;

that member must not at any later time be a member of the Tribunal as constituted for the purposes of:

(c) the review; and

(d) if the review is a first-tier review--any second-tier review that results from the first-tier review.

Division 6--Inquiry during review 111 Inquiry by inquiry officer (1) The Tribunal may, at any stage during the review of a decision:

(a) arrange for a consultant with appropriate expertise to be engaged under section 48; or

(b) appoint a member (whether or not a member of the Tribunal as constituted for the purposes of the review), the Chief Executive Officer or staff;

(which consultant, member, Chief Executive Officer or staff is the inquiry officer) to:

(c) conduct an inquiry into any issue raised in, or other matter connected with, the review; and

(d) report to the Tribunal on the outcome of the inquiry.

(2) However, if the Tribunal is constituted by a single member, that member cannot be appointed under subsection (1).

112 Controlling the scope of the inquiry The inquiry officer may determine the scope of the inquiry by limiting the questions of fact, the evidence and the issues that he or she considers.

113 Summoning witnesses and requiring documents etc. to be given to the inquiry officer Summoning persons

(1) In conducting the inquiry, the inquiry officer may, subject to the practice and procedure directions, summon a person to do either or both of the following:

(a) appear before the inquiry officer to give evidence;

(b) give the inquiry officer documents or things that are:

(i) in the possession or under the control of the person; and

(ii) identified in the summons.

Persons appearing before the inquiry officer

(2) In conducting the inquiry, the inquiry officer may, subject to the practice and procedure directions, require a person who is appearing before the inquiry officer to give evidence:

(a) to answer a question; or

(b) to give the inquiry officer documents or things that are in the possession or under the control of the person.

Giving copies of documents to participants

(3) The practice and procedure directions may require the Chief Executive Officer to arrange for a copy of any document or part of a document given to the inquiry officer under this section to be given to the participants in the review.

Inquiry officer to give documents to Tribunal

(4) When the inquiry officer gives his or her report on the outcome of the inquiry to the Tribunal, the inquiry officer must also give the Tribunal any documents or things that were given to the inquiry officer in accordance with this section.

Access to documents etc.

(5) If a person gives the inquiry officer a document or thing, then, while the document or thing is held by the inquiry officer or by the Tribunal, the inquiry officer or the Tribunal must allow the person to have reasonable access to the document or thing.

114 Appearing before the inquiry officer (1) At any stage in the inquiry, the inquiry officer may permit a participant in the review to appear before the inquiry officer and, subject to this section, do any one or more of the following in relation to the inquiry:

(a) give evidence;

(b) make statements;

(c) present arguments;

(d) answer questions put by the inquiry officer, other participants in the review or representatives of participants;


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(e) ask questions of the inquiry officer, other participants in the review, persons giving evidence to the inquiry officer or representatives of participants or of persons giving evidence.

Inquiry officer's control over appearance by persons

(2) The inquiry officer may:

(a) impose conditions on the participant appearing or doing any of the one or more things; or

(b) at any time withdraw permission to appear or do any of the one or more things; or

(c) direct the participant as to the manner in which the participant is to do any of the one or more things; or

(d) proceed in the absence of the participant if the participant has been given reasonable notice of the time at which the participant is permitted to appear.

Section is subject to practice and procedure directions

(3) This section has effect subject to the practice and procedure directions.

115 Evidence on oath or affirmation (1) Any evidence given under section 113 or 114 must be on oath or affirmation.

(2) However, subsection (1) does not apply if:

(a) the practice and procedure directions so provide; or

(b) the inquiry officer decides that the subsection should not apply to the giving of the evidence.

(3) An oath or affirmation must be in the form and manner prescribed by the regulations.

116 Practice and procedure directions The practice and procedure directions may deal with the practice and procedure to be followed by the inquiry officer in conducting the inquiry (including permitting the inquiry officer to decide some or all of the practice and procedure).

Note 1: Division 10 of Part 9 deals with the making of practice and procedure directions.

Note 2: This section is a core provision. Other Acts are to be interpreted as far as possible as not changing the section, and subordinate legislation providing for Tribunal review cannot change it: see section 7.

117 Inquiry officer may determine inquiry practice and procedure (1) Subject to this section, the inquiry officer may determine his or her own practice and procedure for the conduct of the inquiry.

Inquiry officer may require participants etc. to do things

(2) The practice and procedure that the inquiry officer determines may require the participants in the review or other persons involved in the inquiry to do specified things.

Explanations to participants etc.

(3) The inquiry officer must take such measures as are reasonably practicable:

(a) to ensure that the participants or other persons involved in the inquiry understand the nature of any assertions made in the inquiry and the legal implications of those assertions; and

(b) if requested to do so--to explain to the participants or persons any aspect of the procedure of the inquiry officer, or any decision made by the inquiry officer, that relates to the inquiry.

Determinations not to be inconsistent with Act etc.

(4) The inquiry officer must not make a determination under this section that is inconsistent with this Act or the practice and procedure directions.

118 Adoption of inquiry officer's report etc. (1) As soon as practicable after the inquiry officer gives the Tribunal his or her report on the outcome of the inquiry, the Tribunal must give a copy of the report to the participants in the review.

(2) The Tribunal may adopt anything in the report. However, before doing so, it must:

(a) give the participants an opportunity to make submissions to it, either orally or in writing, about the content of the report; and

(b) take into account any such submissions.

119 Inquiry officer's participation in review If:

(a) the inquiry officer is a member of the Tribunal; and

(b) a participant in the review notifies the Tribunal in writing that he or she objects to that member continuing to be, or becoming, a member of the Tribunal as constituted for the purposes of the review;

that member must not at any later time be a member of the Tribunal as

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constituted for the purposes of:

(c) the review; and

(d) if the review is a first-tier review--any second-tier review that results from the first-tier review.

Part 7--Implementation or alteration of decisions while Tribunal review being conducted etc.

120 When all review and appeal action has been finalised in relation to an original decision (1) There are 2 circumstances in which all review and appeal action has been finalised in relation to an original decision.

First circumstance

(2) One circumstance is when:

(a) a first-tier decision has come into operation, where that decision resulted from a first-tier review of the original decision; and

Note: A Tribunal decision need not come into operation when it is made: see subsection 135(2).

(b) participants have become entitled to appeal to the Federal Court under section 167 from the first-tier decision; and

Note: Participants can only become entitled to appeal in limited circumstances: see subsection 167(1).

(c) either:

(i) the period for appealing has ended without any such appeals being made; or

(ii) one or more such appeals have been made, and the Federal Court or Federal Magistrates Court has determined all of them.

Second circumstance

(3) The other circumstance is when:

(a) a second-tier decision has come into operation, where:

(i) that decision resulted from a second-tier review of a first-tier decision; and

(ii) the first-tier decision resulted from a first-tier review of the original decision; and

(b) either:

(i) the period during which participants are entitled to appeal to the Federal Court under section 167 from the second-tier decision has ended without any such appeals being made; or

(ii) one or more such appeals have been made, and the Federal Court or Federal Magistrates Court has determined all of them.

121 Restriction on powers of decision-maker to implement decision during Tribunal review and Federal Court appeal Basic rule--review not to affect implementation of decision

(1) Subject to this section, the making of an application to the Tribunal for:

(a) review of an original decision; or

(b) leave to make an application for review of a first-tier decision; or

(c) review of a first-tier decision;

does not affect the operation of the decision or prevent the taking of action to implement the decision.

Pre-conditions for giving a stay direction

(2) If an application is made for review of an original decision or a first-tier decision and the requirements of subsection (5) are met, the Tribunal may give a direction in writing under subsection (3) or (4) at any time during the review of the decision.

Staying of implementation of decision during first-tier review

(3) In the case of review of an original decision, the Tribunal may direct that the operation or implementation of the decision or a part of the decision be stayed or otherwise affected for some or all of the time before all review and appeal action has been finalised in relation to the decision.

Staying of implementation of decisions during second-tier review

(4) In the case of review of a first-tier decision, the Tribunal may direct that the operation or implementation of either or both of the following:

(a) the decision or a part of the decision;

(b) the original decision whose review resulted in the first-tier decision, or a part of that original decision;

be stayed or otherwise affected for some or all of the time before all review and appeal action has been finalised in relation to the original decision.

