Federal Register of Legislation - Australian Government

Primary content

Administrative Appeals Tribunal Act 1975

  • - C2009C00470
  • In force - Superseded Version
  • View Series
Act No. 91 of 1975 as amended, taking into account amendments up to Act No. 99 of 2009
An Act to establish an Administrative Appeals Tribunal
Administered by: Attorney-General's
Registered 13 Oct 2009
Start Date 07 Oct 2009
End Date 06 Dec 2009

Administrative Appeals Tribunal Act 1975

Act No. 91 of 1975 as amended

This compilation was prepared on 12 October 2009
taking into account amendments up to Act No. 99 of 2009

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be affected by application provisions that are set out in the Notes section

Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra

  

  

  


Contents

Part I—Preliminary                                                                                                                1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

2A......... Tribunal’s objective............................................................................ 1

3............ Interpretation...................................................................................... 1

4............ Extension to external Territories......................................................... 4

Part II—Establishment of the Administrative Appeals Tribunal                 5

Division 1—Establishment of Tribunal                                                               5

5............ Establishment of Tribunal.................................................................. 5

Division 2—Members of Tribunal                                                                         6

6............ Appointment of members of Tribunal............................................... 6

7............ Qualifications for appointment.......................................................... 6

7A......... Appointment of a Judge as a presidential member not to affect tenure etc.            7

8............ Term of appointment......................................................................... 8

9............ Remuneration and allowances............................................................. 8

10.......... Acting appointments.......................................................................... 8

10A....... Delegation......................................................................................... 11

10B....... Oath or affirmation of office............................................................. 11

11.......... Outside employment........................................................................ 12

12.......... Leave of absence............................................................................... 12

13.......... Removal from office......................................................................... 12

14.......... Disclosure of interests by members................................................. 14

15.......... Resignation....................................................................................... 15

Part III—Organization of the Tribunal                                                                     16

Division 1—Divisions of the Tribunal                                                                16

19.......... Divisions of the Tribunal.................................................................. 16

Division 2—Arrangement of business of the Tribunal                             18

20.......... Arrangement of business.................................................................. 18

20A....... Places of sitting................................................................................. 18

Division 3—Constitution and reconstitution of the Tribunal                19

20B....... President may give directions as to constitution of Tribunal........... 19

21.......... Constitution of Tribunal for exercise of powers.............................. 19

21AA.... Constitution of Security Appeals Division—general....................... 20

21AB.... Constitution of Security Appeals Division—proceedings to review certain decisions under the Archives Act 1983.......................................................................................................... 21

21A....... Reconstitution of Tribunal at the request of a party........................ 24

22.......... Member Presiding............................................................................. 25

23.......... Reconstitution of Tribunal if member is unavailable........................ 26

23A....... Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding         28

23B....... Matters to which the President must have regard in constituting the Tribunal       29

23C....... Limitation on composition of reconstituted Tribunal...................... 30

23D....... Tribunal may have regard to record of previous proceeding............ 30

23E........ Constitution of Tribunal for review of amount taxed—general rule. 31

23F........ Constitution of Tribunal for review of amount taxed—member unavailable           32

Part IIIAA—Small Taxation Claims Tribunal                                                      34

24AA.... Definitions........................................................................................ 34

24AB.... Reviews of relevant taxation decisions to be heard before the Taxation Appeals Division    34

24AC.... Small Taxation Claims Tribunal to hear certain tax disputes............ 34

24AD.... What happens if the Small Taxation Claims Tribunal considers that the tax in dispute is not less than the determined amount.............................................................................................. 35

Part IIIA—Management of the Tribunal                                                                38

Division 1—Management responsibilities of President and Registrar  38

24A....... Management of administrative affairs of Tribunal........................... 38

24B....... Registrar of the Tribunal................................................................... 38

Division 2—Appointment, powers etc. of Registrar                                  39

24C....... Appointment of Registrar................................................................ 39

24D....... Powers of the Registrar.................................................................... 39

24E........ Remuneration of Registrar................................................................ 39

24F........ Terms and conditions of appointment of Registrar.......................... 39

24G....... Leave of absence............................................................................... 40

24H....... Resignation....................................................................................... 40

24J........ Outside employment of Registrar.................................................... 40

24K....... Termination of appointment............................................................ 40

24L........ Disclosure of interests by Registrar................................................. 42

24M...... Acting Registrar................................................................................ 42

Division 3—Other officers and staff of Tribunal                                           43

24N....... Officers and staff of the Tribunal..................................................... 43

24P........ Statutory Agency etc. for purposes of Public Service Act.............. 43

24Q....... Engagement of consultants etc.......................................................... 44

Division 4—Miscellaneous administrative matters                                   45

24R....... Annual report................................................................................... 45

24V....... Delegation of administrative powers of President............................ 45

24W...... Proceedings arising out of administration of Tribunal...................... 45

Part IV—Reviews by the Tribunal of decisions                                                   46

Division 1—Applications for review of decisions                                        46

25.......... Tribunal may review certain decisions............................................. 46

26.......... Restriction on powers of decision‑maker after application for review is made       48

27.......... Persons who may apply to Tribunal................................................ 48

27AA.... Applications to Tribunal under Australian Security Intelligence Organisation Act                49

27A....... Notice of decision and review rights to be given.............................. 49

27B....... Review—Code of Practice................................................................ 50

28.......... Person affected by decision may obtain reasons for decision.......... 51

29.......... Manner of applying for review........................................................ 54

29A....... Applications—payment of fees....................................................... 58

29B....... Notice of application........................................................................ 59

Division 2—Parties and procedure                                                                     60

30.......... Parties to proceeding before Tribunal............................................... 60

30A....... Intervention by Attorney‑General................................................... 61

31.......... Tribunal to determine persons whose interests are affected by decision                61

32.......... Representation before Tribunal........................................................ 61

33.......... Procedure of Tribunal....................................................................... 61

Division 3—Alternative dispute resolution processes                             64

34.......... Scope of Division............................................................................. 64

34A....... Referral of proceeding for alternative dispute resolution process.... 64

34B....... Alternative dispute resolution processes—proceeding before the Small Taxation Claims Tribunal       65

34C....... Directions by President.................................................................... 66

34D....... Agreement about the terms of a decision etc.................................... 66

34E........ Evidence not admissible.................................................................... 67

34F........ Eligibility of person conducting alternative dispute resolution process to sit as a member of the Tribunal           68

34G....... Participation by telephone etc.......................................................... 68

34H....... Engagement of persons to conduct alternative dispute resolution processes          69

Division 4—Hearings and evidence                                                                   70

34J........ Circumstances in which hearing may be dispensed with.................. 70

35.......... Hearings to be in public except in special circumstances................. 70

35AA.... Restriction on publication of evidence and findings in a proceeding before the Security Appeals Division           71

35A....... Participation by telephone etc.......................................................... 72

36.......... Disclosure not required: Attorney‑General’s public interest certificate  72

36A....... Answering questions where Attorney‑General intervenes on public interest grounds           74

36B....... Disclosure not required: State Attorney‑General’s public interest certificate         75

36C....... Answering questions where State Attorney‑General intervenes on public interest grounds  77

36D....... Public interest questions under sections 36, 36A and 36C.............. 78

37.......... Lodging of material documents with Tribunal.................................. 79

38.......... Power of Tribunal to obtain additional statements.......................... 83

38A....... Director‑General of Security to lodge certain material with Tribunal 83

39.......... Opportunity to make submissions concerning evidence.................. 84

39A....... Procedure at certain hearings in Security Appeals Division............. 84

39B....... Certain documents and information not to be disclosed in proceedings before Security Appeals Division           87

Division 5—Procedural powers of Tribunal                                                    91

40.......... Powers of Tribunal etc..................................................................... 91

41.......... Operation and implementation of a decision that is subject to review 93

42.......... Resolving disagreements................................................................... 95

42A....... Discontinuance, dismissal, reinstatement etc. of application........... 96

42B....... Power of Tribunal where a proceeding is frivolous or vexatious...... 98

42C....... Power of Tribunal if parties reach agreement................................... 98

42D....... Power to remit matters to decision‑maker for further consideration 99

Division 6—Tribunal’s decision on review                                                   101

43.......... Tribunal’s decision on review......................................................... 101

Division 7—Miscellaneous                                                                                    104

43AAA. Findings of Tribunal in certain proceedings before Security Appeals Division      104

43AA.... Correction of errors in decisions or statement of reasons.............. 105

43A....... Return of documents etc. at completion of proceeding.................. 106

Part IVA—Appeals and references of questions of law to the Federal Court of Australia              107

43B....... Part applies whether Tribunal’s power conferred by an enactment or by a law of a State     107

44.......... Appeals to Federal Court of Australia from decisions of the Tribunal 107

44AA.... Transfer of appeals from Federal Court to Federal Magistrates Court 110

44A....... Operation and implementation of a decision that is subject to appeal 112

45.......... Reference of questions of law to Federal Court of Australia......... 114

46.......... Sending of documents to, and disclosure of documents by, the Federal Court of Australia and the Federal Magistrates Court............................................................................................... 114

Part V—Administrative Review Council                                                               117

47.......... Interpretation.................................................................................. 117

48.......... Establishment of Council................................................................ 117

49.......... Composition of Council................................................................. 117

50.......... Qualifications for appointment...................................................... 118

51.......... Functions and powers of Council................................................... 118

51A....... Minister may give directions to the Council.................................. 120

51B....... Minister may refer matters to the Council..................................... 120

51C....... Reports by the Council.................................................................. 120

52.......... Period of appointment.................................................................... 121

53.......... Remuneration and allowances......................................................... 121

54.......... Resignation..................................................................................... 122

55.......... Removal from office....................................................................... 122

56.......... Meetings......................................................................................... 122

57.......... Staff of Council............................................................................... 123

58.......... Annual Report................................................................................ 124

Part VI—Miscellaneous                                                                                                  125

59.......... Advisory opinions.......................................................................... 125

59A....... Authorised members....................................................................... 125

60.......... Protection of members, alternative dispute resolution practitioners, Registrars, District Registrars, Deputy Registrars, Conference Registrars, barristers and witnesses............................. 126

61.......... Failure to comply with summons................................................... 127

62.......... Refusal to be sworn or to answer questions................................... 128

62A....... False or misleading evidence........................................................... 129

62B....... Extended operation of certain provisions....................................... 129

63.......... Contempt of Tribunal..................................................................... 129

64.......... Registries........................................................................................ 130

65.......... Officers of Tribunal........................................................................ 130

66.......... Confidential information not to be disclosed.................................. 131

66A....... Application of confidentiality provisions in other Acts................ 132

67.......... Fees for compliance with summons............................................... 133

67A....... Giving of notices............................................................................. 133

68.......... Lodging of documents..................................................................... 133

68AA.... How documents may be given to a person..................................... 134

68A....... Calculation of short periods of time............................................... 135

69.......... Legal assistance............................................................................... 135

69A....... Procedure for taxing costs............................................................... 136

69B....... Costs in certain proceedings in Security Appeals Division........... 136

70.......... Regulations..................................................................................... 137

Schedule 2                                                                                                                                138

Notes                                                                                                                                          139


An Act to establish an Administrative Appeals Tribunal

Part IPreliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Administrative Appeals Tribunal Act 1975.

2  Commencement [see Note 1]

                   This Act shall come into operation on a day to be fixed by Proclamation.

2A  Tribunal’s objective

                   In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

3  Interpretation

             (1)  In this Act, unless the contrary intention appears:

adduce includes give.

alternative dispute resolution processes means procedures and services for the resolution of disputes, and includes:

                     (a)  conferencing; and

                     (b)  mediation; and

                     (c)  neutral evaluation; and

                     (d)  case appraisal; and

                     (e)  conciliation; and

                      (f)  procedures or services specified in the regulations;

but does not include:

                     (g)  arbitration; or

                     (h)  court procedures or services.

Paragraphs (b) to (f) of this definition do not limit paragraph (a) of this definition.

authorised member means a member who has been authorised by the President under section 59A for the purposes of the provision in which the expression occurs.

authority of the Commonwealth means an authority, tribunal or other body, whether incorporated or not, that is established by an enactment.

Commonwealth agency means a Minister or an authority of the Commonwealth.

Conference Registrar means a Conference Registrar of the Tribunal.

Deputy President means a member appointed as a Deputy President of the Tribunal after the commencement of Part III of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982.

Deputy Registrar means a Deputy Registrar of the Tribunal.

District Registrar means a District Registrar of the Tribunal.

enactment means:

                     (a)  an Act;

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

                     (c)  an instrument (including rules, regulations or by‑laws) made under an Act or under such an Ordinance;

and includes an enactment as amended by another enactment.

full‑time member means a member who is appointed as a full‑time member.

Judge means:

                     (a)  a Judge of a court created by the Parliament; or

                     (b)  a person who has the same designation and status as a Judge of a court created by the Parliament.

member means a presidential member, a senior member, or any other member of the Tribunal.

non‑presidential member means a member other than a presidential member.

officer of the Tribunal means the Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar.

part‑time member means a member who is appointed as a part‑time member.

President means the President of the Tribunal.

presidential member means the President, a member who is a Judge or a Deputy President.

proceeding, in relation to the Tribunal, includes:

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

                     (b)  an application to the Tribunal under subsection 28(1AC); and

                     (c)  an application to the Tribunal for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid; and

                     (d)  an application to the Tribunal for a costs certificate under section 10A of the Federal Proceedings (Costs) Act 1981; and

                     (e)  an application to the Tribunal under subsection 62(2) of the Freedom of Information Act 1982; and

                      (f)  any other application to the Tribunal under this Act or any other Act; and

                     (g)  any matter referred to the Tribunal for inquiry and/or review under this Act or any other Act; and

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

Registrar means the Registrar of the Tribunal.

security assessment or assessment has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

senior member means a senior member of the Tribunal.

Small Taxation Claims Tribunal means the Taxation Appeals Division of the Tribunal when that Division is required under Part IIIAA to be known as the Small Taxation Claims Tribunal.

State includes the Northern Territory and the Australian Capital Territory.

Tribunal:

                     (a)  means the Administrative Appeals Tribunal established by this Act; and

                     (b)  in relation to a proceeding, means the Administrative Appeals Tribunal so established as constituted for the purposes of the proceeding; and

                     (c)  includes a member, or an officer of the Tribunal, exercising powers of the Tribunal.

             (2)  Where 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.

             (3)  Unless the contrary intention appears, a reference in this Act to a decision includes a reference to:

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

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

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

                     (d)  imposing a condition or restriction;

                     (e)  making a declaration, demand or requirement;

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

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

4  Extension to external Territories

                   This Act extends to every external Territory.


 

Part IIEstablishment of the Administrative Appeals Tribunal

Division 1Establishment of Tribunal

5  Establishment of Tribunal

                   There is hereby established an Administrative Appeals Tribunal, which shall consist of a President, the other presidential members, the senior members, and the other members, appointed in accordance with this Act.


 

Division 2Members of Tribunal

6  Appointment of members of Tribunal

             (1)  The members shall be appointed by the Governor‑General.

             (2)  A Judge who is to be appointed as a member (other than the President) of the Tribunal shall be appointed as a presidential member.

             (3)  A person (other than a Judge) who is to be appointed as a member of the Tribunal shall be appointed as a Deputy President of the Tribunal, as a senior member of the Tribunal, or as a member of the Tribunal.

             (4)  A member (other than a Judge) shall be appointed either as a full‑time member or as a part‑time member.

7  Qualifications for appointment

President

             (1)  A person must not be appointed as the President unless he or she is a Judge of the Federal Court of Australia.

Deputy President

       (1AA)  A person must not be appointed as a Deputy President unless he or she is enrolled as a legal practitioner (however described) of:

                     (a)  the High Court; or

                     (b)  the Supreme Court of a State or Territory;

and has been so enrolled for at least 5 years.

Senior member

          (1B)  A person must not be appointed as a senior member unless he or she:

                     (a)  is enrolled as a legal practitioner (however described) of:

                              (i)  the High Court; or

                             (ii)  the Supreme Court of a State or Territory;

                            and has been so enrolled for at least 5 years; or

                     (b)  has, in the opinion of the Governor‑General, special knowledge or skill relevant to the duties of a senior member.

Non‑presidential member

             (2)  A person must not be appointed as a non‑presidential member (other than a senior member) unless he or she:

                     (a)  is enrolled as a legal practitioner (however described) of:

                              (i)  the High Court; or

                             (ii)  the Supreme Court of a State or Territory; or

                     (b)  has had experience, for not less than 5 years, 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

                     (c)  has obtained a degree of a university, or an educational qualification of a similar standing, after studies in the field of law, economics or public administration or some other field considered by the Governor‑General to have substantial relevance to the duties of such a member; or

                     (d)  has, in the opinion of the Governor‑General, special knowledge or skill in relation to any class of matters in respect of which decisions may be made in the exercise of powers conferred by an enactment, being decisions in respect of which applications may be made to the Tribunal for review.

7A  Appointment of a Judge as a presidential member not to affect tenure etc.

                   The appointment of a Judge as a presidential member, or service by a Judge as a presidential member, whether the appointment was or is made or the service occurred or occurs before or after the commencement of this section, does not affect, and shall be deemed never to have affected, his or her tenure of office as a Judge or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of his or her office as a Judge and, for all purposes, his or her service, whether before or after the commencement of this section, as a presidential member shall be taken to have been, or to be, service as the holder of his or her office as a Judge.

8  Term of appointment

             (3)  Subject to this Part, a member holds office for such period of at most 7 years as is specified in the instrument of appointment, but is eligible for re‑appointment.

             (4)  A presidential member who is a Judge ceases to hold office as a member if he or she ceases to be a Judge.

             (7)  Subject to this Part, a member holds office on such terms and conditions as are prescribed.

9  Remuneration and allowances

             (1)  A member, other than a member who is a Judge, shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no determination of that remuneration by the Remuneration Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.

             (2)  A member to whom subsection (1) applies shall be paid such allowances as are prescribed.

             (3)  Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.

10  Acting appointments

Acting President

             (1)  The Governor‑General may appoint a Judge of the Federal Court of Australia to act as President during any period, or during all periods, when the President is absent from duty or from Australia or during a vacancy in the office of President.

Acting Deputy President

             (2)  If a Deputy President is, or is expected to be:

                     (a)  in the case of a full‑time Deputy President—absent from duty or from Australia; or

                     (b)  in the case of a part‑time Deputy President—unavailable to perform the duties of his or her office;

the Governor‑General may appoint a person qualified to be appointed as a Deputy President:

                     (c)  in a case to which paragraph (a) applies—to act as a full‑time Deputy President during the absence; or

                     (d)  in a case to which paragraph (b) applies—to act as a part‑time Deputy President during the period of unavailability.

Acting non‑presidential member

             (3)  Where a non‑presidential member is, or is expected to be:

                     (a)  in the case of a full‑time member—absent from duty or from Australia; or

                     (b)  in the case of a part‑time member—unavailable to perform the duties of his or her office;

the Governor‑General may appoint a person:

                     (c)  in a case to which paragraph (a) applies—to act as a full‑time non‑presidential member during the absence; or

                     (d)  in a case to which paragraph (b) applies—to act as a part‑time non‑presidential member during the period of unavailability.

             (4)  A person shall not be appointed under subsection (3) to act as a senior member, or as a non‑presidential member other than a senior member, unless the person is qualified to be appointed as a senior member or as such a non‑presidential member, as the case requires.

Extension of acting appointment

             (5)  Where a person has been appointed under subsection (2) or (3), the Minister may, by reason of a pending proceeding or other special circumstances, direct, before the absent or unavailable member ceases to be absent or unavailable, that the person so appointed shall continue to act under the appointment after the member ceases to be absent or unavailable until he or she resigns the appointment or the Governor‑General terminates the appointment, but a person shall not continue to act by virtue of this subsection for more than 12 months after the member ceases to be absent or unavailable.