Requirements for stay direction

(5) The requirements for the purposes of subsection (2) are that:

(a) a participant in the review has made an application requesting the Tribunal to give such a direction; and

(b) the Tribunal, after taking into account the interests of any persons who may be affected by the decision, considers it desirable to give the direction for the purpose of ensuring that the review of the decision will be effective.

Direction may be subject to conditions

(6) The direction under subsection (3) or (4) may be stated to have

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effect subject to specified conditions.

Variation or revocation of stay direction

(7) The Tribunal may, on application by any participant in the review, vary or revoke a direction under subsection (3) or (4) (including one that has previously been varied on one or more occasions under this subsection).

122 Staying decisions where earlier stay direction still in force Where first-tier stay direction in force when first-tier decision made

(1) If:

(a) during its first-tier review of an original decision, the Tribunal gives a direction under subsection 121(3) staying the operation or implementation of that decision; and

(b) the direction is in force immediately before the Tribunal makes its first-tier decision;

then, subject to this section, the operation or implementation of the following are stayed until all review and appeal action has been finalised in relation to the original decision:

(c) the original decision;

(d) the first-tier decision;

(e) any second-tier decision on any review of the first-tier decision.

Where second-tier stay direction in force when second-tier decision made

(2) If:

(a) during its second-tier review of a first-tier decision, the Tribunal gives a direction under subsection 121(4) staying the operation or implementation of either or both of the following:

(i) that decision;

(ii) the original decision whose first-tier review resulted in that decision, or a part of that original decision; and

(b) the direction is in force immediately before the Tribunal makes its second-tier decision;

then, subject to this section, the operation or implementation of the following are stayed until all review and appeal action has been finalised in relation to the original decision whose review resulted in the first-tier decision:

(c) the decision or decisions whose operation or implementation is stayed as mentioned in paragraph (a);

(d) the second-tier decision.

Ending the stay of a decision

(3) The following may direct that the operation or implementation of a decision is not stayed as mentioned in subsection (1) or (2):

(a) the Tribunal, at any time before any appeal is made to the Federal Court under section 167 from the first-tier decision or the second-tier decision mentioned in subsection (1) or (2) of this section;

(b) the Federal Court, at any time after an appeal has been made under section 167 from the first-tier decision or the second-tier decision mentioned in subsection (1) or (2) of this section and before the earlier of the following happens:

(i) the Federal Court determines the appeal;

(ii) the appeal is transferred to the Federal Magistrates Court under section 170;

(c) the Federal Magistrates Court, at any time after an appeal mentioned in paragraph (b) is transferred to it and before it determines the appeal.

123 Restriction on powers of decision-maker to alter original decision during first-tier or second-tier review (1) Subject to subsection (2) and to sections 124 and 125:

(a) during the review of an original decision, the decision-maker must not alter the decision otherwise than in accordance with this Part until all review and appeal action has been finalised in relation to the decision; and

(b) during the review of a first-tier decision, the decision-maker must not alter the original decision whose review resulted in the first-tier decision (including that original decision as varied by the first-tier decision) otherwise than in accordance with this Part until all review and appeal action has been finalised in relation to the original decision.

Exception

(2) Subsection (1) does not apply if:

(a) the enactment that authorised the making of the application expressly permits the original decision to be altered; or

(b) the participants in the review consent to the making of the alteration.

Meaning of alter

(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.

124 Request to decision-maker to reconsider decision having regard to new information etc.

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(1) If, during the review of a decision, the Tribunal becomes aware that information that it has, or that is given to it, is new information (see subsection (7)), the Tribunal must decide whether to:

(a) refer the new information to the decision-maker; and

(b) ask the decision-maker to reconsider:

(i) in the case of the first-tier review of an original decision--the original decision; or

(ii) in the case of the second-tier review of a first-tier decision--the original decision whose review resulted in the first-tier decision (including that original decision as varied by the first-tier decision);

having regard to the new information.

Factors to be taken into account

(2) In making a decision under subsection (1), the Tribunal must take into account:

(a) whether the new information was known to the applicant before the original decision was made and, if so, whether the applicant had a reasonable explanation for not informing the decision-maker about it; and

(b) whether it would be more efficient, having regard to the likely cost to the Commonwealth and any other matter, for the Tribunal not to do as mentioned in subsection (1), but instead to continue to conduct the review; and

(c) any matter required to be taken into account by the practice and procedure directions.

Reconsideration by decision-maker

(3) If the Tribunal refers the new information to the decision-maker and asks the decision-maker to reconsider the original decision having regard to the new information, the decision-maker must do so, and must then 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.

Time limit on reconsideration

(4) The decision-maker must comply with subsection (3) by the end of 28 days after the day on which the new information is referred, or by the end of such earlier or later day as the Tribunal specifies when referring the new information.

(5) The Tribunal may, on application by the decision-maker, fix a later day as the day applicable under subsection (4).

(6) If the decision-maker does not comply with subsection (3) by the end of the applicable day, he or she is taken to have affirmed the original decision.

Meaning of new information

(7) In this section:

new information means information in respect of which the following requirements are satisfied:

(a) the decision-maker was unaware of the information, or the information did not exist, at the time of making:

(i) in the case of first-tier review of an original decision--the original decision; or

(ii) in the case of second-tier review of a first-tier decision--the original decision whose review resulted in the first-tier decision;

(b) if the decision-maker had been aware of the information at that time, he or she may not have made the original decision, or may have made it in a materially different way.

125 Request to decision-maker to reconsider decision in other cases (1) Subject to subsection (3), the Tribunal may, at any time while it is conducting the review of a decision, ask the decision-maker to reconsider:

(a) in the case of first-tier review of an original decision--the original decision; or

(b) in the case of second-tier review of a first-tier decision--the original decision whose review resulted in the first-tier decision (including that original decision as varied by the first-tier decision).

Reconsideration by decision-maker

(2) If the Tribunal does so, the decision-maker must reconsider the original decision and must also 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.

Time limit on reconsideration

(3) The decision-maker must comply with subsection (2) by the end of 28 days after the day on which the Tribunal asks the decision-maker, or by the end of such earlier or later day as the Tribunal specifies when asking the decision-maker.

(4) The Tribunal may, on application by the decision-maker, fix a later day as the day applicable under subsection (3).

(5) If the decision-maker does not comply with subsection (2) by the end of the applicable day, he or she is taken to have affirmed the decision.


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Exclusion

(6) This section does not apply if the reason, or one of the reasons, for the Tribunal asking the decision-maker to reconsider the decision is that the Tribunal has become aware of new information (within the meaning of subsection 124(7)).

126 Effect of variation etc. on review Variation of decision

(1) If, as mentioned in section 123, 124 or 125, the decision-maker varies the original decision:

(a) the review becomes a first-tier review of the original decision as varied; and

(b) the applicant may either:

(i) proceed with that review; or

(ii) advise the Tribunal that the applicant does not wish to proceed with the review.

Setting aside of decision and substituting a new decision

(2) If, as mentioned in section 123, 124 or 125, the decision-maker sets an original decision aside and makes a new decision in substitution for the decision set aside:

(a) the review becomes a first-tier review of the new decision; and

(b) the applicant may either:

(i) proceed with that review; or

(ii) advise the Tribunal that the applicant does not wish to proceed with that review.

Review to end in certain cases

(3) If:

(a) the applicant advises the Tribunal as mentioned in subparagraph (1)(b)(ii) or (2)(b)(ii); or

(b) as mentioned in section 123, the decision-maker sets an original decision aside without making a new decision in substitution for the decision set aside;

the review ends.

Part 8--Completion or early ending of Tribunal review Division 1--Ending review early Note: In addition to the cases set out in this Division, subsection 126(3) (which applies if the decision-maker reconsiders the original decision in the course of a review) may result in the review ending early.

127 Applicant may end review The applicant may, in the manner set out in the practice and procedure directions, end the review of a decision at any time.