             (6)  Where a person has been appointed under this section to act as a member during the absence or unavailability of a member and the member ceases to hold office without having resumed duty or become available to perform the duties of his or her office, the period of appointment of the person so appointed shall, subject to this Act, be deemed to continue until he or she resigns the appointment, the appointment is terminated by the Governor‑General or a period of 12 months elapses from the day on which the absent or unavailable member ceases to hold office, whichever first happens.

Terms and conditions

             (7)  A person acting as a Deputy President or as a non‑presidential member shall act in that capacity on such terms and conditions as the Minister determines.

Resignation

             (9)  A person who is acting as:

                     (a)  President; or

                     (b)  a Deputy President; or

                     (c)  a non‑presidential member;

may resign his or her acting appointment by giving the Governor‑General a written resignation. The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

Exercise of powers

           (10)  A person acting as the President, as a Deputy President, as a senior member or as a non‑presidential member other than a senior member in accordance with this section has and may exercise all the powers, and shall perform all the functions and duties, conferred or imposed by this Act on the President, on a Deputy President, on a senior member or on a non‑presidential member other than a senior member, as the case may be, and, for the purposes of the exercise of those powers, or the performance of those functions and duties, this Act has effect as if a reference to the President, to a Deputy President, to a senior member or to a non‑presidential member other than a senior member included a reference to a person acting as the President, as a Deputy President, as a senior member, or as a non‑presidential member other than a senior member, as the case may be.

Validity of decisions etc.

           (11)  Where the Tribunal is constituted for the purposes of a proceeding by, or the Tribunal as constituted for the purposes of a proceeding includes, a person acting or purporting to be appointed under this section, or a person so acting or purporting to be appointed has done any act, the validity of any decision of, or of any direction given or other act done by, the Tribunal as so constituted or of the act done by the person so acting or purporting to be appointed shall not be called in question in any proceeding on the ground that the occasion for the person to act or for the appointment of the person had not arisen or that the occasion for his or her appointment had passed or his or her appointment had ceased to have effect.

10A  Delegation

             (1)  The President may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to a member all or any of his or her powers under this Act, other than this power of delegation.

             (2)  A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the President.

             (3)  A delegation may be made to a member under this section notwithstanding that a delegation to another member is, or delegations to other members are, in force under this section.

             (4)  A delegation under this section does not prevent the exercise of a power by the President.

10B  Oath or affirmation of office

                   A person who is appointed or re‑appointed after the commencement of this section as a member shall, before proceeding to discharge the duties of his or her office, take before the Governor‑General, a Justice of the High Court or a Judge of another federal court or of the Supreme Court of a State or Territory an oath or affirmation in accordance with the form in Schedule 2.

11  Outside employment

             (1)  Subject to subsection (2), a full‑time member shall not, except with the consent of the Minister, engage in paid employment outside the duties of his or her office.

             (2)  Subsection (1) does not apply in relation to the holding by a full‑time member of an office or appointment in the Defence Force.

12  Leave of absence

             (1)  A full‑time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The Minister may grant a full‑time member leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the Minister determines.

13  Removal from office

Removal on grounds of proved misbehaviour or incapacity

             (1)  The Governor‑General may remove a member from office on an address praying for his or her removal on the ground of proved misbehaviour or incapacity being presented to the Governor‑General by each House of the Parliament in the same session of the Parliament.

Suspension on grounds of misbehaviour or incapacity

             (2)  The Governor‑General may suspend a non‑presidential member from office on the ground of misbehaviour or incapacity.

             (3)  Where the Governor‑General suspends a non‑presidential member from office, the Minister shall cause a statement of the ground of the suspension to be laid before each House of the Parliament within 7 sitting days of that House after the suspension.

             (4)  Where such a statement has been laid before a House of the Parliament, that House may, within 15 sitting days of that House after the day on which the statement has been laid before it, by resolution, declare that the member should be removed from office and, if each House so passes such a resolution, the Governor‑General shall remove the member from office.

             (5)  If, at the expiration of 15 sitting days of a House of the Parliament after the day on which the statement has been laid before that House, that House has not passed such a resolution, the suspension terminates.

             (6)  The suspension of a member from office under this section does not affect any entitlement of the member to be paid remuneration and allowances.

Removal on ground of bankruptcy

             (7)  If a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Governor‑General shall remove him or her from office.

Retirement on ground of incapacity

             (9)  The Governor‑General may, with the consent of a member who is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

                     (c)  an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;

retire the member from office on the ground of incapacity.

No removal or suspension except under this section

           (10)  A member shall not be removed or suspended from office except as provided by this section.

Judge

           (11)  A reference in subsections (1), (7) and (10) to a member does not include a reference to a member who is a Judge.

CSS

           (12)  In spite of anything contained in this section, a member who:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her maximum retiring age (within the meaning of that Act);

is not capable of being retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 54C of that Act.

PSS

           (13)  In spite of anything contained in this section, a member who:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 13 of that Act.

PSSAP

           (14)  In spite of anything contained in this section, a member who:

                     (a)  is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and

                     (b)  is under 60 years of age;

is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.

14  Disclosure of interests by members

             (1)  Where a member is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding and he or she has or acquires any interest, pecuniary or otherwise, that could conflict with the proper performance of his or her functions in relation to that proceeding:

                     (a)  he or she shall disclose the interest to the parties to the proceeding; and

                     (b)  except with the consent of all the parties to the proceeding, he or she shall not take part in the proceeding or exercise any powers in relation to the review by the Tribunal of the decision to which the proceeding relates.

             (2)  Where the President becomes aware that a member is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding and that the member has in relation to that proceeding such an interest as is mentioned in subsection (1):

                     (a)  if the President considers that the member should not take part, or should not continue to take part, in the proceeding—he or she shall give a direction to the member accordingly; or

                     (b)  in any other case—he or she shall cause the interest of the member to be disclosed to the parties to the proceeding.

15  Resignation

             (1)  A member may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.


 

Part IIIOrganization of the Tribunal

Division 1Divisions of the Tribunal

19  Divisions of the Tribunal

             (1)  The Tribunal shall exercise powers conferred on it in Divisions of the Tribunal in accordance with this section.

Divisions of the Tribunal

             (2)  The Divisions of the Tribunal are as follows:

                     (a)  General Administrative Division;

                     (b)  Medical Appeals Division;

                  (baa)  Security Appeals Division;

                    (ba)  Taxation Appeals Division;

                     (c)  Valuation and Compensation Division; and

                     (d)  such other Divisions as are prescribed.

Assignment of non‑presidential member to Division or Divisions

             (3)  The Minister must assign a non‑presidential member to a particular Division or Divisions of the Tribunal and may, with the consent of the member but not otherwise, vary the assignment.

       (3AA)  Before the Minister exercises a power conferred by subsection (3), the Minister must consult the President.

Taxation Appeals Division

          (3A)  A member shall not be assigned to the Taxation Appeals Division unless the Minister has consulted with the Treasurer in relation to the assignment of the member.

Security Appeals Division

          (3B)  A non‑presidential member must not be assigned to the Security Appeals Division if he or she is, or has been, the Director‑General of Security or an officer, employee or agent of the Australian Security Intelligence Organisation.

Exercise of powers

             (4)  A non‑presidential member shall exercise, or participate in the exercise of, the powers of the Tribunal only in the Division or Divisions of the Tribunal to which he or she is assigned.

Validity

             (5)  The foregoing provisions of this section do not affect the validity of any exercise of powers by the Tribunal otherwise than in accordance with those provisions.

Certain powers to be exercised in Security Appeals Division

             (6)  The following powers conferred on the Tribunal:

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

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

may be exercised by the Tribunal only in the Security Appeals Division.

Division 2Arrangement of business of the Tribunal

20  Arrangement of business

             (1)  Subject to this Act and to the regulations, the President is responsible for ensuring the expeditious and efficient discharge of the business of the Tribunal.

President may give directions

             (2)  The President may give directions as to:

                     (a)  the operations of the Tribunal generally; and

                     (b)  the operations of the Tribunal at a particular place; and

                     (c)  the procedure of the Tribunal generally; and

                     (d)  the procedure of the Tribunal at a particular place; and

                     (e)  the conduct of reviews by the Tribunal.

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

             (4)  The President may give directions as to:

                     (a)  the arrangement of the business of the Tribunal; and

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

             (5)  Subsection (4) does not limit subsection (1).

             (6)  The President may at any time vary or revoke a direction under this section.

20A  Places of sitting

                   Sittings of the Tribunal are to be held from time to time as required at the places at which the Registries of the Tribunal are established, but the Tribunal may sit at any place in Australia or in an external Territory.

Division 3Constitution and reconstitution of the Tribunal

20B  President may give directions as to constitution of Tribunal

             (1)  The President may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding.

Note:          See also section 23B.

             (2)  If the President gives a direction as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding, he or she may at any time after the giving of the direction and before the commencement of the hearing of the proceeding:

                     (a)  revoke the direction; and

                     (b)  give a further direction under subsection (1) as to the persons who are to constitute the Tribunal for the purposes of the proceeding.

21  Constitution of Tribunal for exercise of powers

Scope

     (1AAA)  This section does not apply in relation to proceedings in the Security Appeals Division.

Constitution of Tribunal

             (1)  Subject to subsections (1AA) and (1A) and to any other provision made in this Act or in any other enactment with respect to the constitution of the Tribunal in relation to a particular proceeding, the Tribunal is, for the purposes of a proceeding, to be constituted by not more than 3 members.

       (1AA)  The Tribunal as constituted for the purposes of a proceeding must not include more than one presidential member who is a judge.

          (1A)  For the purpose of the exercise of the powers of the Tribunal under subsection 29(4), (7) or (9) or 30(1A), section 31, subsection 34D(1), 35(2) or 37(1A), (1C) or (2), section 38, subsection 41(2) or (3), section 42A or 42B, subsection 42C(1) or section 69A or 69B, the Tribunal shall be constituted:

                     (a)  where the hearing of the relevant proceeding has not commenced—by a presidential member or an authorised member; or

                     (b)  where the hearing of the relevant proceeding has commenced—by the members by whom the Tribunal is constituted for the purposes of that proceeding.

             (2)  Where, before the commencement of the hearing of a proceeding before the Tribunal, there is lodged with the Tribunal, as prescribed, a notice, signed by or on behalf of all the parties, stating that they have agreed that the proceeding should be dealt with by the Tribunal constituted by a presidential member alone, the Tribunal may, if the President directs under section 20B, be constituted for the purposes of that proceeding by a presidential member alone.

21AA  Constitution of Security Appeals Division—general

Scope

             (1)  This section applies to a proceeding in the Security Appeals Division (other than a proceeding to which section 21AB applies) but has effect subject to subsection 65(2) of the Australian Security Intelligence Organisation Act 1979.

Constitution of Security Appeals Division

             (2)  Subject to this section, the Security Appeals Division is to be constituted by a presidential member and 2 other members.

When presidential member must not participate

             (3)  A presidential member must not participate in the proceeding if he or she is, or has been, the Director‑General of Security or an officer, employee or agent of the Australian Security Intelligence Organisation.

Presidential member to preside

             (4)  The presidential member referred to in subsection (2) is to preside at a hearing of the proceeding.

Qualifications

             (5)  If the proceeding is a review of a security assessment, at least one of the 2 other members referred to in subsection (2) must:

                     (a)  if the matter to which the assessment related concerns employment or proposed employment in the Australian Public Service—be a former member of that Service; or

                     (b)  if the matter to which the assessment related concerns service or proposed service in the Defence Force—be a former member of that Force; or

                     (c)  if the matter to which the assessment related concerns the Australian Citizenship Act 2007, the Migration Act 1958 or the Australian Passports Act 2005—be a person with knowledge of, or experience in relation to, the needs and concerns of people who are or have been immigrants; or

                     (d)  if the matter to which the assessment related concerns employment under Commonwealth contractors—be a person with experience in relation to such employment; or

                     (e)  in any other case—be a person with knowledge of, or experience in relation to, matters of the kind to which the assessment related.

What happens if member ceases to be available

             (6)  If, before the proceeding has been completed, one of the members constituting the Division for the purposes of the proceeding has ceased to be available for the purposes of the proceeding:

                     (a)  the proceeding is to be reheard by the Division as reconstituted in accordance with this section; and

                     (b)  on the rehearing, the members of the Division may have regard to any record of the proceeding in the Division as previously constituted, including a record of any evidence taken in the proceeding.

21AB  Constitution of Security Appeals Division—proceedings to review certain decisions under the Archives Act 1983

Scope

             (1)  This section applies to a proceeding in the Security Appeals Division in relation to a review of a decision of the Australian Archives under the Archives Act 1983 refusing to grant access to a record in accordance with an application under section 40 of that Act, being a record that is:

                     (a)  a record of the Australian Security Intelligence Organisation; and

                     (b)  claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) of that Act.

Constitution of Security Appeals Division

             (2)  Subject to this section, the Security Appeals Division is to be constituted by:

                     (a)  3 presidential members; or

                     (b)  a presidential member alone.

When presidential member must not participate

             (3)  A presidential member must not participate in the proceeding if he or she is, or has been, the Director‑General of Security or an officer, employee or agent of the Australian Security Intelligence Organisation.

Reconstitution of Division at the request of a party

             (4)  At any time during the hearing of a proceeding before the Division, constituted by a presidential member alone, a party to the proceeding may apply to the Division as constituted for the purposes of the proceeding requesting that the Division be reconstituted for the purposes of the proceeding.

             (5)  If an application is made under subsection (4), the Division as constituted for the purposes of the proceeding must, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.

             (6)  The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Division as constituted for the purposes of the proceeding be reconstituted by 3 presidential members.

             (7)  If a direction is given under subsection (6), the Division as reconstituted in accordance with the direction must continue the proceeding and may either:

                     (a)  complete the proceeding; or

                     (b)  at any time remit the proceeding to the Division as previously constituted for completion by the Division as previously constituted.

             (8)  If the Division as reconstituted remits a proceeding to the Division as previously constituted, the Division as reconstituted may give directions in relation to the proceeding to the Division as previously constituted and the Division as previously constituted must, in making a decision on the review, comply with those directions.

Member presiding

             (9)  At the hearing of a proceeding before the Division at which the Division is constituted for the purposes of the proceeding by presidential members:

                     (a)  if the President is a member of the Division as so constituted—he or she is to preside; or

                     (b)  if the President is not a member of the Division as so constituted, but only one presidential member who is a Judge is a member of the Division as so constituted—that presidential member is to preside; or

                     (c)  if the President is not a member of the Division as so constituted, but 2 or more presidential members who are Judges are members of the Division as so constituted—the senior Judge is to preside; or

                     (d)  if neither the President, nor a Judge is a member of the Division as so constituted—a Deputy President of the Division as so constituted who is directed by the President to do so is to preside.

What happens if member ceases to be available

           (10)  If, before the proceeding has been completed, one of the members constituting the Division for the purposes of the proceeding has ceased to be available for the purposes of the proceeding the proceeding is to be reheard by the Division as reconstituted in accordance with this section.

Regard may be had to record of previous proceeding

           (11)  If the Division:

                     (a)  is reconstituted in accordance with a direction under subsection (6); or

                     (b)  is reconstituted because proceedings are remitted under paragraph (7)(b) to the Division as previously constituted; or

                     (c)  is reconstituted under subsection (10) because a member ceases to be available;

the members of the Division may have regard to any record of the proceeding in the Division as previously constituted, including a record of any evidence taken in the proceeding.

21A  Reconstitution of Tribunal at the request of a party

Scope

       (1AA)  This section does not apply in relation to proceedings in the Security Appeals Division.

Party may request reconstitution of Tribunal

             (1)  At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.

             (2)  Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.

             (3)  The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:

                     (a)  adding one or more members; or

                     (b)  removing one or more members; or

                     (c)  substituting one or more other members;

(or any combination of these).

             (4)  Where a direction is so given, the Tribunal as reconstituted in accordance with the direction shall continue the proceeding and may either:

                     (a)  complete the proceeding; or

                     (b)  at any time remit the proceeding to the Tribunal as previously constituted for completion by the Tribunal as previously constituted.

Note:          Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.

             (5)  Where the Tribunal as reconstituted so remits a proceeding to the Tribunal as previously constituted, the Tribunal as reconstituted may give directions in relation to the proceeding to the Tribunal as previously constituted and the Tribunal as previously constituted shall, in making a decision on the review, comply with those directions.

             (7)  Where, by virtue of subsection (4), a proceeding is remitted by the Tribunal as reconstituted to the Tribunal as previously constituted, the Tribunal as previously constituted may, for the purposes of that proceeding, have regard to any record of the proceeding before the Tribunal as reconstituted including a record of any evidence taken under the proceeding.

22  Member Presiding

Scope

       (1AA)  This section does not apply in relation to proceedings in the Security Appeals Division.

Multiple member Tribunal—who is to preside

             (1)  At the hearing of a proceeding before the Tribunal at which the Tribunal is constituted for the purposes of the proceeding by more than one member:

                     (a)  if the President is a member of the Tribunal as so constituted—he or she shall preside;

                    (aa)  if the President is not a member of the Tribunal as so constituted, but a presidential member who is a Judge is a member of the Tribunal as so constituted—that presidential member shall preside;

                    (ab)  if a presidential member who is a Judge is not a member of the Tribunal as so constituted but 2 or more Deputy Presidents are members of the Tribunal as so constituted—one of those Deputy Presidents who is directed by the President to do so is to preside;

                     (b)  if a presidential member who is a Judge is not a member of the Tribunal as so constituted, but a Deputy President is a member of the Tribunal as so constituted—that Deputy President shall preside; or

                     (c)  if the Tribunal is constituted only by non‑presidential members:

                              (i)  where one only of those non‑presidential members is a senior member—he or she shall preside;

                             (ii)  where 2 or more of those non‑presidential members are senior members—one of those senior members who is directed by the President to do so shall preside; or

                            (iii)  where none of those non‑presidential members is a senior member—one of those non‑presidential members who is directed by the President to do so shall preside.

Reconstituted Tribunal—who is to preside

             (2)  In a case where a direction is given under subsection 20B(2), section 21A, subsection 23(3) or (4) or section 23A reconstituting the Tribunal for the purposes of a proceeding, any necessary direction may be given under this section as to the member who is to preside at the hearing of the proceeding by the Tribunal as reconstituted.

23  Reconstitution of Tribunal if member is unavailable

Scope

             (1)  This section does not apply in relation to a proceeding in the Security Appeals Division.

             (2)  This section applies if:

                     (a)  the hearing of a proceeding has commenced or is completed; and

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

                              (i)  stops being a member; or

                             (ii)  for any reason, is not available for the purposes of the proceeding; or

                            (iii)  is directed by the President not to continue to take part in the proceeding.

Single member Tribunal

             (3)  If the unavailable member constitutes the Tribunal, the President must direct another member or members to constitute the Tribunal for the purposes of completing the proceeding.

Multiple member Tribunal

             (4)  If the unavailable member is one of the members who constitute the Tribunal, the President must:

                     (a)  direct the remaining member or members to constitute the Tribunal for the purposes of completing the proceeding; or

                     (b)  direct a member or members to constitute the Tribunal for the purposes of completing the proceeding.

Note:          See also section 23B.

             (5)  A member who is the subject of a direction under paragraph (4)(b) may be the remaining member or one of the remaining members.

Member who stops being a member and becomes a member again

             (6)  For the purposes of this section, a member who:

                     (a)  stops being a member; and

                     (b)  at a later time becomes a member again;

is taken, from that later time, to be another member.

Reconstituted Tribunal must continue proceeding

             (7)  The Tribunal as reconstituted in accordance with a direction under subsection (3) or (4) must continue the proceeding.

Note:          Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.

Limitations on President’s powers to give directions

             (8)  The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1).

             (9)  The President must not give a direction under subparagraph (2)(b)(iii) unless:

                     (a)  the President is satisfied that the direction is in the interests of justice; and

                     (b)  the President has consulted the member concerned.

           (10)  The President must not give a direction under subsection (3) or (4) unless the President has consulted the parties to the proceeding.

           (11)  The President must not give a direction under paragraph (4)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of completing the proceeding unless:

                     (a)  the President is satisfied that the direction is in the interests of justice; and

                     (b)  the President has consulted the remaining member concerned.

           (12)  In determining whether a direction covered by subsection (9) or (11) is in the interests of justice, the President must have regard to the objective of proceedings that are conducted in a manner that is fair, just, economical, informal and quick.

23A  Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding

Scope

             (1)  This section does not apply in relation to a proceeding in the Security Appeals Division.

Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding

             (2)  If the hearing of a proceeding has commenced or is completed, the President may direct that the Tribunal as constituted for the purposes of a particular proceeding be reconstituted by:

                     (a)  adding one or more members; or

                     (b)  removing one or more members; or

                     (c)  substituting one or more other members;

(or any combination of these) if the President thinks that the reconstitution is in the interests of achieving the expeditious and efficient conduct of the proceeding.

Note:          See also section 23B.

Reconstituted Tribunal must continue proceeding

             (3)  The Tribunal as constituted in accordance with a direction under subsection (2) must continue the proceeding.

Note:          Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.

Limitations on President’s power to give direction

             (4)  The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1).

             (5)  The President must not give a direction under this section unless the President has consulted the parties to the proceeding.

23B  Matters to which the President must have regard in constituting the Tribunal

                   In giving a direction under section 20B, 23 or 23A as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding, the President must have regard to:

                     (a)  the degree of public importance or complexity of the matters to which that proceeding relates; and

                     (b)  the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and

                     (c)  the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and

                     (d)  the degree of financial importance of the matters to which that proceeding relates; and

                     (e)  if that proceeding relates to the review of a decision made in the exercise of powers conferred by a particular enactment—the purpose or object underlying the enactment (whether or not that purpose or object is expressly stated); and

                      (f)  the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have knowledge, expertise or experience in relation to the matters to which that proceeding relates; and

                     (g)  any notice given under subsection 21(2) by the parties to that proceeding; and

                     (h)  such other matters (if any) as the President considers relevant.

23C  Limitation on composition of reconstituted Tribunal

Scope

             (1)  This section does not apply in relation to a proceeding in the Security Appeals Division.

Limitation on composition of reconstituted Tribunal

             (2)  A direction relating to the reconstitution of the Tribunal must not be given unless the member or members who constitute the reconstituted Tribunal could have constituted the Tribunal for the purposes of the proceeding if the proceeding had commenced immediately before the direction was given.

23D  Tribunal may have regard to record of previous proceeding

Scope

             (1)  This section does not apply in relation to a proceeding in the Security Appeals Division.

Tribunal may have regard to record of previous proceeding

             (2)  If the Tribunal is reconstituted, the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

             (3)  Subsection (2) does not apply in a case where the Tribunal is reconstituted following an order under subsection 44(4) remitting a case to be heard and decided again.

Note 1:       Subsection 44AA(9) applies subsection 44(4) to appeals transferred to the Federal Magistrates Court.

Note 2:       Paragraph 44(6)(b) deals with a proceeding reheard by the Tribunal following an appeal.

23E  Constitution of Tribunal for review of amount taxed—general rule

Scope

             (1)  This section applies to a proceeding (the taxing review proceeding) by way of an application to the Tribunal under subsection 69A(2) for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid by a party to another proceeding (the substantive proceeding).

Constitution of Tribunal for taxing review proceeding

             (2)  For the purposes of the taxing review proceeding, the Tribunal is to be constituted by:

                     (a)  if the Tribunal was constituted for the purposes of the substantive proceeding by a single member—that member; or

                     (b)  if the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members—the member who presided for the purposes of the substantive proceeding.

             (3)  This section has effect subject to section 23F.

23F  Constitution of Tribunal for review of amount taxed—member unavailable

Scope

             (1)  This section applies to a proceeding (the taxing review proceeding) by way of an application to the Tribunal under subsection 69A(2) for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid by a party to another proceeding (the substantive proceeding) if:

                     (a)  in a case where the Tribunal was constituted for the purposes of the substantive proceeding by a single member—that member (the unavailable member):

                              (i)  has stopped being a member; or

                             (ii)  for any reason, is not available to take part in the taxing review proceeding; or

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

                     (b)  in a case where the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members—the member (the unavailable member) who presided at the substantive proceeding:

                              (i)  has stopped being a member; or

                             (ii)  for any reason, is not available to take part in the taxing review proceeding; or

                            (iii)  is directed by the President not to take part in the taxing review proceeding.

Single member Tribunal

             (2)  If the unavailable member constituted the Tribunal for the purposes of the substantive proceeding, the President must direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.

Multiple member Tribunal

             (3)  If the unavailable member is one of the members who constituted the Tribunal for the purposes of the substantive proceeding, the President must:

                     (a)  direct the remaining member, or one of the remaining members, to constitute the Tribunal for the purposes of the taxing review proceeding; or

                     (b)  direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.

Member who stops being a member and becomes a member again

             (4)  For the purposes of this section, a member who:

                     (a)  stops being a member; and

                     (b)  at a later time becomes a member again;

is taken, from that later time, to be another member.

Limitations on President’s powers to give directions

             (5)  The President must not give a direction under subparagraph (1)(a)(iii) or (b)(iii) unless the President is satisfied that the direction is in the interests of justice.

             (6)  The President must not give a direction under paragraph (3)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of the taxing review proceeding unless the President is satisfied that the direction is in the interests of justice.


 

Part IIIAASmall Taxation Claims Tribunal

  

24AA  Definitions

                   In this Part:

determined amount means:

                     (a)  subject to paragraph (b)—$5,000; or

                     (b)  if a higher amount is determined by the regulations—the higher amount.

lower application fee means the fee payable in respect of an application for the review of a relevant taxation decision where subsection 24AC(1) applies in respect of the hearing and determination of the application.

relevant taxation decision means:

                     (a)  a reviewable objection decision under Part IVC of the Taxation Administration Act 1953; or

                     (b)  a decision refusing a request for an extension of time within which to make a taxation objection under section 14ZL of the Taxation Administration Act 1953.

standard application fee means the fee payable in respect of an application for the review of a relevant taxation decision where subsection 24AC(1) does not apply in respect of the hearing and determination of the application.

24AB  Reviews of relevant taxation decisions to be heard before the Taxation Appeals Division

                   Subject to this Part, an application for the review of a relevant taxation decision is to be heard in the Taxation Appeals Division of the Tribunal.

24AC  Small Taxation Claims Tribunal to hear certain tax disputes

             (1)  Subject to section 24AD, if an application is made for the review of a relevant taxation decision and:

                     (a)  either:

                              (i)  the application states the amount that the applicant considers to be the amount of tax in dispute and the amount so stated is less than the determined amount; or

                             (ii)  the application does not state as mentioned in subparagraph (i) but, before the start of the hearing of the application, the applicant notifies the Tribunal in writing of the amount that the applicant considers to be the amount of tax in dispute and the amount so notified is less than the determined amount; or

                    (aa)  the decision relates to an application made by the applicant under section 340‑5 in Schedule 1 to the Taxation Administration Act 1953; or

                     (b)  the decision is a decision refusing a request for an extension of time;

the Taxation Appeals Division, when hearing and determining the application, is to be known as the Small Taxation Claims Tribunal.

             (2)  A notification may be given to the Tribunal under subparagraph (1)(a)(ii) in respect of any application for the review of a relevant taxation decision, whether the application was made before, or is made after, the commencement of this section.

             (3)  Subject to section 24AD, if subparagraph (1)(a)(ii) applies, the applicant is entitled to a refund of so much of the application fee paid as exceeds the lower application fee.

24AD  What happens if the Small Taxation Claims Tribunal considers that the tax in dispute is not less than the determined amount

             (1)  If:

                     (a)  an application is before the Small Taxation Claims Tribunal under paragraph 24AC(1)(a); and

                     (b)  the Tribunal considers that the amount of tax in dispute is not less than the determined amount;

the Tribunal may make an order declaring that subsection 24AC(1) is not to apply.

             (2)  If such an order is made:

                     (a)  the Taxation Appeals Division, when hearing and determining the application, is not to be known as the Small Taxation Claims Tribunal; and

                     (b)  the Tribunal must not proceed to hear and determine the application until the applicant pays an additional fee in respect of the application equal to the difference between the standard application fee and the lower application fee; and

                     (c)  if the additional fee is not paid within the period directed by the Tribunal or, if no such direction is given, within the prescribed period, the Tribunal may dismiss the application but:

                              (i)  if the additional fee is paid after the application is dismissed, the applicant may apply to the Tribunal for reinstatement of the application; and

                             (ii)  if the Tribunal considers it appropriate to do so, the Tribunal may reinstate the application and give any directions that appear to it to be appropriate in the circumstances.

             (3)  If the Tribunal waives the whole or a part of the additional fee:

                     (a)  if the whole of the fee is waived—paragraphs (2)(b) and (c) do not apply; or

                     (b)  if part of the fee is waived—references in those paragraphs to the additional fee are taken to be references to the part of the fee that is not waived.

             (4)  If:

                     (a)  an application is, or 2 or more applications by the same applicant are, before the Small Taxation Claims Tribunal under subsection 24AC(1); and

                     (b)  another application is before the Administrative Appeals Tribunal that:

                              (i)  is made by the same applicant; and

                             (ii)  may, in the opinion of the Registrar, a District Registrar or a Deputy Registrar, be conveniently heard before the Administrative Appeals Tribunal at the same time as the first‑mentioned application or applications;

the following provisions apply:

                     (c)  the applications are to be heard and determined before the Taxation Appeals Division;

                     (d)  that Division, when hearing and determining the applications, is not to be known as the Small Taxation Claims Tribunal;

                     (e)  the Registrar, a District Registrar or a Deputy Registrar may order that only one standard application fee is payable for the applications.


 

Part IIIAManagement of the Tribunal

Division 1Management responsibilities of President and Registrar

24A  Management of administrative affairs of Tribunal

             (1)  The President is responsible for managing the administrative affairs of the Tribunal.

             (2)  For that purpose, the President has power to do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth:

                     (a)  entering into contracts; and

                     (b)  acquiring or disposing of personal property.

             (3)  The powers given to the President by subsection (2) are in addition to any powers given to the President by any other provision of this Act or by any other Act.

             (4)  Subsection (2) does not authorise the President to:

                     (a)  acquire any interest or right that would constitute an interest in land for the purposes of the Lands Acquisition Act 1989; or

                     (b)  enter into a contract under which the Commonwealth is to pay or receive an amount exceeding $250,000 or, if a higher amount is prescribed, that higher amount, except with the approval of the Minister.

24B  Registrar of the Tribunal

                   In the management of the administrative affairs of the Tribunal, the President is assisted by the Registrar of the Tribunal.


 

Division 2Appointment, powers etc. of Registrar

24C  Appointment of Registrar

                   The Registrar is appointed by the Governor‑General on the nomination of the President.

24D  Powers of the Registrar

             (1)  The Registrar has power to do all things necessary or convenient to be done for the purpose of assisting the President under section 24B.

             (2)  In particular, the Registrar may act on behalf of the President in relation to the administrative affairs of the Tribunal.

             (3)  The President may give the Registrar directions regarding the exercise of his or her powers under this Part.

24E  Remuneration of Registrar

             (1)  The Registrar is to be paid the remuneration and allowances determined by the Remuneration Tribunal.

             (2)  If there is no determination in force, the Registrar is to be paid such remuneration as is prescribed.

             (3)  The Registrar is to be paid such other allowances as are prescribed.

             (4)  Remuneration and allowances payable to the Registrar under this section are to be paid out of money appropriated by the Parliament for the purposes of the Tribunal.

24F  Terms and conditions of appointment of Registrar

             (1)  The Registrar holds office for the period (not longer than 5 years) specified in the instrument of his or her appointment, but is eligible for re‑appointment.

             (4)  The Registrar holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the President.

24G  Leave of absence

             (1)  The Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal.

             (2)  The President may grant the Registrar leave of absence, other than recreation leave, on such terms and conditions as to remuneration or otherwise as the President, with the approval of the Minister, determines.

24H  Resignation

             (1)  The Registrar may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

24J  Outside employment of Registrar

             (1)  Except with the consent of the President, the Registrar must not engage in paid employment outside the duties of his or her office.

             (2)  The reference in subsection (1) to paid employment does not include service in the Defence Force.

24K  Termination of appointment

             (1)  The Governor‑General may terminate the appointment of the Registrar for misbehaviour or physical or mental incapacity.

             (2)  The Governor‑General is required to terminate the appointment of the Registrar if the Registrar:

                     (a)  becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of remuneration for their benefit; or

                     (b)  is absent from duty, except on leave of absence granted by the President, for 14 consecutive days or for 28 days in any 12 months; or

                     (c)  engages in paid employment contrary to section 24J; or

                     (d)  fails, without reasonable excuse, to comply with section 24L.

             (3)  If the Registrar is:

                     (a)  an eligible employee for the purposes of the Superannuation Act 1976; or

                     (b)  a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

                     (c)  an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005;

the Governor‑General may, with the Registrar’s consent, retire the Registrar from office on the ground of incapacity.

             (4)  In spite of anything contained in this section, a Registrar who:

                     (a)  is an eligible employee for the purposes of the Superannuation Act 1976; and

                     (b)  has not reached his or her maximum retiring age (within the meaning of that Act);

is not capable of being retired from office on the ground of invalidity (within the meaning of Part IVA of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 54C of that Act.

             (5)  In spite of anything contained in this section, a Registrar who:

                     (a)  is a member of the superannuation scheme established by deed under the Superannuation Act 1990; and

                     (b)  is under 60 years of age;

is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given a certificate under section 13 of that Act.

             (6)  In spite of anything contained in this section, a Registrar who:

                     (a)  is an ordinary employer‑sponsored member of PSSAP, within the meaning of the Superannuation Act 2005; and

                     (b)  is under 60 years of age;

is not capable of being retired from office on the ground of invalidity (within the meaning of that Act) unless the Board (within the meaning of that Act) has given an approval and certificate under section 43 of that Act.

24L  Disclosure of interests by Registrar

                   The Registrar must give written notice to the President of all direct or indirect pecuniary interests that the Registrar has or acquires in any business or in any body corporate carrying on a business.

24M  Acting Registrar

             (1)  The President may, in writing, appoint a person to act in the office of Registrar:

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

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

             (2)  A person appointed to act in the office of Registrar during a vacancy may not continue to act in that office for more than 12 months.

             (3)  Anything done by or in relation to a person purporting to act under subsection (1) is not invalid on the ground that:

                     (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 3Other officers and staff of Tribunal

24N  Officers and staff of the Tribunal

             (1)  In addition to the Registrar, there are to be such District Registrars, Conference Registrars, Deputy Registrars and staff of the Tribunal as are necessary.

          (1A)  The Conference Registrars are appointed by the President.

          (1B)  A person who holds an office of District Registrar, Deputy Registrar or Conference Registrar may be appointed to another of those offices without the appointment affecting his or her appointment to the first‑mentioned office.

             (2)  The District Registrars and Deputy Registrars are appointed by the Registrar.

             (3)  The District Registrars, Conference Registrars, Deputy Registrars and the staff of the Tribunal are to be persons engaged under the Public Service Act 1999.

             (4)  The Registrar may, on behalf of the President, arrange with an Agency Head within the meaning of the Public Service Act 1999, or with an authority of the Commonwealth, for the services of officers or employees of the Agency or of the authority to be made available for the purposes of the Tribunal.

             (5)  The District Registrars, Conference Registrars, Deputy Registrars and the staff of the Tribunal have such duties, powers and functions as are given by this Act or by the President.

24P  Statutory Agency etc. for purposes of Public Service Act

                   For the purposes of the Public Service Act 1999:

                     (a)  the Registrar and the APS employees assisting the Registrar together constitute a Statutory Agency; and

                     (b)  the Registrar is the Head of that Statutory Agency.

24Q  Engagement of consultants etc.

             (1)  The Registrar may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Registrar.

             (2)  An engagement under subsection (1) is to be made:

                     (a)  on behalf of the Commonwealth; and

                     (b)  by written agreement.


 

Division 4Miscellaneous administrative matters

24R  Annual report

             (1)  As soon as practicable after 30 June in each year, the President must prepare and give to the Minister a report of the management of the administrative affairs of the Tribunal during the year.

             (2)  The report must include:

                     (a)  the financial statements required by section 49 of the Financial Management and Accountability Act 1997; and

                     (b)  an audit report on those statements under section 57 of the Financial Management and Accountability Act 1997.

             (3)  The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.

24V  Delegation of administrative powers of President

                   The President may, in writing, delegate all or any of his or her powers under section 24A to any one or more of the members of the Tribunal.

24W  Proceedings arising out of administration of Tribunal

                   Any judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Tribunal under this Part, including any proceeding relating to anything done by the Registrar under this Part, may be instituted by or against the Commonwealth, as the case requires.


 

Part IVReviews by the Tribunal of decisions

Division 1Applications for review of decisions

25  Tribunal may review certain decisions

Enactment may provide for applications for review of decisions

             (1)  An enactment may provide that applications may be made to the Tribunal:

                     (a)  for 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.

             (3)  Where an enactment makes provision in accordance with subsection (1), that enactment:

                     (a)  shall specify the person or persons to whose decisions the provision applies;

                     (b)  may be expressed to apply to all decisions of a person, or to a class of such decisions; and

                     (c)  may specify conditions subject to which applications may be made.

Delegations, acting appointments and authorisations

          (3A)  Where an enactment makes provision in accordance with this section for the making of applications to the Tribunal for the review of decisions of a person made in the exercise of a power conferred on that person, that provision of that enactment applies also in relation to decisions made in the exercise of that power:

                     (a)  by any person to whom that power has been delegated;

                     (b)  in the case where the provision specifies the person by reference to his or her being the holder of a particular office or appointment—by any person for the time being acting in, or performing any of the duties of, that office or appointment; or

                     (c)  by any other person lawfully authorized to exercise that power.

Tribunal’s power to review decisions

             (4)  The Tribunal has power to review any decision in respect of which application is made to it under any enactment.

Tribunal may determine scope of review

          (4A)  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.

Failure of decision‑maker to meet deadline

             (5)  For the purposes of an enactment that makes provision in accordance with this section for the making of applications to the Tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be deemed to constitute the making of a decision by that person at the expiration of that period not to do that act or thing.

Enactment may add to, exclude or modify operation of certain provisions

             (6)  If an enactment provides for applications to the Tribunal:

                     (a)  that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and

                     (b)  those sections and subsections have effect subject to any provisions so included.

What happens if decision‑maker ceases to hold office etc.

             (7)  Where:

                     (a)  a person has made a decision in respect of which an application may be made to the Tribunal;

                     (b)  the person made the decision by reason that he or she held or performed the duties of an office or appointment; and

                     (c)  the person no longer holds or performs the duties of the office or appointment;

this Act has effect as if the decision had been made by:

                     (d)  the person for the time being holding or performing the duties of that office or appointment; or

                     (e)  if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President or an authorised member specifies.

26  Restriction on powers of decision‑maker after application for review is made

             (1)  Subject to section 42D, after an application is made to the Tribunal for a review of a decision, the decision may not be altered otherwise than by the Tribunal on the review unless:

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

                     (b)  the parties to the proceeding, and the Tribunal, consent to the making of the alteration.

             (2)  A reference in subsection (1) to the alteration of a decision is a reference to:

                     (a)  the variation of a decision; or

                     (b)  the setting aside of a decision; or

                     (c)  the setting aside of a decision and the making of a decision in substitution for the decision set aside.