128 Failure of participant to attend review (1) If a participant in the review of a decision (other than the decision-maker or an Attorney-General) fails to appear, or to be represented by another person, at:

(a) any part of the review in which participants are required to appear before the Tribunal; or

(b) a conference or other process that participants are required to take part in under section 110; or

(c) any part of an inquiry in which participants are required to appear before an inquiry officer under section 111;

the Tribunal may:

(d) if the participant is the applicant--end the review; or

(e) in any other case--direct that the participant ceases to be a participant in the review.

Appropriate notice

(2) The Tribunal must be satisfied that appropriate notice was given to the participant of the time and place of the part of the review, conference, process or inquiry before exercising its powers under subsection (1).

Participation by electronic media etc.

(3) For the purposes of subsection (1), a participant is taken to appear, or to be represented by another person, at a part of the review, conference, process or inquiry if the participant or the participant's representative participates by a means allowed under section 104 (in the case of the review) or an equivalent provision of the practice and procedure directions (in the case of a conference, process or inquiry).

129 Failure of participant to comply with practice and procedure directions etc.

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If a participant in the review of a decision (other than the decision-maker or an Attorney-General) fails, without reasonable excuse, to comply with:

(a) any practice and procedure direction; or

(b) any direction given or obligation imposed by the Tribunal in conducting the review or by an inquiry officer in conducting an inquiry;

the Tribunal may:

(c) if the participant is the applicant--end the review; or

(d) in any other case--direct that the participant ceases to be a participant in the review.

Note: A failure to comply with a direction or obligation may also be an offence under section 149 (about contempt of the Tribunal).

130 Frivolous or vexatious applications (1) The Tribunal may end the review of an original decision if, at any stage of the review, the Tribunal is satisfied that the application for the review is frivolous or vexatious.

Direction that applicant not make further application for review

(2) If the Tribunal does so, it may by writing, on the application of a participant in the review, direct that the applicant must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

131 Agreement to forgo second-tier review If, in the case of a second-tier review of a first-tier decision, the Tribunal is given a written agreement, by all the persons who were participants at any stage in the first-tier review that resulted in the first-tier decision, to the effect that they forgo any right to have the Tribunal review the first-tier decision, the second-tier review ends.

132 Reinstatement of review Application for reinstatement

(1) If the Tribunal ends its review of a decision, a participant in the review may apply to the Tribunal for reinstatement of the review.

Power to reinstate

(2) If such an application is made, the Tribunal may reinstate the review and give such directions as it thinks appropriate in relation to the conduct of the review as a consequence of the reinstatement.

Guidelines

(3) The practice and procedure directions may include guidelines to be complied with by the Tribunal in exercising the power conferred by subsection (2).

Division 2--Tribunal's decision on the review etc. 133 Tribunal's decision on the review Powers of Tribunal in reviewing an original decision

(1) For the purposes of reviewing an original decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the decision-maker.

Decision on review of original decision

(2) The Tribunal must make a decision in writing:

(a) affirming the original decision; or

(b) varying the original decision; or

(c) setting aside the original decision and:

(i) making a decision in substitution for the decision so set aside; or

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

Powers of Tribunal in reviewing a first-tier decision

(3) In reviewing a first-tier decision, the Tribunal may exercise all the powers and discretions that are conferred by subsections (1) and (2) on the Tribunal in reviewing the original decision that resulted in the first-tier decision.

Decision on review of first-tier decision

(4) The Tribunal must make a decision in writing:

(a) affirming the first-tier decision; or

(b) varying the first-tier decision; or

(c) setting aside the first-tier decision and making a decision in substitution for the decision so set aside.

Note: The Tribunal does not have power to remit the matter to the first-tier review Tribunal for reconsideration, but it could remit it to the decision-maker in respect of the original decision by varying or replacing the first-tier decision.

Agreement about terms of Tribunal's decision


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(5) If:

(a) the participants agree about the terms of the decision that they wish the Tribunal to make under this section; and

(b) they advise the Tribunal in writing of their agreement; and

(c) the Tribunal is satisfied that a decision in those terms would be within its powers;

the Tribunal may make a decision in those terms.

134 Tribunal's decision has effect in certain cases as a decision of the decision-maker (1) If a first-tier decision:

(a) varies an original decision; or

(b) sets aside an original decision and makes a new decision in substitution for the original decision;

the original decision as varied, or the new decision made in substitution, is, subject to subsection (3), taken to be a decision of the decision-maker for all purposes.

(2) If a second-tier decision, by affirming, varying or setting aside a first-tier decision as mentioned in subsection 133(4), results in:

(a) the variation of an original decision; or

(b) the setting aside of an original decision and the making of a new decision in substitution for the original decision;

the original decision as varied, or the new decision made in substitution, is, subject to subsection (3), taken to be a decision of the decision-maker for all purposes.

(3) Subsections (1) and (2) do not have effect for the purposes of applications to the Tribunal for review under Part 4 or of appeals to the Federal Court on questions of law under section 167.

135 When a decision of the Tribunal etc. comes into operation Decision comes into operation immediately

(1) Subject to this section and to section 122 (about staying etc. decisions), a decision of the Tribunal under section 133 comes into operation immediately after it is made.

Tribunal may specify a later day

(2) The Tribunal may specify in the decision that it is not to come into operation until a later day specified in the decision. If a later day is so specified, the decision comes into operation on that day.

When variations etc. of original decisions have effect

(3) When a decision of the Tribunal to which section 134 applies comes into operation:

(a) the original decision as varied; or

(b) the new decision made in substitution for the original decision;

has effect, or is taken to have had effect, unless the Tribunal otherwise orders, on and from the day on which the original decision has or had effect.

136 Reasons etc. for Tribunal's decision on the review Giving reasons

(1) Subject to section 101 (which limits disclosure where a public interest certificate is given), the Tribunal:

(a) must give reasons either orally or in writing for any decision under subsection 133(2) or (4); and

(b) may give reasons either orally or in writing for any decision under subsection 133(5).

Copy of decision to be given to each participant

(2) The Tribunal must:

(a) give a copy of any decision under section 133; and

(b) if the Tribunal gives reasons for the decision in writing--give a copy of those reasons;

to each person who was a participant at the end of the review and, if the decision-maker was not such a participant, to the decision-maker.

Participant may request written reasons

(3) If the Tribunal gives reasons for its decision orally, a person who is given a copy of the decision in accordance with paragraph (2)(a) may, before the end of 28 days after the day on which the copy is given, request the Tribunal to give the person its reasons for the decision in writing.

(4) The Tribunal must comply with the request before the end of 28 days after the day on which it receives the request.

Written reasons to contain findings on material questions of fact etc.

(5) In any case in which the Tribunal gives reasons for its decision in writing, those reasons must set out the Tribunal's findings on material questions of fact and refer to the evidence or other material on which those findings were based.

Publication of decision and reasons

(6) The Tribunal may publish its decision and any reasons for the decision. However, if relevant, it must do so in a version that is consistent with any

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direction under subsection 100(3) (about confidentiality) and gives effect to any obligation under paragraph 101(5)(a) (about non-disclosure of information etc. covered by a public interest certificate).

137 Evidence of decision and reasons Copy of decision admissible as prima facie evidence

(1) A document:

(a) purporting to be a copy of a decision of the Tribunal, or a copy of the reasons for such a decision; and

(b) purporting to be certified by the Chief Executive Officer to be a true copy of the decision, or of those reasons;

is, in any proceeding, prima facie evidence of the decision or reasons.

Oral reasons not admissible

(2) If the Tribunal gives reasons for its decision orally and does not publish those reasons or later give them in writing, evidence of those reasons is not admissible:

(a) in any court (whether exercising federal jurisdiction or not); or

(b) in any proceeding before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the participants, to hear evidence.

138 Tribunal may correct decisions (1) If, after the Tribunal makes a decision under section 133, the Tribunal is satisfied that there is an obvious error in the text of:

(a) the decision; or

(b) written reasons for the decision;

the Tribunal may alter the text of the decision or the reasons.

Altered text becomes decision

(2) If the text of a decision or reasons is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.

Examples of obvious errors

(3) The following are examples of obvious errors in the text of a decision or reasons:

(a) an obvious clerical or typographical error;

(b) an inconsistency between the decision and the reasons.