27  Persons who may apply to Tribunal

             (1)  Where this Act or any other enactment (other than the Australian Security Intelligence Organisation Act 1979) provides that an application may be made to the Tribunal for a review of a decision, the application may be made by or on behalf of any person or persons (including the Commonwealth or an authority of the Commonwealth) whose interests are affected by the decision.

             (2)  An organization or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organization or association.

             (3)  Subsection (2) does not apply in relation to a decision given before the organization or association was formed or before the objects or purposes of the organization or association included the matter concerned.

27AA  Applications to Tribunal under Australian Security Intelligence Organisation Act

             (1)  An application under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment may be made by a person in respect of whom the assessment was made and who has, in accordance with Part IV of that Act, been given notice of the assessment.

             (2)  An application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979 for review of the findings of the Tribunal on a review of a security assessment may be made by the person who applied for the review in which the findings were made.

             (3)  If the Tribunal is satisfied that an application referred to in subsection (2) is justified, it may review its previous findings, and this Act applies in relation to such a review and the findings in such a review as if it were the review of an assessment.

27A  Notice of decision and review rights to be given

             (1)  Subject to subsection (2), a person who makes a reviewable 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:

                     (a)  of the making of the decision; and

                     (b)  of the right of the person to have the decision reviewed.

             (2)  Subsection (1) does not apply to:

                     (a)  a decision that is deemed to be made because of the operation of subsection 25(5); or

                     (b)  a decision in respect of which provision relating to the notification of a right of review is made by another enactment; or

                     (c)  any of the following decisions:

                              (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;

                            if the decision does not adversely affect the interests of any other person; or

                     (d)  a decision under the Corporations Act 2001 to which section 1317B of that Act applies;

                     (e)  a decision under the Australian Securities and Investments Commission Act 2001 to which section 244 of that Act applies.

             (3)  A failure to do what this section requires does not affect the validity of the decision.

             (4)  In this section:

reviewable decision means:

                     (a)  a decision that is reviewable by the Tribunal; or

                     (b)  a decision that is reviewable by:

                              (i)  a person whose decision on review is reviewable by the Tribunal; or

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

27B  Review—Code of Practice

             (1)  The Attorney‑General may determine, in writing, a Code of Practice for the purpose of facilitating the operation of subsection 27A(1).

             (2)  A person, in taking action under subsection 27A(1), must have regard to any such Code of Practice that is then in force.

             (3)  A Code of Practice is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

28  Person affected by decision may obtain reasons for decision

Request for statement of reasons

             (1)  Subject to subsection (1AAA), if a person makes a decision in respect of which an application may be made to the Tribunal for a review, any person (in this section referred to as the applicant) who is entitled to apply to the Tribunal for a review of the decision may, by notice in writing given to the person who made the decision, request that person to give to the applicant 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, and the person who made the decision shall, as soon as practicable but in any case within 28 days after receiving the request, prepare, and give to the applicant, such a statement.

Exception—Security Appeals Division

     (1AAA)  Subsection (1) does not apply to a decision if the powers of the Tribunal in respect of an application for review of the decision are required by subsection 19(6) to be exercised in the Security Appeals Division.

What happens if decision‑maker contests applicant’s entitlement to statement of reasons

       (1AA)  Where a person to whom a request for a statement in relation to a decision is made by an applicant under subsection (1) is of the opinion that the applicant is not entitled to be given the statement, that person shall, as soon as practicable but in any case within 28 days after receiving the request, give to the applicant notice in writing of his or her opinion.

        (1AB)  A person who gives a notice under subsection (1AA) with respect to a request for a statement in relation to a decision is not required to comply with the request unless the Tribunal, on application under subsection (1AC), decides that the applicant was entitled to be given the statement, and, if the Tribunal so decides, the first‑mentioned person shall prepare the statement and give it to the applicant within 28 days after the decision of the Tribunal is given.

        (1AC)  The Tribunal shall, on an application being made, as prescribed, by an applicant who has received a notice under subsection (1AA) with respect to a request for a statement in relation to a decision, decide whether the applicant was, or was not, entitled to be given the statement.

When decision‑maker may refuse to give statement of reasons

          (1A)  A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and give the statement if:

                     (a)  in the case of a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—the request was not made on or before the twenty‑eighth day after the day on which that document was given to the applicant; or

                     (b)  in any other case—the request was not made within a reasonable time after the decision was made;

and in any such case the person to whom the request was made shall give to the applicant, as soon as practicable but in any case within 28 days after receiving the request, notice in writing stating that the statement will not be given to him or her and giving the reason why the statement will not be so given.

          (1B)  For the purposes of paragraph (1A)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Tribunal, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.

Public interest certificate

             (2)  If the Attorney‑General certifies, by writing signed by him or her, that the disclosure of any matter contained in a statement prepared in accordance with subsection (1) would be contrary to the public interest:

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

                     (b)  by reason that 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;

subsections (3) and (3A) have effect.

             (3)  A person to whom a request for a statement in relation to a decision is made under subsection (1):

                     (a)  is not required to include in the statement any matter in relation to which the Attorney‑General has given a certificate under subsection (2); and

                     (b)  where the statement would be false or misleading if it did not include such matter—is not required by subsection (1) to give the statement to the applicant.

          (3A)  Where a certificate is given under subsection (2) in relation to matter contained in a statement prepared in accordance with subsection (1) in relation to a decision:

                     (a)  the person who made the decision shall notify the applicant in writing:

                              (i)  in a case where the matter is not included in the statement—that the matter is not so included and giving the reason for not including the matter; or

                             (ii)  in a case where the statement is not given—that the statement will not be given and giving the reason for not giving the statement; and

                     (b)  subsections 36(2), (3), (3A) and (4) and 36D(1) to (6), inclusive, apply in relation to any statement referred to in paragraph 37(1)(a) in relation to that decision that is lodged with the Tribunal under section 37 as if the certificate were a certificate given under subsection 36(1) in relation to any such matter that is contained in the last‑mentioned statement.

When applicant not entitled to request statement of reasons

             (4)  The applicant is not entitled to make a request under subsection (1) if:

                     (a)  the decision sets out the findings on material questions of fact, refers to the evidence or other material on which those findings were based and gives the reasons for the decision, and a document setting out the terms of the decision has been given to him or her; or

                     (b)  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 has already been given to him or her.

Inadequate statement of reasons

             (5)  If the Tribunal, upon application, as prescribed, for a declaration under this subsection made to it by an applicant to whom a statement has been given in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Tribunal may make a declaration accordingly, and, where the Tribunal makes such a declaration, the person to whom the request for the statement was made shall, as soon as practicable but in any case within 28 days after the Tribunal makes the declaration, give to the applicant an additional statement or additional statements containing further and better particulars in relation to matters specified in the declaration with respect to those findings, that evidence or other material or those reasons.

29  Manner of applying for review

             (1)  An application to the Tribunal for a review of a decision:

                     (a)  shall be in writing; and

                     (b)  may be made in accordance with the prescribed form; and

                     (c)  except if paragraph (ca) or (cb) applies—must contain a statement of the reasons for the application; and

                    (ca)  in respect of an application made under subsection 54(1) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment—must be accompanied by:

                              (i)  a copy of the assessment as given to the applicant; and

                             (ii)  a statement indicating any part or parts of the assessment with which the applicant does not agree and setting out the grounds on which the application is made; and

                    (cb)  in respect of an application under subsection 54(2) of the Australian Security Intelligence Organisation Act 1979—must be accompanied by a statement setting out the grounds on which the application is made;

                     (d)  if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5)—shall be lodged with the Tribunal within the prescribed time.

Note:          Paragraph 33(1)(c) provides that the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Address at which documents may be given

          (1A)  If, in an application, a person does not provide an address at which documents in relation to the proceeding may be given, any address of the person shown in the application, or later notified to the Tribunal as an address at which such documents may be given, is taken to be an address provided by the person at which such documents may be given.

Tribunal may request amendment of insufficient statement

          (1B)  If:

                     (a)  an application contains a statement under paragraph (1)(c); and

                     (b)  the Tribunal is of the opinion that the statement is not sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision;

the Tribunal may, by notice given to the applicant, request the applicant to amend the statement, within the period specified in the notice, so that the statement is sufficient to enable the Tribunal to readily identify the respects in which the applicant believes that the decision is not the correct or preferable decision.

Prescribed time for making applications—general

             (2)  Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:

                     (a)  if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or

                     (b)  if the decision does not set out those findings and reasons:

                              (i)  if a statement in writing setting out those findings and reasons is given to the applicant otherwise than in pursuance of a request under subsection 28(1) not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision is given to the applicant—the day on which the statement is so given;

                             (ii)  if the applicant, in accordance with subsection 28(1), requests the person who made the decision to give a statement as mentioned in that subsection—the day on which the statement is given or the applicant is notified in accordance with subsection 28(3A) that the statement will not be given; or

                            (iii)  in any other case—the day on which a document setting out the terms of the decision is given to the applicant.

Prescribed time for making applications—decision‑maker’s failure to meet deadline

             (3)  In the case of a decision that is deemed to be made by reason of the operation of subsection 25(5), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is deemed to be made and ending:

                     (a)  in a case to which paragraph (b) does not apply—on the twenty‑eighth day after that day; or

                     (b)  in the case where the person whose failure to do an act or thing within a particular period is deemed by subsection 25(5) to constitute the making of the decision makes or purports to make, after the expiration of that period, a decision either to do or not to do that act or thing, being a decision the terms of which were recorded in writing and set out in a document that was given to the applicant—on the twenty‑eighth day after:

                              (i)  if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant; or

                             (ii)  if the decision does not set out those findings and reasons—the day that would be ascertained under paragraph (2)(b) if subsection (2) were applicable in relation to the decision.

What happens if there is no prescribed time for making applications

             (4)  Where:

                     (a)  no time is prescribed for the lodging with the Tribunal of applications for review of a particular decision; or

                     (b)  no time is prescribed for the lodging with the Tribunal by a particular person of an application for a review of a particular decision;

and the Tribunal is of the opinion that the application was not lodged within a reasonable time after the decision was made, the Tribunal shall, subject to subsection (6):

                     (c)  in a case to which paragraph (a) applies—refuse to entertain an application for a review of the decision referred to in that paragraph; or

                     (d)  in a case to which paragraph (b) applies—refuse to entertain an application by the person referred to in that paragraph for a review of the decision so referred to.

             (5)  In forming an opinion for the purposes of subsection (4), the Tribunal shall have regard to:

                     (a)  the time when the applicant became aware of the making of the decision; and

                     (b)  in a case to which paragraph (4)(b) applies—the period or periods prescribed for the lodging by another person or other persons of an application or applications for review of the decision;

and may have regard to any other matters that it considers relevant.

             (6)  Notwithstanding subsection (4), the Tribunal may entertain an application referred to in that subsection if it is of the opinion that there are special circumstances that justify it in doing so.

Tribunal may extend time for making application

             (7)  The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

             (8)  The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

             (9)  Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to give notice of the application to a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.

           (10)  If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal, as prescribed, stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.

Decision‑maker to be notified of application for review

           (11)  The Registrar, a District Registrar or a Deputy Registrar shall cause notice in writing of an application for a review of a decision, in accordance with the prescribed form, to be given to the person who made the decision.

29A  Applications—payment of fees

             (1)  Subject to subsection (2), an application to the Tribunal, whether for a review of a decision or otherwise, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid.

             (2)  An application in respect of which a fee is waived under the regulations, whether at the time of lodgment or later, is taken to be made at the time it is lodged with the Tribunal.

29B  Notice of application

                   If an application is duly made to the Tribunal for the review of a security assessment, the Tribunal must cause a copy of the application, and of the statement lodged with the application, to be given to the Director‑General of Security and to the Commonwealth agency to which the assessment was given.

Division 2Parties and procedure

30  Parties to proceeding before Tribunal

Scope

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

Parties

             (1)  Subject to paragraph 42A(2)(b), the parties to a proceeding before the Tribunal for a review of a decision are:

                     (a)  any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision;

                     (b)  the person who made the decision;

                     (c)  if the Attorney‑General intervenes in the proceeding under section 30A—the Attorney‑General; and

                     (d)  any other person who has been made a party to the proceeding by the Tribunal on application by the person in accordance with subsection (1A).

Note:          See also subsections 36(3A) and 36A(2A) (Attorney‑General deemed to be a party to certain proceedings), and subsections 36B(4) and 36C(3) (State Attorney‑General deemed to be a party to certain proceedings).

Person whose interests are affected may apply to be a party

          (1A)  Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply, in writing, to the Tribunal to be made a party to the proceeding, and the Tribunal may, in its discretion, by order, make that person a party to the proceeding.

Official name

             (2)  A person who is a party to a proceeding before the Tribunal:

                     (a)  by reason of a decision made by him or her in the performance of the duties of an office or appointment; or

                     (b)  by reason of the operation of subsection 25(7);

shall be described in the proceeding by his or her official name.

30A  Intervention by Attorney‑General

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

             (1)  The Attorney‑General may, on behalf of the Commonwealth, intervene in a proceeding before the Tribunal.

             (2)  Where the Attorney‑General intervenes under subsection (1) in a proceeding for a review of a decision, the Attorney‑General may authorize the payment to a party to the proceeding by the Commonwealth of such costs as he or she considers were reasonably incurred by that party in relation to the proceeding as a result of that intervention.

31  Tribunal to determine persons whose interests are affected by decision

             (1)  Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.

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

32  Representation before Tribunal

                   At the hearing of a proceeding before the Tribunal, a party to the proceeding may appear in person or may be represented by some other person.

33  Procedure of Tribunal

             (1)  In a proceeding before the Tribunal:

                     (a)  the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;

                     (b)  the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and

                     (c)  the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

Decision‑maker must assist Tribunal

       (1AA)  In a proceeding before the Tribunal for a review of a decision, the person who made the decision must use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding.

Directions hearing

          (1A)  The President or an authorised member may hold a directions hearing in relation to a proceeding.

Who may give directions

             (2)  For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given:

                     (a)  where the hearing of the proceeding has not commenced—by a person holding a directions hearing in relation to the proceeding, by the President, by an authorised member or by an authorised Conference Registrar; and

                     (b)  where the hearing of the proceeding has commenced—by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.

Types of directions

          (2A)  Without limiting the operation of this section, a direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may:

                     (a)  require any person who is a party to the proceeding to provide further information in relation to the proceeding; or

                     (b)  require the person who made the decision to provide a statement of the grounds on which the application will be resisted at the hearing; or

                     (c)  require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed at the hearing.

Directions may be varied or revoked

             (3)  A direction as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be varied or revoked at any time by any member or Conference Registrar empowered in accordance with this section to give such a direction in relation to the proceeding at that time.

Authorised Conference Registrar

             (4)  The President may authorise a particular Conference Registrar to be an authorised Conference Registrar for the purposes of paragraph (2)(a).

             (5)  An authorisation under subsection (4) may be:

                     (a)  general; or

                     (b)  limited to:

                              (i)  a particular reviewable decision or particular reviewable decisions; or

                             (ii)  reviewable decisions included in a particular class or classes of reviewable decisions; or

                            (iii)  a particular proceeding or particular proceedings; or

                            (iv)  proceedings included in a particular class or classes of proceedings.

             (6)  The President may at any time vary or revoke an authorisation under subsection (4).

             (7)  In this section:

authorised Conference Registrar means a Conference Registrar authorised under subsection (4).

reviewable decision means a decision in respect of which an application to the Tribunal for review has been, or may be, made.

Division 3Alternative dispute resolution processes

34  Scope of Division

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

34A  Referral of proceeding for alternative dispute resolution process

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

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

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

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

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

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

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

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

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

                     (a)  a proceeding; or

                     (b)  a part of a proceeding; or

                     (c)  a matter arising out of a proceeding;

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

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

Scope

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

Statement about alternative dispute resolution processes to be given to applicant

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

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

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

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

Referral of matter for alternative dispute resolution process

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

                     (a)  the proceeding; or

                     (b)  any part of the proceeding; or

                     (c)  any matter arising out of the proceeding;

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

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

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

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

                     (a)  a proceeding; or

                     (b)  a part of a proceeding; or

                     (c)  a matter arising out of a proceeding;

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

34C  Directions by President

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

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

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

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

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

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

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

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

                     (a)  a member; or

                     (b)  an officer of the Tribunal; or

                     (c)  a person engaged under section 34H.

34D  Agreement about the terms of a decision etc.

             (1)  If:

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

                              (i)  in the proceeding; or

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

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

                            that would be acceptable to the parties; and

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

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

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

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

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

             (3)  If the agreement relates to:

                     (a)  a part of the proceeding; or

                     (b)  a matter arising out of the proceeding;

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

34E  Evidence not admissible

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

                     (a)  in any court; or

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

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

Exceptions

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

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

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

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

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

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

                   If:

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

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

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

34G  Participation by telephone etc.

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

                     (a)  telephone; or

                     (b)  closed‑circuit television; or

                     (c)  any other means of communication.

34H  Engagement of persons to conduct alternative dispute resolution processes

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

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

Division 4Hearings and evidence

34J  Circumstances in which hearing may be dispensed with

                   If:

                     (a)  it appears to the Tribunal that the issues for determination on the review of a decision can be adequately determined in the absence of the parties; and

                     (b)  the parties consent to the review being determined without a hearing;

the Tribunal may review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.

35  Hearings to be in public except in special circumstances

Scope

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

Public hearing

             (1)  Subject to this section, the hearing of a proceeding before the Tribunal shall be in public.

          (1A)  If, at a time a hearing is in public, a person participates in the hearing by a means allowed under section 35A, the Tribunal is to take such steps as are reasonably necessary to ensure that the public nature of the hearing is preserved.

Private hearing etc.

             (2)  Where the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, the Tribunal may, by order:

                     (a)  direct that a hearing or part of a hearing shall take place in private and give directions as to the persons who may be present; and

                    (aa)  give directions prohibiting or restricting the publication of the names and addresses of witnesses appearing before the Tribunal; and

                     (b)  give directions prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; and

                     (c)  give directions prohibiting or restricting the disclosure to some or all of the parties to a proceeding of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceeding.

             (3)  In considering:

                     (a)  whether the hearing of a proceeding should be held in private; or

                     (b)  whether publication, or disclosure to some or all of the parties, of evidence given before the Tribunal, or of a matter contained in a document lodged with the Tribunal or received in evidence by the Tribunal, should be prohibited or restricted;

the Tribunal shall take as the basis of its consideration the principle that it is desirable that hearings of proceedings before the Tribunal should be held in public and that evidence given before the Tribunal and the contents of documents lodged with the Tribunal or received in evidence by the Tribunal should be made available to the public and to all the parties, but shall pay due regard to any reasons given to the Tribunal why the hearing should be held in private or why publication or disclosure of the evidence or the matter contained in the document should be prohibited or restricted.

35AA  Restriction on publication of evidence and findings in a proceeding before the Security Appeals Division

                   For the purposes of a proceeding before the Security Appeals Division to which section 39A applies, the Tribunal may give directions prohibiting or restricting the publication of:

                     (a)  evidence given before the Tribunal; or

                     (b)  the names and addresses of witnesses before the Tribunal; or

                     (c)  matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal; or

                     (d)  the whole or any part of its findings on the review.

35A  Participation by telephone etc.

             (1)  A person holding a directions hearing and the Tribunal in the hearing of a proceeding may allow a person to participate by:

                     (a)  telephone; or

                     (b)  closed‑circuit television; or

                     (c)  any other means of communication.

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

36  Disclosure not required: Attorney‑General’s public interest certificate

Scope

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

Attorney‑General may issue public interest certificate

             (1)  If the Attorney‑General certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:

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

                     (b)  by reason that it would involve the disclosure of deliberations or decisions 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 information or the matter contained in the document should not be disclosed;

the following provisions of this section have effect.