Who may exercise powers under this section

(4) The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the review that resulted in the decision.

139 Return of documents etc. at completion of review (1) If all review and appeal action has been finalised in relation to an original decision, the President may return a document, or any thing, given to the Tribunal for the purposes of the review, to the decision-maker or other person who gave it.

(2) If the Federal Court or the Federal Magistrates Court returns to the Tribunal a document or thing sent to the Court in accordance with subsection 173(3) or (4) in connection with a proceeding before the Court, the President may return the document or thing to the person who gave it to the Tribunal.

Part 9--Other review and related matters Division 1--Part applies to conduct of review and performance of related Tribunal functions 140 Application of Part to conduct of review and performance of related Tribunal functions Except as otherwise provided, this Part applies in relation to:

(a) the review by the Tribunal of decisions that it is required to conduct by sections 62 and 67, and the doing of things by members, participants, the Chief Executive Officer, staff, consultants and other persons in that review; and

(b) the doing of any other thing (the performance of a related Tribunal function) by the Tribunal, members, the Chief Executive Officer, staff, consultants and other persons under Parts 4 to 8 or this Part, or under a provision of another Act.

Note: An example of the performance of a related Tribunal function is making a decision under subsection 58(2) whether a decision-maker is required to give a statement of reasons for a decision.

Division 2--Applications

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141 Form, and manner of making, of applications
(1) An application to the Tribunal must be in the form and manner applicable under the practice and procedure directions.

(2) The Chief Executive Officer is to ensure that persons who ask for assistance in:

(a) making applications to the Tribunal; and

(b) participating in any review or the performance of any related Tribunal function;

are given reasonable assistance to do so.

142 Time limits for making applications Regulations may provide time limits

(1) If the regulations provide that an application to the Tribunal must be made by a specified time, the application must, subject to this section, be made by that time.

Tribunal may extend time limits

(2) The Tribunal may, on application, fix a later time as the time by which a particular application mentioned in subsection (1) must be made, if:

(a) where paragraph (b) does not apply--the Tribunal is satisfied that it is reasonable in all the circumstances to do so; or

(b) where the regulations provide that the Tribunal is to be satisfied about specified matters for the purposes of this subsection--the Tribunal is satisfied about those matters.

Extension applications after time limit in regulations has passed

(3) An application under subsection (2) may be made even after the time specified in the regulations has passed.

143 Fees for making applications Application to be accompanied by fee or waiver application

(1) If the regulations provide that a fee is payable for making an application (the primary application) to the Tribunal, the application must be accompanied by:

(a) the fee; or

(b) an application for waiver of the fee.

Waiver of fee

(2) If an application for waiver of the fee is made, the Tribunal must decide, in accordance with the regulations, whether to waive the fee.

Consequence if fee not waived

(3) If the Tribunal does not waive the fee:

(a) the applicant must pay the fee within 14 days after the Tribunal gives written notice of its decision to the applicant; and

(b) if the applicant does not do so, the primary application does not comply, and is taken never to have complied, with the requirements of this section.

Division 3--Legal protection and liabilities of members and other persons 144 Legal protection and liabilities of members and other persons Protection of members

(1) A member has, in performing his or her duties, the same protection and immunity as a Justice of the High Court.

Protection of Chief Executive Officer, staff and consultants

(2) If the Chief Executive Officer, staff or a consultant performs any of the following duties:

(a) presiding over or performing other functions in relation to a conference or other process under Division 5 of Part 6;

(b) as an inquiry officer, conducting an inquiry and reporting to the Tribunal under Division 6 of Part 6;

he or she has, in performing those duties, the same protection and immunity as a Justice of the High Court.

Protection and liabilities of participants etc.

(3) Each of the following persons:

(a) a participant or other person involved in a review;

(b) a person involved in a conference or process under Division 5 of Part 6 or an inquiry under Division 6 of that Part;

when appearing before, or giving documents or things to, the Tribunal, or when appearing or giving documents or things at the conference, process or inquiry:

(c) has the same protection as a witness in a proceeding in the High Court; and

(d) is, in addition to being subject to the penalties provided by this Act, subject to the same liabilities as a witness in a proceeding in the High Court.

Protection of representatives etc.


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(4) A person:

(a) appearing before the Tribunal to represent or otherwise assist a participant or person involved in a review; or

(b) appearing at a conference or process under Division 5 of Part 6 or an inquiry under Division 6 of that Part to represent or otherwise assist a person involved in the conference, process or inquiry;

has the same protection and immunity as a barrister has in appearing for a party in a proceeding in the High Court.

Division 4--Offences 145 Failure to comply with summons etc. Failure to give evidence

(1) A person summoned to appear before the Tribunal or an inquiry officer to give evidence must not refuse or fail to comply with the summons.

Refusal to produce document etc.

(2) A person summoned, or otherwise required, to give the Tribunal or an inquiry officer a document or other thing must not refuse or fail to comply with the summons or requirement.

Penalty: 30 penalty units or imprisonment for 6 months.

146 Refusal to take oath etc. or to answer questions Refusal to take oath etc.

(1) A person appearing before the Tribunal or an inquiry officer to give evidence that is required to be given on oath or affirmation must not refuse or fail to take an oath or to make an affirmation.

Refusal to answer questions

(2) A person appearing before the Tribunal or an inquiry officer to give evidence must not refuse or fail to answer a question that he or she is required by the Tribunal or the inquiry officer to answer.

Penalty: 30 penalty units or imprisonment for 6 months.

147 False or misleading evidence A person must not give evidence, to the Tribunal or an inquiry officer, that the person knows to be false or misleading in a material particular.

Penalty: 60 penalty units or imprisonment for 12 months.

148 Failure to comply with confidentiality direction A person must not refuse or fail to comply with a direction by the Tribunal under subsection 100(3).

Penalty: 30 penalty units or imprisonment for 6 months.

149 Contempt of Tribunal A person must not obstruct or hinder the Tribunal, a member or an inquiry officer in the exercise of powers or performance of functions under this Act.

Penalty: 60 penalty units or imprisonment for 12 months.

150 Application of Criminal Code Chapter 2 of the Criminal Code applies to all offences against this Division.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Division 5--Confidentiality of information 151 Confidential information not to be disclosed Persons to whom section applies

(1) This section applies to a person who is, or has been, a member, the Chief Executive Officer, staff or a consultant.

Persons not competent etc. to give evidence or required to produce document

(2) A person to whom this section applies:

(a) is not competent, and must not be required, to give evidence to a court relating to a matter; and

(b) must not be required to produce in court a document;

if any of subsections (3) to (7) applies.

Where confidentiality grounds for non-compliance with sections 77 to 81


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(3) This subsection applies if the giving of the evidence, or the production of the document, would disclose the contents of a document or part of a document that the Tribunal decided under subsection 82(4) should not be required to be given to the Tribunal.

Application for decision under subsection 82(4) pending

(4) This subsection applies if:

(a) an application has been made to the Tribunal for a decision under subsection 82(4) about whether a document or part of a document should be required to be given to the Tribunal; and

(b) the Tribunal has not made its decision; and

(c) the giving of the evidence, or the production of the document, would disclose the contents of the document or part.

Breach of confidentiality direction

(5) This subsection applies if the giving of the evidence, or the production of the document, would be contrary to a direction of the Tribunal in force under subsection 100(3) (about confidentiality).

Application for confidentiality direction pending

(6) This subsection applies if:

(a) an application has been made to the Tribunal for a direction under subsection 100(3) concerning the matter to which the evidence would relate or in relation to the document; and

(b) the Tribunal has not determined the application.

Breach of public interest certificate

(7) This subsection applies if:

(a) a certificate under section 101 (about public interest certificates) is in force certifying that the disclosure of information concerning the matter to which the evidence would relate, or of matter contained in the document, would be contrary to the public interest for the reason mentioned in subsection 101(2) or (3), as the case may be; and

(b) if paragraph (2)(a) of this section applies and the certificate does not specify a reason mentioned in paragraph 101(2)(a) or (b) or (3)(a), as the case may be--the Tribunal has not made information concerning that matter available to the participants in a review conducted by the Tribunal and, if the information is contained in a document, has not permitted those participants to inspect the document; and

(c) if paragraph (2)(b) of this section applies and the certificate does not specify a reason mentioned in paragraph 101(2)(a) or (b) or (3)(a), as the case may be--the Tribunal has not permitted the participants in a review conducted by the Tribunal to inspect the document.