Protection of information etc.

             (2)  A person who is required by or under this Act to disclose the information or to produce to, or lodge with, the Tribunal the document in which the matter is contained for the purposes of a proceeding is not excused from the requirement but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information or the matter contained in the document is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.

Disclosure of information etc.

             (3)  Where the Attorney‑General has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly.

Attorney‑General taken to be a party

          (3A)  Where, in relation to a proceeding to which the Attorney‑General would not, but for this subsection, be a party, the Attorney‑General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a) or (b), the Attorney‑General shall, for the purposes of this Act, be deemed to be a party to the proceeding.

What Tribunal must consider in deciding whether to disclose information etc.

             (4)  In considering whether information or matter contained in a document should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the functions of the Tribunal that the parties to a proceeding should be made aware of all relevant matters but shall pay due regard to any reason specified by the Attorney‑General in the certificate as a reason why the disclosure of the information or of the matter contained in the document, as the case may be, would be contrary to the public interest.

36A  Answering questions where Attorney‑General intervenes on public interest grounds

Scope

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

Intervention by Attorney‑General

             (1)  Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney‑General may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36(1).

When person excused from answering question

             (2)  Where the Attorney‑General so informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless:

                     (a)  in the case where the reason specified is, or the reasons specified include, a reason referred to in paragraph 36(1)(a) or (b)—a court, on an appeal under section 44 or a reference under section 45, decides that the answering of the question would not be contrary to the public interest; or

                     (b)  in any other case—the Tribunal decides that the answering of the question would not be contrary to the public interest.

Attorney‑General taken to be a party

          (2A)  Where the Attorney‑General informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest, being a proceeding to which the Attorney‑General would not, but for this subsection, be a party, the Attorney‑General shall, for the purposes of this Act, be deemed to be a party to the proceeding.

36B  Disclosure not required: State Attorney‑General’s public interest certificate

Scope

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

State Attorney‑General may issue public interest certificate

             (1)  If the Attorney‑General of a State certifies, by writing signed by him or her, that the disclosure of information concerning a specified matter, or the disclosure of any matter contained in a document, would be contrary to the public interest:

                     (a)  by reason that it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State; or

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

the following provisions of this section have effect.

Protection of information etc.

             (2)  A person who is required by or under this Act to disclose the information, or to produce to, or lodge with, the Tribunal the document in which the matter is contained, for the purposes of a proceeding is not excused from the requirement, but the Tribunal shall, subject to subsection (3) and to section 46, do all things necessary to ensure that the information, or the matter contained in the document, is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the proceeding, and, in the case of a document produced to or lodged with the Tribunal, to ensure the return of the document to the person by whom it was produced or lodged.

Disclosure of information etc.

             (3)  Where the Attorney‑General of a State has certified in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a), the Tribunal shall consider whether the information or the matter should be disclosed to all or any of the parties to the proceeding and, if it decides that the information or the matter should be so disclosed, the Tribunal shall make the information available or permit the part of the document containing the matter to be inspected accordingly.

State Attorney‑General taken to be a party

             (4)  Where, in relation to a proceeding to which the Attorney‑General of a State would not, but for this subsection, be a party, that Attorney‑General certifies in accordance with subsection (1) that the disclosure of information, or of matter contained in a document, would be contrary to the public interest but the certificate does not specify a reason referred to in paragraph (1)(a), that Attorney‑General shall, for the purposes of this Act, be taken to be a party to the proceeding.

What Tribunal must consider in deciding whether to disclose information etc.

             (5)  In considering whether information, or matter contained in a document, should be disclosed as mentioned in subsection (3), the Tribunal shall take as the basis of its consideration the principle that it is desirable in the interest of securing the effective performance of the Tribunal’s functions that the parties to a proceeding should be made aware of all relevant matters, but shall pay due regard to any reason that the Attorney‑General of the State has specified in the certificate as a reason why the disclosure of the information, or of the matter contained in the document, as the case may be, would be contrary to the public interest.

36C  Answering questions where State Attorney‑General intervenes on public interest grounds

Scope

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

Intervention by State Attorney‑General

             (1)  Where, at the hearing of a proceeding before the Tribunal, a person is asked a question in the course of giving evidence, the Attorney‑General of a State may inform the Tribunal that, in his or her opinion, the answering of the question would be contrary to the public interest for a specified reason or reasons, being a reason or reasons mentioned in subsection 36B(1).

When person excused from answering question

             (2)  Where the Attorney‑General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question would be contrary to the public interest, that person is excused from answering the question unless:

                     (a)  if the reason specified is, or the reasons specified include, a reason referred to in paragraph 36B(1)(a)—a court, on an appeal under section 44 or a reference under section 45, decides that the answering of the question would not be contrary to the public interest; or

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

State Attorney‑General taken to be a party

             (3)  Where the Attorney‑General of a State informs the Tribunal that, in his or her opinion, the answering by a person of a question at the hearing of a proceeding would be contrary to the public interest and, but for this subsection, that Attorney‑General would not be a party to the proceeding, that Attorney‑General shall, for the purposes of this Act, be taken to be a party to the proceeding.

36D  Public interest questions under sections 36, 36A and 36C

Scope

       (1AA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

Parties to be notified of Tribunal’s decision

             (1)  As soon as practicable after making a decision:

                     (a)  under subsection 36(3) or 36B(3) in relation to information, or matter contained in a document, in relation to a proceeding; or

                     (b)  under paragraph 36A(2)(b) or 36C(2)(b) in relation to the answering of a question at the hearing of a proceeding;

the Tribunal shall give to each party to the proceeding a document setting out the terms of the Tribunal’s decision.

Question of law

             (2)  For the purposes of this Act:

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

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

is a question of law.

Constitution of Tribunal

             (3)  The Tribunal’s power to make a decision under subsection 36(3) or 36B(3) or paragraph 36A(2)(b) or 36C(2)(b) may be exercised only by the Tribunal constituted by a presidential member who is a Judge of the Federal Court of Australia.

Appeals

             (4)  A decision by the Tribunal:

                     (a)  under subsection 36(3) or 36B(3) as to whether or not information, or matter contained in a document, should be disclosed to all or any of the parties to a proceeding; or

                     (b)  under paragraph 36A(2)(b) or 36C(2)(b) that the answering of a question at the hearing of a proceeding would, or would not, be contrary to the public interest;

is a decision by the Tribunal in that proceeding for the purposes of section 44.

Disclosure of information etc. to officers and staff of Tribunal

             (5)  Nothing in section 36 or 36B prevents the disclosure of information, or of matter contained in a document, to a member of the staff of the Tribunal or to the Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar in the course of the performance of his or her duties as a member of the staff of the Tribunal or as Registrar, District Registrar, Conference Registrar or Deputy Registrar.

Public interest

             (6)  Sections 36 and 36B exclude the operation of any rules of law that relate to the public interest and would otherwise apply in relation to the disclosure of information, or of matter contained in documents, in proceedings before the Tribunal.

Commonwealth Attorney‑General or State Attorney‑General may appear or be represented

             (7)  The Attorney‑General, or the Attorney‑General of a State:

                     (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 section 36A or 36C; or

                     (b)  may so inform the Tribunal of his or her opinion by causing to be sent to the Tribunal a written certificate that is signed by him or her and sets out that opinion.

37  Lodging of material documents with Tribunal

Scope

     (1AAA)  This section does not apply to a proceeding in the Security Appeals Division to which section 39A applies.

Decision‑maker must lodge statement of reasons and relevant documents

             (1)  Subject to this section, a person who has made a decision that is the subject of an application for a review by the Tribunal must, within 28 days after receiving notice of the application (or within such further period as the Tribunal allows), lodge with the Tribunal 2 copies of:

                     (a)  a statement 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; and

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

       (1AA)  The Tribunal may direct a person who is required to lodge with the Tribunal 2 copies of a statement or other document or part of a document under subsection (1) to lodge with the Tribunal such number of additional copies, and within such period, as the Tribunal determines and, if the Tribunal gives such a direction, the person must comply with it.

Document setting out reasons for decision may be lodged instead of statement

        (1AB)  Subject to any other Act, the President may, in relation to a particular decision or class of decisions, direct that the person who is obliged to lodge with the Tribunal the statement referred to in paragraph (1)(a) may, in lieu of lodging the statement, lodge with the Tribunal, within the period applicable under subsection (1), 2 copies of the document setting out the reasons for the decision that is the subject of the application for review.

        (1AC)  If a person has, in accordance with a direction given under subsection (1AB), lodged with the Tribunal 2 copies of the document setting out the reasons for a decision, the Tribunal may at any later time direct the person to lodge with the Tribunal, within such period as the Tribunal determines, a statement in accordance with paragraph (1)(a).

       (1AD)  If a person who has made a decision that is the subject of an application for a review by the Tribunal has given to a party to the proceeding a statement in relation to the decision under subsection 28(1), the reference in paragraph (1)(a) to a statement is taken to be a reference to the statement given under subsection 28(1).

Statement of reasons and relevant documents to be given to other party

        (1AE)  A person who is required under subsection (1) or (1AB) to lodge 2 copies of a statement or other document or part of a document with the Tribunal under this section within a particular period must also give a copy of the statement or other document or part of a document within that period to each other party to the proceeding.

When document not required to be lodged

        (1AF)  If:

                     (a)  a person who has made a decision that is the subject of an application for a review by the Tribunal would, apart from this subsection, be required under paragraph (1)(b) to lodge 2 copies of a document or a part of a document with the Tribunal in respect of the application; and

                     (b)  within the period applicable under subsection (1) the person:

                              (i)  applies to the Tribunal for a direction under subsection 35(2) in relation to the document or part of the document and lodges with the Tribunal, together with the application for the direction, 2 copies of the document or part of the document; and

                             (ii)  gives a copy of the application for the direction to each party to the application for review;

                   the person is not required to comply with paragraph (1)(b) in relation to the document or part of the document unless and until the Tribunal, after hearing the application for the direction, directs the person to do so.

        (1AG)  Subsection (1AF) does not affect the obligation of a person referred to in that subsection to comply with paragraph (1)(b) in relation to any document or part of a document to which that subsection does not apply.

Tribunal may shorten deadline for lodging documents

          (1A)  If it appears to the Tribunal that a party to a proceeding before the Tribunal for a review of a decision would or might suffer hardship if the period prescribed by subsection (1) for lodging with the Tribunal for the purposes of the review the copies of the documents mentioned in that subsection is not shortened, the Tribunal may, upon request being made, as prescribed, by that party, make an order directing that those copies be lodged with the Tribunal within such period (being a period of less than 28 days) after the person who made the decision receives or received notice of the application as is specified in the order.

What happens if application lodged out of time

          (1B)  Where an application that has been lodged with the Tribunal for a review of a decision was not lodged within the time within which it was required by section 29 to be lodged, the reference in subsection (1) to the period of 28 days after the person who made the decision receives notice of the application for a review shall be read as a reference to the period of 28 days after the day on which that person so receives notice or the day on which the Tribunal makes a determination extending the time for the making of the application for a review, whichever is the later.

          (1C)  The Tribunal may, upon request being made, as prescribed, by a party to a proceeding before the Tribunal for a review of a decision, direct, by order, that subsection (1B) shall have effect in relation to an application for a review of the decision as if the last reference in that subsection to a period of 28 days were a reference to such shorter period as is specified in the order.

          (1D)  Subsection (1B) does not apply in relation to an application for a review of a decision if the decision is the subject of another application to which subsection (1B) does not apply.

Tribunal may require other documents to be lodged

             (2)  Where the Tribunal is of the opinion that particular other documents or that other documents included in a particular class of documents may be relevant to the review of the decision by the Tribunal, the Tribunal may cause to be given to the person a notice in writing stating that the Tribunal is of that opinion and requiring the person to lodge with the Tribunal, within a time specified in the notice, the specified number of copies of each of those other documents that is in his or her possession or under his or her control, and a person to whom such a notice is given shall comply with the notice.

Privilege and public interest

             (3)  This section has effect notwithstanding any rule of law relating to privilege or the public interest in relation to the production of documents.

38  Power of Tribunal to obtain additional statements

             (1)  Where the Tribunal considers that a statement referred to in paragraph 37(1)(a) that is lodged by a person with the Tribunal does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for a decision, the Tribunal may order that person to lodge with the Tribunal, within a time specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons.

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

38A  Director‑General of Security to lodge certain material with Tribunal

             (1)  If an application for review of a security assessment is made in a case in which the Attorney‑General has given a certificate certifying in accordance with paragraph 38(2)(b) of the Australian Security Intelligence Organisation Act 1979, the Director‑General of Security must, within 30 days after receiving notice of the application, lodge with the Tribunal a copy of the certificate, together with a copy of the whole of the assessment.

             (2)  The Tribunal must not, at any time, tell the applicant of the existence of, or permit the applicant to have access to any copy or particulars of, a certificate of the Attorney‑General referred to in subsection (1) or any matter to which the certificate relates.

39  Opportunity to make submissions concerning evidence

             (1)  Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

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

39A  Procedure at certain hearings in Security Appeals Division

Review of security assessment

             (1)  If an application for a review of a security assessment is made to the Tribunal, the Tribunal is to review the assessment in accordance with this section.

Parties

             (2)  The parties to the proceeding are the Director‑General of Security and the applicant, but the Commonwealth agency to which the assessment is given is entitled to adduce evidence and make submissions.

Director‑General of Security must present all relevant information

             (3)  It is the duty of the Director‑General of Security to present to the Tribunal all relevant information available to the Director‑General, whether favourable or unfavourable to the applicant.

Member may require parties to attend etc.

             (4)  The presidential member who is to preside, or is presiding, at the hearing may, at any time, require either or both of the parties to attend or be represented before the member for the purpose of conferring with the member concerning the conduct of the review with a view to identifying the matters in issue or otherwise facilitating the conduct of the proceedings.

Proceedings to be in private

             (5)  The proceedings are to be in private and, subject to this section, the Tribunal is to determine what people may be present at any time.

Right of parties etc. to be present

             (6)  Subject to subsection (9), the applicant and a person representing the applicant may be present when the Tribunal is hearing submissions made or evidence adduced by the Director‑General of Security or the Commonwealth agency to which the assessment was given.

             (7)  The Director‑General of Security or a person representing the Director‑General, and a person representing the Commonwealth agency to which the assessment was given, may be present when the Tribunal is hearing submissions made or evidence adduced by the applicant.

Security/defence certificate

             (8)  The Minister administering the Australian Security Intelligence Organisation Act 1979 (the responsible Minister) may, by signed writing, certify that evidence proposed to be adduced or submissions proposed to be made by or on behalf of the Director‑General of Security or the Commonwealth agency to which the assessment was given are of such a nature that the disclosure of the evidence or submissions would be contrary to the public interest because it would prejudice security or the defence of Australia.

             (9)  If such a certificate is given:

                     (a)  the applicant must not be present when the evidence is adduced or the submissions are made; and

                     (b)  a person representing the applicant must not be present when the evidence is adduced or the submissions are made unless the responsible Minister consents.

           (10)  If a person representing the applicant is present when evidence to which a certificate given under subsection (8) relates is adduced or submissions to which such a certificate relates are made, the representative must not disclose any such evidence or submission to the applicant or to any other person.

Penalty:  Imprisonment for 2 years.

Note:          Subsection 4B(2) of the Crimes Act 1914 allows a court to impose an appropriate fine instead of, or in addition to, a term of imprisonment.

Protection of identity of person giving evidence

           (11)  If the Director‑General of Security so requests, the Tribunal must do all things necessary to ensure that the identity of a person giving evidence on behalf of the Director‑General of Security is not revealed.

Evidence and submissions

           (12)  The Tribunal must first hear evidence adduced, and submissions made, by or on behalf of the Director‑General of Security and any evidence or submissions that the Commonwealth agency to which the assessment was given may wish to adduce or make.

           (13)  The Tribunal must next permit the applicant, if he or she so desires, to adduce evidence before, and make submissions to, the Tribunal.

           (14)  The Tribunal may, on its own initiative and at any stage of the proceedings, invite a person to give evidence, or cause a person to be summoned to give evidence.

           (15)  If a person invited or summoned to give evidence under subsection (14) is an officer or employee of the Australian Security Intelligence Organisation or of the Commonwealth agency to which the assessment was given, subsection (8) applies as if any evidence to be given by the person were evidence proposed to be adduced by or on behalf of the Director‑General of Security or that agency, as the case may be.

           (16)  If:

                     (a)  a party presents his or her case to the Tribunal; and

                     (b)  after that case has been presented, the other party adduces evidence; and

                     (c)  the Tribunal thinks that, because of evidence adduced by the other party, the first‑mentioned party should be further heard;

the Tribunal must give the first‑mentioned party an opportunity of adducing further evidence but must not give to the applicant any particulars of any evidence to which a certificate given under subsection (8) relates.

           (17)  A member of the Tribunal may ask questions of a witness before the Tribunal and the presidential member presiding may require a witness to answer any such question.

Dismissal of application

           (18)  If the applicant fails within a reasonable time:

                     (a)  to proceed with the application; or

                     (b)  to comply with a direction by the Tribunal in relation to the application;

a presidential member or senior member, on behalf of the Tribunal, may dismiss the application without proceeding to review the security assessment.

39B  Certain documents and information not to be disclosed in proceedings before Security Appeals Division

Scope

             (1)  This section applies to a proceeding in the Security Appeals Division to which section 39A applies.

Attorney‑General may issue public interest certificate

             (2)  If the Attorney‑General certifies, by signed writing, that the disclosure of information with respect to a matter stated in the certificate, or the disclosure of the contents of a document, would be contrary to the public interest:

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

                     (b)  because it would involve the disclosure of deliberations or decisions of the Cabinet or a Committee of the Cabinet or of the Executive Council; or

                     (c)  for any other reason stated 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 information or the contents of the document should not be disclosed;

the following provisions of this section have effect.

Protection of information etc.

             (3)  A person who is required by or under this Act to disclose the information or to produce the document to the Tribunal for the purposes of a proceeding is not excused from the requirement, but the Tribunal must, subject to subsections (4), (5) and (7) and section 46, do all things necessary to ensure:

                     (a)  that the information or the contents of the document are not disclosed to anyone other than a member of the Tribunal as constituted for the purposes of the proceeding; and

                     (b)  in respect of a document produced to the Tribunal—that the document is returned to the person by whom it was produced.

             (4)  Subsection (3) does not apply in relation to disclosure to the Director‑General of Security or his or her representative if the reason stated in the certificate is the reason referred to in paragraph (2)(a).

Disclosure of information etc.

             (5)  If:

                     (a)  the Attorney‑General has certified in accordance with subsection (2) that the disclosure of information or of the contents of a document would be contrary to the public interest but the certificate does not state a reason referred to in paragraph (2)(a) or (b); and

                     (b)  the presidential member presiding is satisfied that the interests of justice outweigh the reason stated by the Attorney‑General;

the presidential member may authorise the disclosure of the information, or of the contents of the document to, the applicant.

What presidential member must consider in deciding whether to authorise disclosure of information etc.

             (6)  In considering whether information or the contents of a document should be disclosed as mentioned in subsection (5):

                     (a)  the presidential member must take as the basis of his or her consideration the principle that it is desirable, in the interest of ensuring that the Tribunal performs its functions effectively, that the parties should be made aware of all relevant matters; but

                     (b)  the presidential member must pay due regard to any reason stated by the Attorney‑General in the certificate as a reason why the disclosure of the information or of the contents of the document, as the case may be, would be contrary to the public interest.

Disclosure of information etc. to staff of Tribunal

             (7)  This section does not prevent the disclosure of information or of the contents of a document to a member of the Tribunal’s staff in the course of the performance of his or her duties as a member of the Tribunal’s staff.

Public interest

             (8)  This section excludes the operation, apart from this section, of any rules of law relating to the public interest that would otherwise apply in relation to the disclosure of information or of the contents of documents in a proceeding.

Copy of document

             (9)  If the Attorney‑General has given a certificate under subsection (2) in respect of a document, this section applies in relation to a document that is a copy of the first‑mentioned document as if the copy were the original document.

Certificate lodged under subsection 38A(1)

           (10)  For the purposes of this section, if the Director‑General of Security, in accordance with subsection 38A(1), has lodged with the Tribunal a certificate of the Attorney‑General given under subsection 38(2) of the Australian Security Intelligence Organisation Act 1979, the certificate is taken to be a certificate certifying to the Tribunal that the disclosure of the information to which the certificate relates would be contrary to the public interest because it would prejudice security.

Duty of Tribunal

           (11)  It is the duty of the Tribunal, even though there may be no relevant certificate under this section, to ensure, so far as it is able to do so, that, in or in connection with a proceeding, information is not communicated or made available to a person contrary to the requirements of security.

Division 5Procedural powers of Tribunal

40  Powers of Tribunal etc.

             (1)  For the purpose of reviewing a decision, the Tribunal may:

                     (a)  take evidence on oath or affirmation;

                     (b)  proceed in the absence of a party who has had reasonable notice of the proceeding; and

                     (c)  adjourn the proceeding from time to time.

Summons

          (1A)  Subject to subsection (1B), for the purposes of the hearing of a proceeding before the Tribunal, the member presiding at the hearing, the Registrar, a District Registrar or a Deputy Registrar may summon a person to appear before the Tribunal at that hearing:

                     (a)  to give evidence; or

                     (b)  to give evidence and produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons; or

                     (c)  to produce any books, documents or things in the possession, custody or control of the person or persons named in the summons that are mentioned in the summons.

          (1B)  A summons under subsection (1A) may require a person to appear at a directions hearing to produce books, documents or things instead of at the hearing before the Tribunal.

          (1C)  A person (other than a presidential member, a senior member or an authorised member) who, under subsection (1A), may summon a person to appear before the Tribunal must not refuse a request to do so unless the refusal is authorised by a presidential member, a senior member or an authorised member.

          (1D)  A presidential member, a senior member or an authorised member may give a party to a proceeding leave to inspect a document produced under a summons.

           (1E)  A person named in a summons for production of a book, document or thing may produce the book, document or thing at the Registry where the summons was issued before the date specified in the summons and, unless the Tribunal otherwise directs, is not required to attend the hearing concerned unless the person is also required to give evidence at the hearing concerned.

Oath or affirmation

             (2)  The member who presides at the hearing of a proceeding before the Tribunal:

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

                     (b)  may administer an oath or affirmation to a person so appearing before the Tribunal; and

                     (c)  if a person participates by a means allowed under section 35A, may make such arrangements as appear to the member to be appropriate in the circumstances in relation to administering an oath or affirmation to the person.

             (3)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the answers he or she will give to questions asked him or her will be true.

Representation

             (4)  A person summoned to appear before the Tribunal may request that he or she be represented by counsel or a solicitor and upon such request being made the Tribunal may allow such person to be represented.

Tribunal’s power to take evidence

             (5)  The power of the Tribunal under paragraph (1)(a) to take evidence on oath or affirmation may be exercised on behalf of the Tribunal in relation to a particular proceeding before the Tribunal by the member who is to preside at the hearing of that proceeding or by another person (whether a member or not) authorized by the first‑mentioned member and that power may be so exercised within or outside Australia but the Tribunal may direct that the power is to be exercised subject to limitations specified by the Tribunal.

             (6)  Where a person other than the member who is to preside at the hearing of a proceeding is authorized to take evidence in relation to the proceeding in accordance with subsection (5):

                     (a)  the person has, for the purpose of taking that evidence, all the powers of the Tribunal under subsection (1) and all the powers under subsection (2) of the member who is to preside at the hearing of the proceeding; and

                     (b)  for the purpose of the exercise of those powers by that person, this Act has effect (except where the context otherwise requires) as if a reference to the Tribunal or to the member who is to preside at the hearing of a proceeding included a reference to that person.

Incidental proceedings

             (7)  The application of this section extends to a directions hearing under this Act or an alternative dispute resolution process under Division 3 (an incidental proceeding) as if it were a proceeding before the Tribunal and a power that under this section is conferred on the Tribunal or a member of the Tribunal for the purpose of reviewing a decision may be exercised for the purposes of an incidental proceeding by the person holding the directions hearing or the person conducting the alternative dispute resolution process, as the case may be.

41  Operation and implementation of a decision that is subject to review

             (1)  Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.

             (2)  The Tribunal may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.

             (3)  Where an order is in force under subsection (2) (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on request being made, as prescribed, by a party to the relevant proceeding, make an order varying or revoking the first‑mentioned order.

             (4)  Subject to subsection (5), the Tribunal shall not:

                     (a)  make an order under subsection (2) unless the person who made the decision to which the relevant proceeding relates has been given a reasonable opportunity to make a submission to the Tribunal, as the case may be, in relation to the matter; or

                     (b)  make an order varying or revoking an order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)) unless:

                              (i)  the person who made the decision to which the relevant proceeding relates;

                             (ii)  the person who requested the making of the order under subsection (2); and

                            (iii)  if the order under subsection (2) has previously been varied by an order or orders under subsection (3)—the person or persons who requested the making of the last‑mentioned order or orders;

                            have been given a reasonable opportunity to make submissions to the Tribunal, as the case may be, in relation to the matter.

             (5)  Subsection (4) does not prohibit the Tribunal from making an order without giving to a person referred to in that subsection a reasonable opportunity to make a submission to the Tribunal in relation to a matter if the Tribunal is satisfied that, by reason of the urgency of the case or otherwise, it is not practicable to give that person such an opportunity but, where an order is so made without giving such an opportunity to the person who made the decision to which the relevant proceeding relates, the order does not come into operation until a notice setting out the terms of the order is given to that person.

             (6)  An order in force under subsection (2) (including an order that has previously been varied on one or more occasions under subsection (3)):

                     (a)  is subject to such conditions as are specified in the order; and

                     (b)  has effect until:

                              (i)  where a period for the operation of the order is specified in the order—the expiration of that period or, if the application for review is decided by the Tribunal before the expiration of that period, the decision of the Tribunal on the application for review comes into operation; or

                             (ii)  if no period is so specified—the decision of the Tribunal on the application for review comes into operation.

42  Resolving disagreements

2 members

             (1)  If:

                     (a)  2 members constitute the Tribunal for the purposes of a particular proceeding; and

                     (b)  the members do not agree about any matter arising in the proceeding;

the view of the presiding member prevails.

3 members

             (2)  If:

                     (a)  3 members constitute the Tribunal for the purposes of a particular proceeding; and

                     (b)  the members do not agree about any matter arising in the proceeding; and

                     (c)  the matter does not consist of a question of law;

then:

                     (d)  if the majority agree—the view of the majority prevails; or

                     (e)  otherwise—the view of the presiding member prevails.

             (3)  If:

                     (a)  3 members constitute the Tribunal for the purposes of a particular proceeding; and

                     (b)  the members do not agree about a question of law arising in the proceeding;

the view of the presiding member prevails.

Question of law

             (4)  A reference in this section to a question of law includes a reference to the question of whether a particular question is one of law.

42A  Discontinuance, dismissal, reinstatement etc. of application

Dismissal if parties consent

             (1)  Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.

Deemed dismissal—applicant discontinues or withdraws application

          (1A)  A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.

          (1B)  If notification is so given, the Tribunal is taken to have dismissed the application without proceeding to review the decision.

Dismissal if party fails to appear

             (2)  If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:

                     (a)  if the person who failed to appear is the applicant—dismiss the application without proceeding to review the decision; or

                     (b)  in any other case—direct that the person who failed to appear shall cease to be a party to the proceeding.

             (3)  For the purposes of subsection (2), a person is taken to appear in person or by a representative at a directions hearing or hearing of a proceeding if the person or the person’s representative, as the case may be, participates in it by a means allowed under section 35A.

          (3A)  For the purposes of subsection (2), a person is taken to appear in person or by a representative at an alternative dispute resolution process if the person or the person’s representative, as the case may be, participates in it by a means allowed under section 34G.

Dismissal if decision not reviewable

             (4)  If:

                     (a)  a person makes an application to the Tribunal for a review of a decision; and

                     (b)  the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;

the Tribunal may dismiss the application without proceeding to review the decision.

Dismissal if applicant fails to proceed or fails to comply with Tribunal’s direction

             (5)  If an applicant for a review of a decision fails within a reasonable time:

                     (a)  to proceed with the application; or

                     (b)  to comply with a direction by the Tribunal in relation to the application;

the Tribunal may dismiss the application without proceeding to review the decision.

Dismissed application taken to be concluded

             (6)  If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.

Dismissal if party fails to appear—giving of appropriate notice

             (7)  Before exercising its powers under subsection (2), the Tribunal must be satisfied that appropriate notice was given to the person who failed to appear of the time and place of the directions hearing, conference, mediation or hearing, as the case may be.

Reinstatement of application

             (8)  If the Tribunal, under subsection (2), has dismissed an application (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), the person who made the application may, within 28 days after receiving notification that the application has been dismissed, apply to the Tribunal for reinstatement of the application.

             (9)  If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

           (10)  If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.

42B  Power of Tribunal where a proceeding is frivolous or vexatious

             (1)  Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:

                     (a)  dismiss the application; and

                     (b)  if the Tribunal considers it appropriate, on the application of a party to the proceedings, direct that the person who made the application must not, without leave of the Tribunal, make a subsequent application to the Tribunal of a kind or kinds specified in the direction.

             (2)  A direction given by the Tribunal under paragraph (1)(b) has effect despite any other provision of this Act or a provision of any other Act.

             (3)  The Tribunal may discharge or vary such a direction.

42C  Power of Tribunal if parties reach agreement

             (1)  If, at any stage of a proceeding for a review of a decision:

                     (a)  agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and

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

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

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

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

             (3)  If the agreement relates to a part of the proceeding or a matter arising out of the proceeding, the Tribunal may in its decision in the proceeding give effect to the terms of the agreement without, if it has not already done so, dealing at the hearing of the proceeding with the part of the proceeding or the matter arising out of the proceeding, as the case may be, to which the agreement relates.

42D  Power to remit matters to decision‑maker for further consideration

             (1)  At any stage of a proceeding for review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.

Powers of person to whom a decision is remitted

             (2)  If a decision is so remitted to a person, the person may reconsider the decision and may:

                     (a)  affirm the decision; or

                     (b)  vary the decision; or

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

Note:          For time limits, see subsection (5).

             (3)  If the person varies the decision:

                     (a)  the application is taken to be an application for review of the decision as varied; and

                     (b)  the person who made the application may either:

                              (i)  proceed with the application for review of the decision as varied; or

                             (ii)  withdraw the application.

             (4)  If the person sets the decision aside and makes a new decision in substitution for the decision set aside:

                     (a)  the application is taken to be an application for review of the new decision; and

                     (b)  the person who made the application may either:

                              (i)  proceed with the application for review of the new decision; or

                             (ii)  withdraw the application.

Time limits

             (5)  The person must reconsider the decision, and do one of the things mentioned in paragraphs (2)(a), (b) and (c), within whichever of the following periods is applicable:

                     (a)  if the Tribunal, when remitting the decision, specified a period within which the person was to reconsider the decision—that period;

                     (b)  in any other case—the period of 28 days beginning on the day on which the decision was remitted to the person.

             (6)  The Tribunal may, on the application of the person, extend the period applicable under subsection (5).

             (7)  If the person has not reconsidered the decision, and done one of the things mentioned in paragraphs (2)(a), (b) and (c), within the period applicable under subsection (5), the person is taken to have affirmed the decision.

             (8)  If the person affirms the decision, the proceeding resumes.

Division 6Tribunal’s decision on review

43  Tribunal’s decision on review

          (1A)  This section has effect subject to section 43AAA and to subsection 65(3) of the Australian Security Intelligence Organisation Act 1979.

Tribunal’s decision on review

             (1)  For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

                     (a)  affirming the decision under review;

                     (b)  varying the decision under review; or

                     (c)  setting aside the decision under review and:

                              (i)  making a decision in substitution for the decision so set aside; or

                             (ii)  remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Tribunal must give reasons for its decision

             (2)  Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

          (2A)  Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement.

          (2B)  Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

Tribunal must give copies of its decision to parties

             (3)  The Tribunal shall cause a copy of its decision to be given to each party to the proceeding.

Evidence of Tribunal’s decision or order

             (4)  Without prejudice to any other method available by law for the proof of decisions or orders of the Tribunal, a document purporting to be a copy of such a decision or order, and to be certified by the Registrar, a District Registrar or a Deputy Registrar to be a true copy of the decision or order, is, in any proceeding, prima facie evidence of the decision or order.

             (5)  Subsections (3) and (4) apply in relation to reasons given in writing by the Tribunal for its decision as they apply in relation to the decision.

When Tribunal’s decision comes into operation

          (5A)  Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.

          (5B)  The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.

          (5C)  Despite subsections (5A) and (5B), if:

                     (a)  the Tribunal has made an order under subsection 41(2) staying the operation or implementation of the decision under review; and

                     (b)  the order was in force immediately before the decision given by the Tribunal on the review;

then, unless the Tribunal, the Federal Court of Australia or the Federal Magistrates Court otherwise orders, the operation or implementation of the Tribunal’s decision is stayed until:

                     (c)  subject to paragraph (d), the end of the period within which a party to the proceeding before the Tribunal may appeal from the decision to the Federal Court of Australia under subsection 44(1) (including any further time for bringing the appeal that is allowed by the Federal Court before the end of that period); or

                     (d)  if such an appeal is brought—the appeal is determined.

Tribunal’s decision taken to be decision of decision‑maker

             (6)  A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect.

Division 7Miscellaneous

43AAA  Findings of Tribunal in certain proceedings before Security Appeals Division

Scope

             (1)  This section applies to a review conducted by the Security Appeals Division.

Findings

             (2)  Upon the conclusion of a review, the Tribunal must make and record its findings in relation to the security assessment, and those findings may state the opinion of the Tribunal as to the correctness of, or justification for, any opinion, advice or information contained in the assessment.

             (3)  The Tribunal must not make findings in relation to an assessment that would, under section 61 of the Australian Security Intelligence Organisation Act 1979, have the effect of superseding any information that is, under subsection 37(2) of that Act, taken to be part of the assessment unless those findings state that, in the Tribunal’s opinion, the information is incorrect, is incorrectly represented or could not reasonably be relevant to the requirements of security.

Copies of findings to be given to parties etc.

             (4)  Subject to subsection (5), the Tribunal must cause copies of its findings to be given to the applicant, the Director‑General of Security, the Commonwealth agency to which the assessment was given and the Attorney‑General.

             (5)  The Tribunal may direct that the whole or a particular part of its findings, so far as they relate to a matter that has not already been disclosed to the applicant, is not to be given to the applicant or is not to be given to the Commonwealth agency to which the assessment was given.

Applicant may publish findings

             (6)  Subject to any direction by the Tribunal, the applicant is entitled to publish, in any manner that he or she thinks fit, the findings of the Tribunal so far as they have been given to him or her.

Tribunal may attach comments to findings

             (7)  The Tribunal may attach to a copy of findings to be given to the Director‑General under this section, any comments the Tribunal wishes to make on matters relating to procedures or practices of the Australian Security Intelligence Organisation that have come to the Tribunal’s attention as a result of a review.

             (8)  The Tribunal must give the Minister a copy of any comments attached as mentioned in subsection (7).

43AA  Correction of errors in decisions or statement of reasons

Correction of errors

             (1)  If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.

             (2)  If the text of a decision or statement 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)  Examples of obvious errors in the text of a decision or statement of reasons are where:

                     (a)  there is an obvious clerical or typographical error in the text of the decision or statement of reasons; or

                     (b)  there is an inconsistency between the decision and the statement of reasons.

Exercise of powers

             (4)  The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceeding to which the decision relates.

43A  Return of documents etc. at completion of proceeding

             (1)  Where:

                     (a)  a proceeding before the Tribunal has concluded; and

                     (b)  the time within which an appeal from the decision of the Tribunal in the proceeding may be instituted, or, if that time has been extended, the period of the extension, has expired but no such appeal has been instituted;

the President may cause a document or any other object given to the Tribunal for the purposes of the proceeding to be returned to the person by whom it was given.

             (2)  Where the Federal Court of Australia or the Federal Magistrates Court causes a document sent to the court in accordance with paragraph 46(1)(a) or (c) in connexion with a proceeding before the court to be returned to the Tribunal, the President may cause the document to be returned to the person by whom it was given to the Tribunal.


 

Part IVAAppeals and references of questions of law to the Federal Court of Australia

  

43B  Part applies whether Tribunal’s power conferred by an enactment or by a law of a State

             (1)  This Part applies in relation to a proceeding that was before the Tribunal before the commencement of this section, or that is before the Tribunal after that commencement, under power conferred on it by or under:

                     (a)  an enactment; or

                     (b)  a law of a State.

             (2)  This Part has effect in relation to a proceeding before the Tribunal under power conferred on it by a law of a State 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.

44  Appeals to Federal Court of Australia from decisions of the Tribunal

Appeal on question of law

             (1)  A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding.

Appeal about standing

             (2)  Where a person has applied to the Tribunal for a review of a decision, or has applied to be made a party to a proceeding before the Tribunal for a review of a decision, and the Tribunal decides that the interests of the person are not affected by the decision, the person may appeal to the Federal Court of Australia from the decision of the Tribunal.

When and how appeal instituted

          (2A)  An appeal by a person under subsection (1) or (2) shall be instituted:

                     (a)  not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows; and

                     (b)  in such manner as is prescribed by rules of court made under the Federal Court of Australia Act 1976.

          (2B)  In the interest of justice, the grounds on which the Federal Court of Australia may allow further time under paragraph (2A)(a) include, but are not limited to, the following grounds:

                     (a)  if the Tribunal made an oral statement as to the reasons for the decision and afterwards gave a written statement of reasons for the decision—the written statement contains reasons that were not mentioned in the oral statement;

                     (b)  the text of the decision or a statement of reasons for the decision has been altered under section 43AA.

Jurisdiction

             (3)  The Federal Court of Australia has jurisdiction to hear and determine appeals instituted in that Court in accordance with subsections (1) and (2) and that jurisdiction:

                     (a)  may be exercised by that Court constituted as a Full Court;

                     (b)  shall be so exercised if:

                              (i)  the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; and

                             (ii)  after consulting the President, the Chief Justice of that Court considers that it is appropriate for the appeal from the decision to be heard and determined by that Court constituted as a Full Court; and

                     (c)  shall be so exercised if the Tribunal’s decision was given by the Tribunal constituted by a member who was, or by members at least one of whom was, a Judge.

Powers of Federal Court

             (4)  The Federal Court of Australia shall hear and determine the appeal and may make such order as it thinks appropriate by reason of its decision.

             (5)  Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.

Constitution of Tribunal if Federal Court remits case etc.

             (6)  If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal:

                     (a)  the Tribunal need not be constituted for the hearing by the person or persons who made the decision to which the appeal relates; and

                     (b)  whether or not the Tribunal is reconstituted for the hearing—the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.

Federal Court may make findings of fact

             (7)  If a party to a proceeding before the Tribunal appeals to the Federal Court of Australia under subsection (1), the Court may make findings of fact if:

                     (a)  the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

                     (b)  it appears to the Court that it is convenient for the Court to make the findings of fact, having regard to:

                              (i)  the extent (if any) to which it is necessary for facts to be found; and

                             (ii)  the means by which those facts might be established; and

                            (iii)  the expeditious and efficient resolution of the whole of the matter to which the proceeding before the Tribunal relates; and

                            (iv)  the relative expense to the parties of the Court, rather than the Tribunal, making the findings of fact; and

                             (v)  the relative delay to the parties of the Court, rather than the Tribunal, making the findings of fact; and

                            (vi)  whether any of the parties considers that it is appropriate for the Court, rather than the Tribunal, to make the findings of fact; and

                           (vii)  such other matters (if any) as the Court considers relevant.