Persons not required to give evidence

(8) A person to whom this section applies must not be required to give evidence to a court in relation to any review conducted by the Tribunal.

Definitions

(9) In this section:

court includes any tribunal, authority or person (other than the Ombudsman) having power to require the production of documents or the answering of questions.

produce includes permit access to.

152 Application of confidentiality provisions in other Acts (1) If:

(a) a provision of an enactment (other than this Act) prohibits the disclosure, whether absolutely, in certain circumstances only or subject to conditions, of information by persons who:

(i) are included in a particular class of persons; and

(ii) acquired the information in the course of their duties under the enactment; and

(b) a person who is, or has been, a member, the Chief Executive Officer, staff or a consultant has acquired or acquires any such information in the course of his or her duties as such a person;

the provision applies to the person as if he or she were included in the particular class of persons and acquired the information in the course of performing his or her duties under the enactment.

(2) To avoid doubt, subsection (1) applies even if the information has been communicated to the Tribunal in evidence, a statement or a document given or made in the course of a review.

Division 6--Fees for witnesses 153 Fees for witnesses Prescribed fees and allowances

(1) A person summoned to appear before the Tribunal or an inquiry officer to give evidence is entitled to be paid, for his or her attendance, any fees, and allowances for expenses, that may be prescribed by the regulations.

Who must pay fees and allowances

(2) The fees and allowances must be paid:


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(a) if the person was summoned at the request of a participant (other than the decision-maker) in the review of an original decision or a first-tier decision--by the participant; or

(b) in any other case--by the Commonwealth.

(3) The Tribunal may direct that the fees and allowances of a person referred to in paragraph (2)(a) be paid, in whole or in part, by the Commonwealth.

Witness may recover fees and allowances

(4) If the Tribunal does not give a direction under subsection (3), the fees and allowances payable by the participant mentioned in paragraph (2)(a) are recoverable by the person mentioned in that paragraph as a debt due to the person by the participant.

Division 7--Legal assistance and costs 154 Legal assistance Applications

(1) A person (other than a member, the Chief Executive Officer, staff or a consultant) who:

(a) proposes to become, or is or has been, involved in a review (as a participant or otherwise) or in the performance of a related Tribunal function; or

(b) proposes to institute a proceeding, or is a party to a proceeding instituted, before a court in respect of a matter arising under this Act;

may apply to the Attorney-General for the provision of assistance under this section.

Authorisation of assistance

(2) If the Attorney-General is satisfied that:

(a) it would involve hardship to that person to refuse the application; and

(b) in all the circumstances, it is reasonable that the application should be granted;

the Attorney-General may authorise the provision by the Commonwealth to the person, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance in relation to the matter covered by paragraph (1)(a) or (b) as the Attorney-General determines.

155 Participants to bear their own costs Each participant in a review or person (other than a member, the Chief Executive Officer, staff or a consultant) involved in the performance of a related Tribunal function must bear his or her own costs.

156 Procedure for taxing costs Taxing costs

(1) If:

(a) the Tribunal, under any other Act, requires a person (other than a member, the Chief Executive Officer, staff or a consultant) who is or was involved in a review (as a participant or otherwise) or in the performance of a related Tribunal function (the payer) to pay to another participant or person involved (the payee) the reasonable costs incurred by the payee; and

(b) the payer and payee are unable to agree as to the amount of those costs;

the Tribunal, on application by either the payer or payee:

(c) may tax those costs; or

(d) may give such directions as it thinks appropriate for the costs to be taxed by the Chief Executive Officer or staff.

Application for review of amount taxed

(2) If the costs are taxed by the Chief Executive Officer or staff, either the payer or payee may apply to the Tribunal for review of the amount so taxed.

Review of amount taxed

(3) If such an application is made, the Tribunal must review the amount taxed and may:

(a) affirm the amount; or

(b) set aside the amount and substitute another amount; or

(c) set aside the amount and remit the costs to the Chief Executive Officer or staff to be taxed again in accordance with the directions of the Tribunal.

Amounts recoverable as debts

(4) An amount that the payer is required by the Tribunal to pay to the payee is recoverable by the payee as a debt due to the payee by the payer.

Division 8--Giving documents etc. 157 Giving documents etc. to the Tribunal or an inquiry officer

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If a person is permitted or required by this Act to give the Tribunal or an inquiry officer a document or thing, the person must do so:

(a) by giving the document or thing to the Chief Executive Officer or staff at a Registry; or

(b) by a method set out in the practice and procedure directions.

158 Giving copies of documents to Tribunal etc. (1) If a person is permitted or required by this Act to give a document to any of the following (the recipient):

(a) the Tribunal; or

(b) an inquiry officer; or

(c) the Chief Executive Officer or staff;

the person may instead give a copy of the document.

(2) However, if the recipient so requires, the copy must be certified to be a true copy of the document. This must be done in accordance with the practice and procedure directions.

(3) If the person gives a copy of a document in accordance with this section, this Act applies to the copy in the same way as it would if the document itself had been given.

159 Giving documents etc. to decision-maker When section applies

(1) This section applies if the Tribunal or any person is permitted or required under this Act to give a document or thing to the decision-maker in relation to an original decision.

Giving documents etc. to Agency Head

(2) If this section applies, the Tribunal or other person may instead give the document or thing to the Agency Head for the Agency administered by the Minister who administers:

(a) the enactment under which the original decision was made; or

(b) if that enactment was made under a power contained in another enactment--that other enactment.

Giving documents etc. to holder of office

(3) If:

(a) this section applies; and

(b) the regulations or any other enactment prescribes the holder of a particular office as a person to whom documents or things may be given under this Act in relation to a class of decisions that includes the original decision;

the Tribunal or other person may instead give the document or thing to the holder of that office.

Note: Sections 28A and 29 of the Acts Interpretation Act 1901 deal with the manner in which the documents may be given.

Division 9--Advisory opinions 160 Advisory opinions (1) If an enactment provides for the Tribunal to give an advisory opinion, the Tribunal may inform itself in such manner as it thinks appropriate for the purpose of giving the opinion.

(2) If subordinate legislation provides that applications may be made to the Tribunal for the review of decisions as mentioned in subsection 54(2), that legislation may also provide for the Tribunal to give advisory opinions on matters or questions relating to the making of such decisions.

Division 10--Practice and procedure directions Note: The provisions of this Division are core provisions. Other Acts are to be interpreted as far as possible as not changing the provisions, and subordinate legislation providing for Tribunal review cannot change them: see section 7.

161 Practice and procedure directions Matters covered by directions

(1) The President, the responsible Minister for a Division or the executive member appointed to a Division may issue directions in writing about any thing required or permitted by another provision of this Act to be dealt with in the practice and procedure directions.

Note: An example is section 107 (about the Tribunal's conduct of the review of decisions).

Scope of directions by President

(2) The directions that the President issues are to relate to the Tribunal as a whole, to any one or more of its Divisions or to any class of matters.


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Scope of directions by responsible Ministers and executive members

(3) The directions that a responsible Minister for a Division, or an executive member appointed to a Division, issues are to relate only to the Division or to a class of matters within the Division.

Pre-conditions for issue of directions

(4) In preparing directions for issue under this section:

(a) in the case of directions for issue by the President--the President must consult the executive members; and

(b) in the case of directions for issue by an executive member--the executive member must consult the President; and

(c) in any case--the person preparing the directions must have regard to the objects set out in section 3.

Directions not to be inconsistent with this Act

(5) Directions under this section must not be inconsistent with this Act.

Note: Some provisions of this Act allow the practice and procedure directions to prevail over provisions of this Act (for example, see subsection 113(1)).

Resolving inconsistencies in directions by different persons

(6) Directions issued by a responsible Minister prevail over directions issued by the President or by an executive member, to the extent of any inconsistency. Directions issued by the President prevail over directions issued by an executive member, to the extent of any inconsistency.