             (8)  For the purposes of making findings of fact under subsection (7), the Federal Court of Australia may:

                     (a)  have regard to the evidence given in the proceeding before the Tribunal; and

                     (b)  receive further evidence.

             (9)  Subsection (7) does not limit the Federal Court of Australia’s power under subsection (5) to make an order remitting the case to be heard and decided again by the Tribunal.

           (10)  The jurisdiction of the Federal Court of Australia under subsection (3) includes jurisdiction to make findings of fact under subsection (7).

44AA  Transfer of appeals from Federal Court to Federal Magistrates Court

Transfer of appeals

             (1)  If an appeal under subsection 44(1) or (2) is pending in the Federal Court of Australia, the Federal Court of Australia may, by order, transfer the appeal from the Federal Court of Australia to the Federal Magistrates Court.

             (2)  However, the Federal Court of Australia must not transfer an appeal to the Federal Magistrates Court if the appeal:

                     (a)  relates to a decision given by the Tribunal constituted by a member who was, or by members at least one of whom was, a presidential member; or

                     (c)  is of a kind specified in the regulations.

             (3)  The Federal Court of Australia may transfer an appeal under subsection (1):

                     (a)  on the application of a party to the appeal; or

                     (b)  on its own initiative.

Federal Court Rules

             (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 of Australia 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 of Australia must consult the Federal Magistrates Court.

Matters to which the Federal Court must have regard in transferring appeal

             (7)  In deciding whether to transfer an appeal to the Federal Magistrates Court under subsection (1), the Federal Court of Australia must have regard to:

                     (a)  any Rules of Court made for the purposes of subsection (5); and

                     (b)  whether proceedings in respect of an associated matter are 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).

Powers etc.

             (9)  Subsections 44(4), (5) and (6) 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 the way in which they apply to the hearing and determination of an appeal by the Federal Court of Australia.

No appeal from decision of Federal Court

           (10)  An appeal does not lie from a decision of the Federal Court of Australia in relation to the transfer of an appeal under subsection (1).

Federal Magistrates Court may make findings of fact

           (11)  If an appeal under subsection 44(1) is transferred to the Federal Magistrates Court under subsection (1) of this section, subsections 44(7), (8) and (9) apply in relation to the making of findings of fact by the Federal Magistrates Court in a corresponding way to the way in which they apply to the making of findings of fact by the Federal Court of Australia.

           (12)  The jurisdiction of the Federal Magistrates Court under subsection (8) of this section includes jurisdiction to make findings of fact under subsection 44(7) (as applied by subsection (11) of this section).

44A  Operation and implementation of a decision that is subject to appeal

Appeal does not affect operation of Tribunal’s decision

             (1)  Subject to this section, the institution of an appeal to the Federal Court of Australia from a decision of the Tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.

Stay orders

             (2)  Where an appeal is instituted in the Federal Court of Australia from a decision of the Tribunal, that Court or a Judge of that Court may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

                     (a)  the decision of the Tribunal or a part of that decision; and

                     (b)  the decision to which the proceeding before the Tribunal related or a part of that decision;

as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

          (2A)  If an appeal from a decision of the Tribunal is transferred from the Federal Court of Australia to the Federal Magistrates Court, the Federal Magistrates Court or a Federal Magistrate may make such order or orders staying or otherwise affecting the operation or implementation of either or both of the following:

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

                     (b)  the decision to which the proceeding before the Tribunal related or a part of that decision;

as the Federal Magistrates Court or Federal Magistrate considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

             (3)  If an order is in force under subsection (2) or (2A) (including an order that has previously been varied on one or more occasions under this subsection):

                     (a)  the Federal Court of Australia or a Judge of that Court; or

                     (b)  the Federal Magistrates Court or a Federal Magistrate;

may make an order varying or revoking the first‑mentioned order.

             (4)  An order in force under subsection (2) or (2A) (including an order that has previously been varied on one or more occasions under subsection (3)):

                     (a)  is subject to such conditions as are specified in the order; and

                     (b)  has effect until:

                              (i)  where a period for the operation of the order is specified in the order—the expiration of that period or, if a decision is given on the appeal before the expiration of that period, the giving of the decision; or

                             (ii)  where no period is so specified—the giving of a decision on the appeal.

45  Reference of questions of law to Federal Court of Australia

             (1)  The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but:

                     (a)  a question must not be so referred without the concurrence of the President; and

                     (c)  in respect of a proceeding before the Small Taxation Claims Tribunal—in so referring a question, the interests of the applicant seeking review of a relevant taxation decision must be taken into account.

             (2)  The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section and that jurisdiction shall be exercised by that Court constituted as a Full Court.

             (3)  Where a question of law arising in any proceeding has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in that proceeding:

                     (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 of Australia on the question.

46  Sending of documents to, and disclosure of documents by, the Federal Court of Australia and the Federal Magistrates Court

Sending of documents to courts

             (1)  When an appeal is instituted in the Federal Court of Australia in accordance with section 44 or a question of law is referred to that Court in accordance with section 45:

                     (a)  the Tribunal shall, despite subsections 36(2), 36B(2) and 39B(3), cause to be sent to the Court all documents that were before the Tribunal in connexion with the proceeding to which the appeal or reference relates; and

                     (b)  except in the case of an appeal that is transferred to the Federal Magistrates Court—at the conclusion of the proceeding before the Federal Court of Australia in relation to the appeal or reference, the Court shall cause the documents to be returned to the Tribunal; and

                     (c)  in the case of an appeal that is transferred to the Federal Magistrates Court:

                              (i)  the Federal Court of Australia must cause the documents to be sent to the Federal Magistrates Court; and

                             (ii)  at the conclusion of the proceedings before the Federal Magistrates Court in relation to the appeal, the Federal Magistrates Court must cause the documents to be returned to the Tribunal.

Disclosure of documents by courts

             (2)  If there is in force in respect of any of the documents a certificate in accordance with subsection 28(2), 36(1), 36B(1) or 39B(2) certifying that the disclosure of matter contained in the document would be contrary to the public interest, the Federal Court of Australia or the Federal Magistrates Court shall, subject to subsection (3), 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. However, this subsection does not prevent the Federal Court of Australia from causing the document to be sent to the Federal Magistrates Court as mentioned in subparagraph (1)(c)(i).

             (3)  If:

                     (a)  the certificate referred to in subsection (2) relating to matter contained in the document does not specify a reason referred to in paragraph 28(2)(a) or (b), 36(1)(a) or (b), 36B(1)(a), or 39B(2)(a), as the case may be;

                     (b)  a question for decision by the Federal Court of Australia or the Federal Magistrates Court is whether the matter should be disclosed to some or all of the parties to the proceeding before the Tribunal in respect of which the appeal was instituted or the reference was made; and

                     (c)  the court decides that the matter should be so disclosed;

the court shall permit the part of the document in which the matter is contained to be inspected accordingly.

             (4)  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 VAdministrative Review Council

  

47  Interpretation

             (1)  In this Part, unless the contrary intention appears:

appointed member means a member referred to in paragraph 49(1)(d).

Council means the Administrative Review Council.

member means a member of the Council.

             (2)  A reference in this Part to an administrative decision or an administrative discretion includes a reference to an administrative decision made, or administrative discretion exercised, otherwise than under an enactment.

48  Establishment of Council

                   There is hereby established a Council by the name of the Administrative Review Council.

49  Composition of Council

             (1)  The Council shall consist of:

                     (a)  the President; and

                     (b)  the Commonwealth Ombudsman holding office under the Ombudsman Act 1976; and

                     (c)  the President of the Australian Law Reform Commission established by the Australian Law Reform Commission Act 1996; and

                     (d)  not fewer than 3 other members or more than:

                              (i)  unless subparagraph (ii) applies, 10 other members; or

                             (ii)  if a higher number than 10 is prescribed by the regulations for the purposes of this subparagraph—that higher number of members.

             (2)  The members referred to in paragraph (1)(d) shall be appointed by the Governor‑General and shall be appointed as part‑time members.

          (2A)  The Governor‑General shall appoint one of the members to be the President of the Council.

             (3)  The performance of the functions or the exercise of the powers of the Council is not affected by a vacancy in the office of a member referred to in paragraph (1)(a), (b) or (c) or by reason of the number of appointed members falling below 3 for not more than 3 months.

50  Qualifications for appointment

                   A person is not to be appointed as a member referred to in paragraph 49(1)(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.

51  Functions and powers of Council

             (1)  The functions of the Council are:

                    (aa)  to keep the Commonwealth administrative law system under review, monitor developments in administrative law and recommend to the Minister improvements that might be made to the system; and

                    (ab)  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 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; and

                     (a)  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; and

                     (b)  to make recommendations to the Minister 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; and

                     (c)  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 Minister as to any improvements that might be made in that law or practice; and

                     (d)  to inquire into:

                              (i)  the qualification required for membership of authorities of the Commonwealth, and the qualifications required by other persons, engaged in the review of administrative decisions; and

                             (ii)  the extent of the jurisdiction to review administrative decisions that is conferred on those authorities and other persons; and

                            (iii)  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 subparagraph (iii) and recommend to the Minister any improvements that might be made in respect of any of the matters referred to in subparagraphs (i), (ii) and (iii); and

                     (e)  to make recommendations to the Minister as to the manner in which tribunals engaged in the review of administrative decisions should be constituted; and

                      (f)  to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and and

                     (g)  to facilitate the training of members of authorities of the Commonwealth and other persons in exercising administrative discretions or making administrative decisions; and

                     (h)  to promote knowledge about the Commonwealth administrative law system; and

                      (i)  to consider, and report to the Minister on, matters referred to the Council by the Minister.

             (2)  The Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions.

             (3)  If the Council holds an inquiry, or gives any advice, referred to in paragraph (1)(ab), the Council must give the Minister a copy of any findings made by the Council in the inquiry or a copy of the advice, as the case may be.

51A  Minister may give directions to the Council

                   The Minister may, by writing given to the President of the Council, give directions to the Council in respect of the performance of its functions or the exercise of its powers and the Council must comply with any such directions.

51B  Minister may refer matters to the Council

                   The Minister may, by writing given to the President of the Council, refer matters to the Council for inquiry and report.

51C  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 Minister to the Council for inquiry and report;

the Council is to prepare a report on the matter and give the report to the Minister.

             (2)  The Minister must cause a copy of a report so given to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

52  Period of appointment

General rule

             (1)  Subject to this section, an appointed member shall be appointed for such period, not exceeding 3 years, as the Governor‑General specifies in the instrument of his or her appointment, but is eligible for re‑appointment.

Special rule—appointment for a particular project

             (2)  An instrument of appointment of a person as an appointed member may state that the person is appointed for the purposes of a particular project specified in the instrument that is being, or is to be, undertaken by the Council.

             (3)  If an instrument of appointment of a person contains a statement as mentioned in subsection (2), subsection (1) does not apply to the appointment but:

                     (a)  the person is to be appointed for such period, not exceeding 3 years, as is specified in the instrument of appointment; and

                     (b)  the person is to take part in the project and has the rights of a member only for the purposes of taking part in the project; and

                     (c)  the Governor‑General may at any time, by writing, terminate the appointment; and

                     (d)  if the appointment has not previously ended under paragraph (a) or under section 54 or 55 or been terminated under paragraph (c), it ends when the President of the Council certifies in writing that the Council has finished the project; and

                     (e)  when the appointment ends or is terminated, the person is eligible for reappointment, whether for the purpose of taking part in the same project or another project or otherwise.

53  Remuneration and allowances

             (1)  An appointed member shall be paid such remuneration as is determined by the Remuneration Tribunal but, if no determination of that remuneration by that Tribunal is in operation, he or she shall be paid such remuneration as is prescribed.

             (2)  An appointed member shall be paid such allowances as are prescribed.

             (3)  This section has effect subject to the Remuneration Tribunal Act 1973‑1974.

54  Resignation

             (1)  An appointed member may resign his or her appointment by giving the Governor‑General a written resignation.

             (2)  The resignation takes effect on the day it is received by the Governor‑General or, if a later day is specified in the resignation, on that later day.

55  Removal from office

             (1)  The Governor‑General may remove an appointed member from office for misbehaviour or incapacity.

             (2)  If an appointed member is absent, except by leave of the Minister, from 3 consecutive meetings of the Council, the Governor‑General may remove him or her from office.

56  Meetings

             (1)  The Council shall hold such meetings as are necessary for the performance of its functions.

Convening meeting

             (2)  The President of the Council may at any time convene a meeting of the Council.

             (3)  The President of the Council shall, on receipt of a request in writing signed by 3 members, convene a meeting of the Council.

Quorum

             (4)  At a meeting of the Council, 4 members constitute a quorum.

Who is to preside

             (5)  The President of the Council shall preside at all meetings of the Council at which he or she is present.

             (6)  If the President of the Council is not present at a meeting of the Council, the members present shall elect one of their number to preside at that meeting and the person so elected shall preside accordingly.

Questions to be determined by majority

             (7)  Questions arising at a meeting of the Council shall be determined by a majority of the votes of the members present and voting.

Presiding member has deliberative vote etc.

             (8)  The 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.

Council may regulate meetings

             (9)  The Council may regulate the conduct of proceedings at its meetings as it thinks fit and shall keep minutes of those proceedings.

Acting ombudsman may attend meetings

           (10)  A person acting in the office of the Commonwealth Ombudsman may attend a meeting of the Council and, in relation to a meeting of the Council that he or she attends in pursuance with this subsection, shall be deemed to be the Commonwealth Ombudsman.

57  Staff of Council

                   The staff of the Council shall be persons engaged under the Public Service Act 1999.

58  Annual Report

             (1)  The Council shall, as soon as practicable after 30 June in each year, prepare and give to the Minister a report of the operations of the Council during that year.

             (2)  The Minister shall cause the report of the Council to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Minister.

             (3)  The first report by the Council shall relate to the period commencing on the date of commencement of this Act and ending on 30 June 1977.


 

Part VIMiscellaneous

  

59  Advisory opinions

                   If an enactment so provides, the Tribunal may give an advisory opinion on a matter or question referred to it in accordance with the enactment and, for the purpose of giving such an opinion, the Tribunal may hold such hearings and inform itself in such manner as it thinks appropriate.

59A  Authorised members

             (1)  The President may authorise a particular member to be an authorised member for the purposes of one or more specified provisions of this Act.

             (2)  An authorisation under subsection (1), to the extent to which it relates to a particular provision of this Act, may be:

                     (a)  general; or

                     (b)  limited to:

                              (i)  a particular reviewable decision or particular reviewable decisions; or

                             (ii)  reviewable decisions included in a particular class or classes of reviewable decisions; or

                            (iii)  a particular proceeding or particular proceedings; or

                            (iv)  proceedings included in a particular class or classes of proceedings.

             (3)  The President may at any time vary or revoke an authorisation under subsection (1).

             (4)  In this section:

reviewable decision means a decision in respect of which an application to the Tribunal for review has been, or may be, made.

60  Protection of members, alternative dispute resolution practitioners, Registrars, District Registrars, Deputy Registrars, Conference Registrars, barristers and witnesses

Members

             (1)  A member has, in the performance of his or her duties as a member, the same protection and immunity as a Justice of the High Court.

Alternative dispute resolution practitioners

          (1A)  An alternative dispute resolution practitioner has, in the performance of his or her duties as an alternative dispute resolution practitioner under this Act, the same protection and immunity as a Justice of the High Court.

Registrars, District Registrars or Deputy Registrars

          (1B)  A Registrar, a District Registrar or a Deputy Registrar has, in the performance of his or her duties as a Registrar, a District Registrar or a Deputy Registrar under section 40 or 69A, the same protection and immunity as a Justice of the High Court.

Conference Registrars

          (1C)  A Conference Registrar has, in the performance of his or her duties as a Conference Registrar under paragraph 33(2)(a), the same protection and immunity as a Justice of the High Court.

Barristers etc.

             (2)  A barrister, solicitor or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.

Witnesses

             (3)  Subject to this Act, a person summoned to attend or appearing before the Tribunal as a witness has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court.

             (4)  In this section:

alternative dispute resolution practitioner means a person who conducts an alternative dispute resolution process under Division 3 of Part IV.

61  Failure to comply with summons

Summons to appear as a witness

             (1)  A person is guilty of an offence if:

                     (a)  the person is given, as prescribed, a summons under this Act to appear as a witness before the Tribunal; and

                     (b)  the person:

                              (i)  fails to attend as required by the summons; or

                             (ii)  fails to appear and report from day to day unless excused, or released from further attendance, by a member.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Summons to produce a book, document or thing

             (3)  A person is guilty of an offence if:

                     (a)  the person is given, as prescribed, a summons under this Act to produce a book, document or thing; and

                     (b)  the person fails to comply with the summons.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

             (4)  Subsection (3) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

62  Refusal to be sworn or to answer questions

Oath or affirmation

             (1)  A person is guilty of an offence if:

                     (a)  the person appears as a witness before the Tribunal; and

                     (b)  the person has been required under section 40 either to take an oath or make an affirmation; and

                     (c)  the person fails to comply with the requirement.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

             (2)  Subsection (1) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Questions

             (3)  A person is guilty of an offence if:

                     (a)  the person appears as a witness before the Tribunal; and

                     (b)  the member presiding at the proceeding has required the person to answer a question; and

                     (c)  the person fails to answer the question.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

             (4)  Subsection (3) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).

Books, documents or things

             (5)  A person is guilty of an offence if:

                     (a)  the person appears as a witness before the Tribunal; and

                     (b)  the person has been given, as prescribed, a summons under this Act to produce a book, document or thing; and

                     (c)  the person fails to produce the book, document or thing.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

             (6)  Subsection (5) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code).

62A  False or misleading evidence

                   A person is guilty of an offence if:

                     (a)  the person appears as a witness before the Tribunal; and

                     (b)  the person gives evidence; and

                     (c)  the person does so knowing that the evidence is false or misleading.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

62B  Extended operation of certain provisions

                   Sections 61, 62 and 62A apply in relation to a directions hearing or an alternative dispute resolution process under Division 3 as if it were a proceeding before the Tribunal.

63  Contempt of Tribunal

Insulting a member

             (1)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person’s conduct insults a member in, or in relation to, the exercise of his or her powers or functions as a member.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

Interrupting proceedings of the Tribunal

             (2)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person’s conduct interrupts the proceedings of the Tribunal.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

Creating a disturbance

             (3)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person’s conduct creates a disturbance in or near a place where the Tribunal is sitting.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

Taking part in creating or continuing a disturbance

             (4)  A person is guilty of an offence if:

                     (a)  the person takes part in creating or continuing a disturbance; and

                     (b)  the disturbance is in or near a place where the Tribunal is sitting.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

Contempt of Tribunal

             (5)  A person is guilty of an offence if:

                     (a)  the person engages in conduct; and

                     (b)  the person’s conduct would, if the Tribunal were a court of record, constitute a contempt of that court.

Penalty:  30 penalty units or imprisonment for 6 months, or both.

64  Registries

             (1)  The Governor‑General shall cause such Registries of the Tribunal to be established as he or she thinks fit, but so that at least one Registry shall be established in each State.

             (2)  The Governor‑General shall designate one of the Registries as the Principal Registry.

65  Officers of Tribunal

                   In relation to a proceeding, the officers of the Tribunal have such respective duties, powers and functions as are given by this Act or by the President.