Compliance with directions

(7) Members, the Chief Executive Officer, staff, consultants, participants and other persons must comply with any applicable directions under this section.

Division 11--Performance of related Tribunal functions Note: The provisions of this Division are core provisions. Other Acts are to be interpreted as far as possible as not changing the provisions, and subordinate legislation providing for Tribunal review cannot change them: see section 7.

162 Related Tribunal functions to be performed in Divisions (1) The President must direct that the performance of any related Tribunal function is to take place in a specified Division.

Enactments requiring review in a specified Division

(2) If:

(a) under paragraph 54(3)(c) (about subordinate legislation) or a provision of another Act, a decision is required to be reviewed in a specified Division; and

(b) the performance of the related Tribunal function relates to that decision;

the direction under subsection (1) of this section must also specify that Division.

Note: An example of the effect of subsection (2) would be that the Division in which the Tribunal would decide whether a statement of reasons for a decision was adequate would be the same as the Division in which any subsequent review of the decision would take place.

Directions on a particular occasion or standing directions

(3) A direction under subsection (1) may be given in relation to the performance of a related Tribunal function on a particular occasion, on all occasions of a particular kind or on all occasions.

163 Constitution and reconstitution of Tribunal etc. Division 2 of Part 5 and Division 3 of Part 6 apply in the same way to the performance of a related Tribunal function as they do to the conduct of a review that the Tribunal is required to conduct by section 62 or 67.

164 Procedural fairness etc. Sections 90 to 92 apply in the same way to the performance of a related Tribunal function as they do to the conduct of a review that the Tribunal is required to conduct by section 62 or 67.

165 Other practice and procedure matters (1) The practice and procedure directions may deal with:

(a) the practice and procedure to be followed in performing a related Tribunal function; or

(b) matters and things incidental to any such practice or procedure.

(2) Section 108 applies in the same way to the performance of a related Tribunal function as it does to the conduct of a review that the Tribunal is required to conduct by section 62 or 67.

Part 10--Appeals and references to the Federal Court etc.

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Division 1--Application of Part to powers conferred on Tribunal under laws of various jurisdictions 166 Part applies whether Tribunal's power conferred by an enactment or by a law of a State, the ACT or the NT (1) This Part applies in relation to the review by the Tribunal of an original decision or a first-tier decision under power conferred on it by or under:

(a) an enactment; or

(b) a law of a State, the Australian Capital Territory or the Northern Territory.

(2) This Part has effect in relation to the review by the Tribunal of an original decision or a first-tier decision under power conferred on it by a law of a State, the Australian Capital Territory or the Northern Territory as if a reference in this Part to a provision of this Act that is not in this Part were a reference to that provision as applying as a law of the State or the Territory.

Division 2--Appeals 167 Appeals to Federal Court Appeal to Federal Court from first-tier decisions

(1) A person who was a participant at any stage in a first-tier review may appeal to the Federal Court on a question of law from the first-tier decision on that review if:

(a) an application by the person under section 63 for leave to apply for Tribunal review of the first-tier decision has been refused; or

(b) an application by the person under subsection 142(2) for the Tribunal to extend the period within which an application under section 63 may be made has been refused; or

(c) the Tribunal has, by the time the appeal is made, been given a written agreement, by all of the persons who were participants at any stage in the first-tier review, to the effect that they forgo any right to Tribunal review of the first-tier decision; or

(d) the first-tier decision was made by the Tribunal constituted by 2 or 3 members and no application under section 66 for review of the first-tier decision has been made.

Note: An application for review of a first-tier decision made by the Tribunal constituted by 2 or 3 members can only be made where subsection 65(3) (which is about manifest error of law or fact) applies.

Appeal to Federal Court from second-tier decisions

(2) A person who was a participant at any stage in a second-tier review may appeal to the Federal Court on a question of law from the decision on that review.

Appeal to Federal Court about whether first-tier review applicant's interests are affected by original decision

(3) If:

(a) a person applies under section 61 for the review of an original decision; and

(b) the Tribunal decides that the person cannot do so because the person's interests are not affected by the decision;

the person may appeal to the Federal Court from the decision of the Tribunal.

Appeal to Federal Court about whether interests of person applying to become a participant are affected

(4) If:

(a) a person applies under section 84 to be made a participant in the review of a decision; and

(b) the Tribunal decides that the person is not entitled to be made a participant because the person's interests are not affected by the decision;

the person may appeal to the Federal Court from the decision of the Tribunal.

Appeal to Federal Court about adequacy of statement of reasons

(5) If the Tribunal makes a decision under subsection 59(2) (about the adequacy of a statement of reasons), the decision-maker, or the person, mentioned in that subsection may appeal to the Federal Court from the decision of the Tribunal.

Appeal to Federal Court from Tribunal decision about public interest

(6) If the Tribunal makes a decision under subsection 101(6) or 102(3) (about the public interest in disclosing information or documents or in answering questions), a person who is a participant in the review at the time may appeal to the Federal Court from the decision of the Tribunal.

Appeal to Federal Court on question of law about public interest

(7) If:

(a) as mentioned in subparagraph 102(1)(b)(i), the Attorney-General of the Commonwealth informs the Tribunal that, in his or her opinion, answering a question would be contrary to the public interest, and a reason specified is that set out in paragraph 101(2)(a) or (b); or

(b) as mentioned in subparagraph 102(1)(b)(ii), the Attorney-General of a State, the Australian Capital Territory or the Northern Territory informs the Tribunal that, in his or her opinion, answering a question would be contrary to

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the public interest, and a reason specified is that set out in paragraph 101(3)(a);

a person who is a participant in the review at the time may appeal to the Federal Court for a decision on the question of law whether answering the question would be contrary to the public interest.

168 Time limits etc. for instituting appeals Appeals from first-tier decisions where refusal of leave for second-tier review

(1) Subject to subsection (6), an appeal by a person on grounds set out in paragraph 167(1)(a) must be made before the end of 28 days after the day on which the person is notified of the refusal of leave mentioned in that paragraph.

Appeals from first-tier decisions where refusal of extension of time to apply for leave for second-tier review

(2) An appeal by a person under paragraph 167(1)(b) can only be made within a period that the Federal Court considers reasonable in all the circumstances.

Other appeals from first-tier decisions

(3) Subject to subsection (6), an appeal by a person on grounds set out in paragraph 167(1)(c) or (d) can only be made before the end of 28 days after the day on which the person is given a copy of the first-tier decision mentioned in that paragraph.

Appeals on question of law about public interest

(4) Subject to subsection (6), an appeal by a person under subsection 167(7) must be made before the end of 28 days after the day on which the person is notified that the Attorney-General concerned has informed the Tribunal as mentioned in that subsection.

Other appeals

(5) Subject to subsection (6), any other appeal by a person on grounds set out in section 167 must be made before the end of 28 days after the day on which a document setting out the terms of the Tribunal's decision mentioned in that section is given to the person.

Extension of time limit

(6) The Federal Court may, on application by the person, extend the period of 28 days mentioned in subsection (1), (3), (4) or (5) if it is satisfied that it is reasonable in all the circumstances to do so.

(7) An application under subsection (1), (3), (4) or (5) may be made even after the end of the period of 28 days.

Manner of making appeal

(8) An appeal by a person under section 167 must be made in such manner as is prescribed by Rules of Court made under the Federal Court of Australia Act 1976.

169 Jurisdiction of Federal Court to determine appeals (1) The Federal Court has jurisdiction to hear and determine an appeal made to it under section 167.

Federal Court to hear and determine appeal

(2) The Federal Court must hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

Examples of orders Federal Court may make

(3) Without limiting subsection (2), the orders that may be made by the Federal Court on the appeal include the following:

(a) an order affirming or setting aside a decision of the Tribunal;

(b) an order remitting the matter to be reviewed and decided again, either with or without the taking of further evidence, by the Tribunal in accordance with the directions of the Court.

Order remitting a matter to Tribunal

(4) If the Federal Court makes an order remitting a matter to be reviewed and decided again by the Tribunal, the Tribunal need not be constituted for the review by the person or persons who made the decision to which the appeal relates.

Note: If the matter involved a first-tier review, the review would likewise be a first-tier review. Similarly, if the matter involved a second-tier review, the review would be a second-tier review.

170 Transfer of appeals from Federal Court to Federal Magistrates Court Transfer of appeals

(1) If an appeal under section 167 is pending in the Federal Court, the Federal Court may, by order, transfer the appeal to the Federal Magistrates Court.

Exception

(2) However, the Federal Court must not transfer an appeal to the Federal Magistrates Court if the appeal is of a kind specified in the regulations.

Transfer of appeals on application or own initiative

(3) The Federal Court may transfer an appeal under subsection (1):

(a) on the application of a party to the appeal; or


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(b) on its own initiative.

Rules of Court may make provision in relation to transfers of appeals

(4) Rules of Court made under the Federal Court of Australia Act 1976 may make provision in relation to transfers of appeals to the Federal Magistrates Court under subsection (1).

(5) In particular, Rules of Court made under the Federal Court of Australia Act 1976 may set out factors that are to be taken into account by the Federal Court in deciding whether to transfer appeals to the Federal Magistrates Court under subsection (1).

(6) Before Rules of Court are made for the purposes of subsection (4) or (5), the Federal Court must consult the Federal Magistrates Court.

Relevant factors in deciding whether to transfer appeals

(7) In deciding whether to transfer an appeal to the Federal Magistrates Court under subsection (1), the Federal Court must have regard to:

(a) any Rules of Court made for the purposes of subsection (5); and

(b) whether a proceeding in respect of an associated matter is pending in the Federal Magistrates Court; and

(c) whether the resources of the Federal Magistrates Court are sufficient to hear and determine the appeal; and

(d) the interests of the administration of justice.

Jurisdiction

(8) The Federal Magistrates Court has jurisdiction to hear and determine appeals transferred to it under subsection (1).

Provisions of section 169 apply in corresponding way

(9) Subsections 169(3) and (4) apply in relation to the hearing and determination of an appeal transferred to the Federal Magistrates Court under subsection (1) of this section in a corresponding way to that in which they apply to the hearing and determination of an appeal by the Federal Court.

No appeal from decision to transfer appeal

(10) An appeal cannot be made from a decision of the Federal Court in relation to the transfer of an appeal under subsection (1).

171 Operation and implementation of a decision that is subject to appeal (1) Subject to this section, the making of an appeal to the Federal Court from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.

Federal Court or Federal Magistrates Court may make orders affecting the operation or implementation of decisions

(2) If:

(a) an appeal is made to the Federal Court from a first-tier decision or a second-tier decision of the Tribunal; or

(b) such an appeal is transferred from the Federal Court to the Federal Magistrates Court;

then, for the purpose of ensuring the effectiveness of the hearing and determination of the appeal, an order may be made under subsection (3) by:

(c) if paragraph (a) applies--the Federal Court or a Judge of that Court; or

(d) if paragraph (b) applies--the Federal Magistrates Court or a Federal Magistrate.

(3) For the purposes of subsection (2), the order that may be made is one that stays or otherwise affects the operation or implementation of:

(a) if the appeal mentioned in subsection (2) is from a first-tier decision--either or both of the following:

(i) that decision or a part of that decision;

(ii) the original decision whose review resulted in the first-tier decision, or a part of that original decision; or

(b) if the appeal mentioned in subsection (2) is from a second-tier decision--any one or more of the following:

(i) that decision or a part of that decision;

(ii) the first-tier decision whose review resulted in that decision, or a part of that first-tier decision;

(iii) the original decision whose review resulted in the first-tier decision, or a part of that original decision.

Variation or revocation of order

(4) If an order (the initial order) is in force under subsection (3) (including an order that has previously been varied on one or more occasions under this subsection):

(a) the Federal Court or a Judge of that Court; or

(b) the Federal Magistrates Court or a Federal Magistrate;

as the case requires, may make an order varying or revoking the initial order.

How long order has effect

(5) An order in force under subsection (3) (including an order that has previously been varied on one or more occasions under subsection (4)):

(a) is subject to such conditions as are specified in the order; and

(b) has effect until:

(i) if a period for the operation of the order is specified in the order--the

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end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

(ii) if no period is so specified--the giving of a decision on the appeal.

Division 3--Reference of questions of law 172 Reference of questions of law to Federal Court General referral provision

(1) The Tribunal may, of its own motion or at the request of a participant, refer to the Federal Court for decision a question of law arising in a review by the Tribunal.

Referral of question of law about public interest

(2) If:

(a) as mentioned in subparagraph 102(1)(b)(i), the Attorney-General of the Commonwealth informs the Tribunal that, in his or her opinion, answering a question would be contrary to the public interest, and a reason specified is that set out in paragraph 101(2)(a) or (b); or

(b) as mentioned in subparagraph 102(1)(b)(ii), the Attorney-General of a State, the Australian Capital Territory or the Northern Territory informs the Tribunal that, in his or her opinion, answering a question would be contrary to the public interest, and a reason specified is that set out in paragraph 101(3)(a);

the Tribunal may, of its own motion or at the request of a participant at the time, refer to the Federal Court for decision the question of law whether answering the question would be contrary to the public interest.

Agreement of President

(3) However, the President must agree to the referral.

Jurisdiction

(4) The Federal Court has jurisdiction to hear and determine a question of law referred to it under this section.

Tribunal to act accordingly

(5) If a question of law has been referred to the Federal Court under this section, the Tribunal must not, in that review:

(a) give a decision to which the question is relevant while the reference is pending; or

(b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court on the question.

Division 4--Provisions about documents etc. 173 Sending of documents etc. to, and disclosure of documents etc. by, the Federal Court and the Federal Magistrates Court (1) This section applies if:

(a) an appeal is made to the Federal Court in accordance with section 167; or

(b) a question of law is referred to that Court in accordance with section 172.

Tribunal must send documents etc. to Federal Court

(2) The Tribunal must, despite subsection 101(5), send to the Court:

(a) all documents and things that were before the Tribunal in connection with the review to which the appeal or reference relates; and

(b) any other documents and things in the Tribunal's possession that the Tribunal is required to send to the Court by Rules of Court made under the Federal Court of Australia Act 1976.

Return of documents etc. to Tribunal

(3) Except in the case of an appeal that is transferred to the Federal Magistrates Court, the Federal Court must return the documents and things to the Tribunal at the conclusion of the proceeding before the Federal Court in relation to the appeal or reference.

(4) In the case of an appeal that is transferred to the Federal Magistrates Court:

(a) the Federal Court must send the documents and things to the Federal Magistrates Court; and

(b) at the conclusion of the proceeding before the Federal Magistrates Court in relation to the appeal, the Federal Magistrates Court must return the documents and things to the Tribunal.

Restriction on disclosure of matters in document

(5) If, in respect of any of the documents, a certificate is in force under subsection 60(1) or 101(1) certifying that the disclosure of a matter contained in the document would be contrary to the public interest:

(a) the Federal Court; or

(b) the Federal Magistrates Court;

as the case requires, must do all things necessary to ensure that the matter is not disclosed to any person other than a member of the Court as constituted for the purposes of the proceeding.

Note: Subsection (7) allows inspection of the document in certain

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circumstances.

(6) However, subsection (5) does not prevent the Federal Court from sending the document to the Federal Magistrates Court as mentioned in paragraph (4)(a).

(7) If:

(a) a question for decision by the Federal Court or the Federal Magistrates Court, as the case requires, is whether a matter should be disclosed to some or all of the participants in the review by the Tribunal in respect of which the appeal was instituted or the reference was made; and

(b) the Court decides that the matter should be so disclosed;

the Court must permit the part of the document in which the matter is contained to be inspected accordingly.

Disclosure to officers of the Court

(8) Nothing in this section prevents the disclosure of information, or of matter contained in a document, to an officer of the Court in the course of the performance of his or her duties as an officer of the Court.

Part 11--Administrative Review Council Division 1--Establishment and composition of the Council 174 Establishment of the Council The Administrative Review Council is established.

175 Composition of the Council The Administrative Review Council consists of the following members:

(a) the President of the Tribunal;

(b) the Ombudsman;

(c) the President of the Australian Law Reform Commission established by the Australian Law Reform Commission Act 1996;

(d) not fewer than 3 other members or more than 10 other members or, if a higher number than 10 is prescribed by the regulations for the purposes of this paragraph, that higher number of members.

Division 2--Functions of the Council etc. 176 Functions of the Council (1) This section sets out the Council's functions.

Review and monitor developments in administrative law

(2) The Council is to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Attorney-General improvements that might be made to the system.

Inquire into adequacy of procedures used by persons to make administrative decisions etc.

(3) The Council is:

(a) to inquire into the adequacy of the procedures used by authorities of the Commonwealth and other persons who exercise administrative discretions or make administrative decisions; and

(b) to consult with and advise them about those procedures;

for the purpose of ensuring that the discretions are exercised, or the decisions are made, in a just and equitable manner. If the Council holds such an inquiry, or gives any such advice, the Council must give the Attorney-General a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.

Ascertain and keep under review decisions that a court etc. does not review

(4) The Council is to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body.

Recommend to Attorney-General whether any decisions should be subject to review by a court etc.

(5) The Council is to make recommendations to the Attorney-General as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review.

Inquire into adequacy of law and practice relating to review by courts of administrative decisions

(6) The Council is to inquire into the adequacy of the law and practice relating to the review by courts of administrative decisions and to make recommendations to the Attorney-General as to any improvements that might be made in that law or practice.

Inquire into qualifications etc. of persons engaged in review of administrative decisions

(7) The Council is to inquire into:


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(a) the qualifications required for membership of authorities of the Commonwealth, and the qualifications required by other persons, engaged in the review of administrative decisions; and

(b) the extent of the jurisdiction to review administrative decisions that is conferred on those authorities and other persons; and

(c) the adequacy of the procedures used by those authorities and other persons in the exercise of that jurisdiction;

and to consult with and advise those authorities and other persons about the procedures used by them as mentioned in paragraph (c) and recommend to the Attorney-General any improvements that might be made in respect of any of the matters referred to in paragraphs (a), (b) and (c).

Recommend to Attorney-General the constitution of Tribunals reviewing administrative decisions

(8) The Council is to make recommendations to the Attorney-General as to the manner in which tribunals engaged in the review of administrative decisions should be constituted.

Recommend to Attorney-General the desirability of decisions to be reviewed by the Administrative Review Tribunal

(9) The Council is to make recommendations to the Attorney-General as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Review Tribunal being made the subject of review by the Administrative Review Tribunal.

Facilitate training of persons making administrative decisions

(10) The Council is to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions.

Promote knowledge about Commonwealth administrative law system

(11) The Council is to promote knowledge about the Commonwealth administrative law system.

Consider matters referred by the Attorney-General

(12) The Council is to consider, and report to the Attorney-General on, matters referred to the Council by the Attorney-General.

Interpretation

(13) A reference in this Part to an administrative decision or an administrative discretion includes a reference to an administrative decision made, or an administrative discretion exercised, otherwise than under an enactment.

177 Performance of functions not limited by vacancies in office etc. The performance of the functions of the Council is not affected by reason only of:

(a) there being a vacancy in the office of an ex officio Council member; or

(b) the number of appointed Council members falling below 3 for not more than 3 months.

178 Meetings of the Council Holding of meetings

(1) The Council is to hold such meetings as are necessary for the performance of its functions.

President may convene meeting at any time

(2) The President of the Council may at any time convene a meeting of the Council.

Note: Section 183 provides for appointment of a President of the Council.

President must convene meeting upon request by 3 Council members

(3) The President of the Council must, on receipt of a request in writing signed by 3 Council members, convene a meeting of the Council.

Quorum

(4) At a meeting of the Council, 4 Council members constitute a quorum.

President to preside when present

(5) The President of the Council must preside at all meetings of the Council at which he or she is present.

Another Council member to preside if President not present

(6) If the President of the Council is not present at a meeting of the Council, the Council members present must elect one of their number to preside at that meeting and the person so elected must preside accordingly.

Voting

(7) Questions arising at a meeting of the Council are to be determined by a majority of the votes of the Council members present and voting.

Presiding Council member has casting vote

(8) The Council member presiding at a meeting of the Council has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

Conduct of proceedings etc.

(9) The Council may regulate the conduct of proceedings at its meetings as it thinks fit and must keep minutes of those proceedings.


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179 Attorney-General may give directions to the Council The Attorney-General may, by writing given to the President of the Council, give directions to the Council in respect of the performance of its functions, and the Council must comply with any such directions.

180 Attorney-General may refer matters to the Council The Attorney-General may, by writing given to the President of the Council, refer matters to the Council for inquiry and report.

181 Reports by the Council (1) When the Council concludes its consideration of:

(a) a matter relating to a project in respect of which the Council has determined that a report is to be prepared; or

(b) a matter referred by the Attorney-General to the Council for inquiry and report;

the Council is to prepare a report on the matter and give the report to the Attorney-General.

Tabling of report

(2) The Attorney-General must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.

Division 3--How certain Council members are appointed 182 Governor-General to appoint certain Council members The Council members mentioned in paragraph 175(d) are to be appointed by the Governor-General by written instrument.

183 Governor-General to appoint President of the Council One Council member is to be appointed by the Governor-General as President of the Council.

184 Qualification for appointment of certain members of the Council A person is not to be appointed as a Council member mentioned in paragraph 175(d) unless he or she:

(a) has had extensive experience at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of a government or of an authority of a government; or

(b) has an extensive knowledge of administrative law or public administration; or

(c) has had direct experience, and has direct knowledge, of the needs of people, or groups of people, significantly affected by government decisions.

Division 4--Appointed Council members' terms and conditions 185 Appointed Council members to be part-time Appointed Council members are to be appointed as part-time members.

186 Term of appointment Subject to this Division, an appointed Council member holds office for the period specified in his or her instrument of appointment. The period must not exceed 3 years.

187 Appointed Council member may be appointed to take part in a specified project (1) An instrument appointing a Council member mentioned in paragraph 175(d) may state that the member is appointed primarily for the purpose of taking part in a project specified in the instrument that is being, or is to be, undertaken by the Council.

Rights etc. of such a member

(2) If an instrument appointing a Council member mentioned in paragraph 175(d) contains such a statement:

(a) the person is to take part in the project but has all the rights of, and is to be treated for the purposes of this Act in all other respects as if he or she were, an appointed Council member who was not appointed primarily for the purpose of taking part in a specified project; and

(b) if the appointment has not ceased under section 186 and has not been terminated under subsection 190(1)--the appointment ceases when the President of the Council certifies in writing that the Council has finished the project.


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188 Remuneration and allowances
(1) An appointed Council member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Remuneration Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.

(2) An appointed Council member is to be paid the allowances that are prescribed by the regulations.

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

189 Leave of absence The Attorney-General may grant leave of absence to any appointed Council member on the terms and conditions that the Attorney-General determines.

190 Removal from office Removal of Council members appointed to take part in a specified project

(1) The Governor-General may at any time remove from office an appointed Council member whose instrument of appointment contained a statement of the kind mentioned in subsection 187(1) (about the member being appointed to take part in a specified project).

Removal of other Council members

(2) The Governor-General must remove from office any other appointed Council member if the member:

(a) misbehaves or becomes physically or mentally incapacitated; or

(b) is absent, except on leave of absence, from 3 consecutive meetings of the Council.

191 Resignation An appointed Council member may resign his or her appointment by giving the Governor-General a written resignation.

Division 5--Staff of the Council 192 Staff of the Council The staff of the Council are to be persons engaged under the Public Service Act 1999.

Division 6--Annual report 193 Annual report (1) After the end of each financial year, the President of the Council must give a report to the Attorney-General, for presentation to the Parliament, on the Council's activities during the year.

(2) The report must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.

Part 12--Regulations

194 Regulations (1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Prescribing fees

(2) Without limiting subsection (1), the regulations may make provision:

(a) prescribing fees to be paid in relation to applications under this Act; and

(b) for the waiver or refund, in whole or in part, of those fees; and

(c) prescribing fees to be paid in relation to the taxation of costs ordered by the Tribunal to be paid.