66  Confidential information not to be disclosed

Protected information

             (1)  A person who is, or has been, a member or an officer of the Tribunal is not competent, and shall not be required, to give evidence to a court relating to a matter if:

                     (a)  the giving of the evidence would be contrary to an order of the Tribunal in force under subsection 35(2) or under a similar provision of an enactment other than this Act;

                     (b)  an application has been made to the Tribunal for an order under that subsection, or under such a similar provision, concerning the matter to which the evidence would relate and the Tribunal has not determined that application; or

                     (c)  a certificate under section 36 or 36B is in force certifying that the disclosure of information concerning the matter to which the evidence would relate would be contrary to the public interest for a reason referred to in subsection 36(1) or 36B(1) and, where the certificate does not specify a reason referred to in paragraph 36(1)(a) or (b), or 36B(1)(a), as the case may be, the Tribunal has not made information concerning that matter available to the parties to a proceeding before the Tribunal and, in the case of information contained in a document, has not permitted the parties to such a proceeding to inspect the document.

Protected documents

             (2)  A person who is, or has been, a member or an officer of the Tribunal shall not be required to produce in a court a document given to the Tribunal in connexion with a proceeding if:

                     (a)  the production of the document would be contrary to an order of the Tribunal in force under subsection 35(2) or under a similar provision of an enactment other than this Act;

                     (b)  an application has been made to the Tribunal for an order under that subsection, or under such a similar provision, in relation to the document and the Tribunal has not determined that application; or

                     (c)  a certificate under section 36 or 36B is in force certifying that the disclosure of matter contained in the document would be contrary to the public interest for a reason referred to in subsection 36(1) or 36B(1) and, where the certificate does not specify a reason referred to in paragraph 36(1)(a) or (b), or 36B(1)(a), as the case may be, the Tribunal has not permitted the parties to a proceeding before the Tribunal to inspect the document.

Tribunal proceedings

             (3)  A person who is, or has been, a member of the Tribunal shall not be required to give evidence to a court in relation to any proceedings before the Tribunal.

Definitions

             (4)  In this section:

court includes any tribunal, authority or person having power to require the production of documents or the answering of questions.

produce includes permit access to.

Note:          Section 81 of the Australian Security Intelligence Organisation Act 1979 contains additional provisions relating to secrecy that apply to members and officers of the Tribunal.

66A  Application of confidentiality provisions in other Acts

                   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, an officer of the Tribunal or a member of the staff of the Tribunal has acquired or acquires any such information in the course of his or her duties as such a member, officer or member of the staff;

that 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 duties under the enactment.

67  Fees for compliance with summons

             (1)  A person summoned under this Act is entitled to be paid fees, and allowances for expenses, fixed by or in accordance with the regulations in respect of his or her compliance with the summons.

             (2)  Subject to subsection (3), the fees and allowance shall be paid:

                     (a)  in a case where the person was summoned at the request of a party—by that party; and

                     (b)  in any other case—by the Commonwealth.

             (3)  The Tribunal may, in its discretion, order that the fees and allowances of a person referred to in paragraph (2)(a) shall be paid, in whole or in part, by the Commonwealth.

67A  Giving of notices

                   A notice that is required or permitted by this Act to be given to the person who made a decision may be given to:

                     (a)  the Secretary of the Department administered by the Minister who administers:

                              (i)  the enactment under which the decision was given; or

                             (ii)  if that enactment was made in pursuance of a power contained in another enactment—that other enactment; or

                     (b)  if a provision of the regulations or of any other enactment prescribes the holder of a particular office as a person to whom notices may be given under this Act in relation to a class of decisions in which that decision is included—the holder of that office.

68  Lodging of documents

             (1)  Where a document is required by this Act to be lodged with the Tribunal, the document shall be lodged at a registry of the Tribunal.

             (2)  Subject to such requirements (if any) as are prescribed, such documents may be lodged by means of electronic transfer.

68AA  How documents may be given to a person

Post

             (1)  For the purposes of this Act:

                     (a)  a document, statement, notice or other notification is taken to be given to a person if it is sent by post to whichever of the following addresses is applicable:

                              (i)  if the document, statement, notice or other notification relates to a proceeding and the person has provided an address to which documents in relation to the proceeding may be sent—that address;

                             (ii)  if subparagraph (i) does not apply and the person is not a company—the address of the place of residence or business of the person last known to the person posting the document, statement, notice or other notification;

                            (iii)  if subparagraph (i) does not apply and the person is a company—the address of the registered office of the company; and

                     (b)  a document, statement, notice or other notification so sent by post is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or other notification would have been delivered in the ordinary course of post.

Note:          See also the Electronic Transactions Act 1999.

Tribunal direction

             (2)  For the purposes of this Act:

                     (a)  if:

                              (i)  a person is not a company; and

                             (ii)  the person’s present or any previous place of residence or business is unknown;

                            a document, statement, notice or other notification is taken to be given to the person, if it is given in accordance with a direction given by the Tribunal; and

                     (b)  if, in accordance with that direction, the document, statement, notice or notification is sent by post—the document, statement, notice or notification is taken to have been given, unless the contrary is proved, at the time when the document, statement, notice or notification would have been delivered in the ordinary course of post.

Electronic communication

             (3)  For the purposes of this Act, if a document, statement, notice or other notification is given to a person by means of an electronic communication (within the meaning of the Electronic Transactions Act 1999), the document, statement, notice or other notification is taken to have been given on the day on which the electronic communication is dispatched.

             (4)  Subsection (3) of this section has effect despite subsections 14(3) and (4) of the Electronic Transactions Act 1999.

68A  Calculation of short periods of time

                   If the period of time for doing anything under this Act or any other Act, or in accordance with a direction of the Tribunal, in relation to a proceeding is a period of less than 7 days, any day on which the Registry of the Tribunal in which the relevant application was lodged is not open to the public is not to be counted in working out whether the period has ended.

69  Legal assistance

             (1)  A person who:

                     (a)  has made, or proposes to make, an application to the Tribunal for a review of a decision;

                     (b)  is a party to a proceeding before the Tribunal instituted by another person; or

                     (c)  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 in respect of the proceeding.

             (2)  Where an application is made by a person under subsection (1), the Attorney‑General may, if he or she is satisfied that it would involve hardship to that person to refuse the application and that, in all the circumstances, it is reasonable that the application should be granted, authorize the provision by the Commonwealth to that person, either unconditionally or subject to such conditions as the Attorney‑General determines, of such legal or financial assistance in relation to the proceeding as the Attorney‑General determines.

69A  Procedure for taxing costs

             (1)  If:

                     (a)  the Tribunal has, under this Act or any other Act, ordered a party to a proceeding to pay to another party to the proceeding reasonable costs incurred by the other party; and

                     (b)  the parties are unable to agree as to the amount of those costs;

the President may give such directions as he or she thinks appropriate for the costs:

                     (c)  to be taxed or settled by the Tribunal; or

                     (d)  to be taxed by the Registrar, a District Registrar or a Deputy Registrar.

             (2)  If the Registrar, a District Registrar or a Deputy Registrar has taxed under paragraph (1)(d) the amount to be paid to a party to a proceeding by another party to the proceeding, either of those parties may apply to the Tribunal for review of the amount so 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 matter to the Registrar, District Registrar or Deputy Registrar, as the case may be, to be taxed in accordance with the directions of the Tribunal.

             (4)  An amount that a party to a proceeding is required under an order made by the Tribunal to pay to another party to the proceeding is recoverable by the other party as a debt due to the other party by the first‑mentioned party.

69B  Costs in certain proceedings in Security Appeals Division

             (1)  If:

                     (a)  a person makes an application under section 54 of the Australian Security Intelligence Organisation Act 1979 to the Tribunal for a review of an adverse or qualified security assessment in respect of the person; and

                     (b)  the applicant was, in the opinion of the Tribunal, successful, or substantially successful, in the application for review; and

                     (c)  the Tribunal is satisfied that it is appropriate to do so in all the circumstances of the case;

the Tribunal may order that the costs reasonably incurred by the applicant in connection with the application, or any part of those costs that is determined by the Tribunal, be paid by the Commonwealth.

             (2)  For the purposes of section 69A, the Commonwealth is taken to be a party to the proceeding referred to in subsection (1) of this section.

70  Regulations

             (1)  The Governor‑General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  Without limiting the generality of subsection (1):

                     (a)  the regulations may make provision:

                              (i)  prescribing fees to be payable in respect of applications to the Tribunal; and

                            (ia)  prescribing fees to be payable in respect of the taxation of costs ordered by the Tribunal to be paid; and

                             (ii)  for or in relation to the refund, in whole or in part, of fees so paid where the proceeding terminates in a manner favourable to the applicant; and

                     (b)  regulations prescribing fees may:

                              (i)  prescribe fees in respect of a particular class or classes of applications only; and

                             (ii)  prescribe different fees in respect of different classes of applications.


Schedule 2 

Section 10B

OATH OR AFFIRMATION OF OFFICE

I,               , do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her Heirs and Successors according to law, that I will truly serve Her in the office of (insert name of office of member of Tribunal) and that I will faithfully and impartially perform the duties of that office. So Help Me God!

Or

I,               , do solemnly and sincerely promise and declare that (as above, omitting the words So Help Me God!”).


Notes to the Administrative Appeals Tribunal Act 1975

Note 1

The Administrative Appeals Tribunal Act 1975 as shown in this compilation comprises Act No. 91, 1975 amended as indicated in the Tables below.

The Administrative Appeals Tribunal Act 1975 was modified by the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (No. 75, 1988), the Social Security Act 1991 (No. 46, 1991), the Taxation Laws Amendment Act (No. 3) 1991 (No. 216, 1991) and the Migration Reform Act 1992 (No. 184, 1992). The modifications made by these Acts are not incorporated in this compilation.

The Administrative Appeals Tribunal Act 1975 was amended by the Administrative Appeals Tribunal (Social Services Act) Regulations. The amendments made by these Regulations were repealed by the Statute Law Revision Act 1981 (No. 61, 1981).

The Administrative Appeals Tribunal Act 1975 was amended by the Administrative Appeals Tribunal (Patent Attorneys) Regulations. The amendments are incorporated in this compilation.

For application, saving or transitional provisions made by the Corporations (Repeals, Consequentials and Transitionals) Act 2001, see Act No. 55, 2001.

All relevant information pertaining to application, saving or transitional provisions prior to 30 May 2000 is not included in this compilation. For subsequent information see Table A.

The Administrative Appeals Tribunal Act 1975 was modified by the A.C.T. Self‑Government (Consequential Provisions) Regulations (1989 No. 3 as amended) see Table B.

Act

Number
and year

Date
of Assent

Date of commencement

Application, saving or transitional provisions

Administrative Appeals Tribunal Act 1975

91, 1975

28 Aug 1975

1 July 1976 (see Gazette 1976, No. S94)

 

National Health Amendment Act 1976

60, 1976

5 June 1976

Ss. 1, 2, 28, 31, 41 and 42: Royal Assent
Remainder: 1 Oct 1976

Broadcasting and Television Amendment Act 1976

89, 1976

31 Aug 1976

Ss. 5 and 6: 1 Sept 1976
Ss. 4, 15 and 18:
1 July 1976
Remainder: Royal Assent

Administrative Changes (Consequential Provisions) Act 1976

91, 1976

20 Sept 1976

S. 3: (a)

S. 4

Federal Court of Australia (Consequential Provisions) Act 1976

157, 1976

9 Dec 1976

1 Feb 1977 (see s. 2 and Gazette 1977, No. S3)

S. 4

Patents Amendment Act 1976

162, 1976

9 Dec 1976

Ss. 3, 4, 6, 7 and 10: 1 Feb 1977 (see Gazette 1977, No. S3, p. 2)
Remainder: Royal Assent

S. 11(2)

Trade Marks Amendment Act 1976

163, 1976

9 Dec 1976

Ss. 3, 4, 7 and 10:
1 Feb 1977 (see Gazette 1977, No. S3, p. 3)
Remainder: Royal Assent

S. 12(2)

Marriage Amendment Act 1976

209, 1976

20 Dec 1976

Ss. 1, 2 and 30: Royal Assent
Ss. 14 and 31:
1 July 1976
Remainder: 20 June 1977 (see Gazette 1977, No. S93)

Agricultural Tractors Bounty Amendment Act 1977

30, 1977

16 May 1977

Ss. 3, 4, 6, 7 and 12: 1 Jan 1977
Remainder: Royal Assent

S. 13(2)

Income Tax Assessment Amendment Act 1977

57, 1977

16 June 1977

Ss. 16 and 17:
1 July 1976
Remainder: Royal Assent

Administrative Appeals Tribunal Amendment Act 1977

58, 1977

16 June 1977

16 June 1977

S. 29(2)

Remuneration and Allowances Amendment Act 1977

111, 1977

28 Oct 1977

Ss. 1, 2, 5, 9(2), 13, 16, 18 and 19(2): Royal Assent
Remainder: 1 June 1977

Administrative Appeals Tribunal Amendment Act 1978

65, 1978

22 June 1978

1 July 1978

S. 6

Bounty (Books) Amendment Act 1978

109, 1978

19 Sept 1978

19 Sept 1978

S. 9(2)

Jurisdiction of Courts (Miscellaneous Amendments) Act 1979

19, 1979

28 Mar 1979

Parts II–XVII
(ss. 3–123): 15 May 1979 (see Gazette 1979, No. S86)
Remainder: Royal Assent

Ss. 9 and 124

Administrative Appeals Tribunal Amendment Act 1979

143, 1979

27 Nov 1979

27 Nov 1979

Customs Amendment Act (No. 3) 1980

110, 1980

6 June 1980

Ss. 3(b), 4 and 5:
1 July 1980 (see Gazette 1980, No. S146)
Remainder: Royal Assent

S. 28(3)

Coal Excise Amendment Act 1981

19, 1981

25 Mar 1981

S. 4: 22 Apr 1981
Remainder: Royal Assent

S. 4(4)

Statute Law Revision Act 1981

61, 1981

12 June 1981

Ss. 3, 4 and 115: Royal Assent (b)

S. 4(2)

Statute Law (Miscellaneous Amendments) Act
(No. 1) 1982

26, 1982

7 May 1982

Part III (ss. 5–40):
4 June 1982 (c)

Ss. 7(2), 39 and 40

Statute Law (Miscellaneous Amendments) Act
(No. 2) 1982

80, 1982

22 Sept 1982

S. 280: Royal Assent (d)

Statute Law (Miscellaneous Provisions) Act (No. 2) 1983

91, 1983

22 Nov 1983

S. 3: Royal Assent (e)

Public Service Reform Act 1984

63, 1984

25 June 1984

S. 151(1): 1 July 1984 (see Gazette 1984, No. S245) (f)

S. 151(9)

Statute Law (Miscellaneous Provisions) Act (No. 1) 1984

72, 1984

25 June 1984

S. 3: 23 July 1984 (g)

S. 5(1)

Statute Law (Miscellaneous Provisions) Act (No. 1) 1985

65, 1985

5 June 1985

S. 3: 3 July 1985 (h)

Statute Law (Miscellaneous Provisions) Act (No. 2) 1985

193, 1985

16 Dec 1985

S. 3: Royal Assent (j)

S. 16

Taxation Boards of Review (Transfer of Jurisdiction) Act 1986

48, 1986

24 June 1986

S. 31, Parts VII and VIII
(ss. 45–56): 24 June 1986 (see s. 2(2))
Remainder: 1 July 1986

Statute Law (Miscellaneous Provisions) Act 1988

38, 1988

3 June 1988

S. 3: Royal Assent (k)

S. 5(1)

Civil Aviation Act 1988

63, 1988

15 June 1988

Part III
(ss. 17–32), s. 98, Parts IX and X (ss. 99–103): 1 July 1988 (see Gazette 1988, No. S189)
Remainder: Royal Assent

A.C.T. Self‑Government (Consequential Provisions) Act 1988

109, 1988

6 Dec 1988

S. 32: 11 May 1989 (see Gazette 1989, No. S164) (l)

Law and Justice Legislation Amendment Act 1988

120, 1988

14 Dec 1988

Part III (ss. 6–16): Royal Assent (m)

Ss. 8(2) and 9(2)

Courts and Tribunals Administration Amendment Act 1989

157, 1989

5 Dec 1989

Part 1 (ss. 1, 2) and Part 6 (ss. 17, 18): Royal Assent
Remainder: 1 Jan 1990 (see Gazette 1989, No. S398)

S. 22

Customs and Excise Legislation Amendment Act 1990

111, 1990

21 Dec 1990

S. 48: Royal Assent (n)

Industrial Relations Legislation Amendment Act 1991

122, 1991

27 June 1991

Ss. 4(1), 10(b) and 15–20: 1 Dec 1988
Ss. 28(b)–(e), 30 and 31: 10 Dec 1991 (see Gazette 1991, No. S332)
Remainder: Royal Assent

S. 31(2)

Law and Justice Legislation Amendment Act 1991

136, 1991

12 Sept 1991

Schedule: 10 Oct 1991 (o)

Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 1992

94, 1992

30 June 1992

S. 3: 1 July 1990
Remainder: Royal Assent

Law and Justice Legislation Amendment Act (No. 3) 1992

165, 1992

11 Dec 1992

S. 4 (Schedule [Part 1]): 11 June 1993 (p)

Administrative Appeals Tribunal Amendment Act 1993

31, 1993

16 June 1993

16 June 1993

S. 4(2)

Law and Justice Legislation Amendment Act 1994

84, 1994

23 June 1994

Part 3 (ss. 6–8):
3 July 1994 (see Gazette 1994, No. S242) (q)

Corporations Legislation Amendment Act 1994

104, 1994

5 July 1994

S. 8: Royal Assent (r)

Law and Justice Legislation Amendment Act (No. 1) 1995

175, 1995

16 Dec 1995

16 Dec 1995

Sch. 1 (item 44)

Australian Law Reform Commission (Repeal, Transitional and Miscellaneous) Act 1996

38, 1996

9 Oct 1996

Schedule 2 (items 1, 2): 11 Nov 1996 (see Gazette 1996, No. GN43) (s)

Statute Law Revision Act 1996

43, 1996

25 Oct 1996

Schedule 2
(items 6, 7): (t)

Schedule 4 (items 4, 5) and Schedule 5 (items 4–6): Royal Assent (t)

Workplace Relations and Other Legislation Amendment Act 1996

60, 1996

25 Nov 1996

Schedule 16
(item 1): 25 May 1997 (u)
Schedule 19 (item 2): Royal Assent (u)

S. 2(2) and (6) (am. by 77, 1996, Sch. 3 [items 1, 2])

as amended by

 

 

 

 

Workplace Relations and Other Legislation Amendment Act (No. 2) 1996

77, 1996

19 Dec 1996

Schedule 3
(items 1, 2): (v)

Law and Justice Legislation Amendment Act 1997

34, 1997

17 Apr 1997

Schedule 1 (items 1, 3–6): 1 July 1997 (see Gazette 1997, No. S244) (w)

Schedule 1 (item 2): Royal Assent (w)

Audit (Transitional and Miscellaneous) Amendment Act 1997

152, 1997

24 Oct 1997

Schedule 2 (items 139, 140): 1 Jan 1998 (see Gazette 1997, No. GN49) (x)

Law and Justice Legislation Amendment Act 1999

125, 1999

13 Oct 1999

Schedule 1: Royal Assent (y)

Public Employment (Consequential and Transitional) Amendment Act 1999

146, 1999

11 Nov 1999

Schedule 1 (items 41–47): 5 Dec 1999 (see Gazette 1999, No. S584) (z)

Corporate Law Economic Reform Program Act 1999

156, 1999

24 Nov 1999

Schedule 12 (items 1, 3): 24 Nov 2000 (za)

Australian Security Intelligence Organisation Legislation Amendment Act 1999

161, 1999

10 Dec 1999

Schedule 3 (items 1, 3–15): (zb)

Federal Magistrates (Consequential Amendments) Act 1999

194, 1999

23 Dec 1999

Schedule 3: 23 Dec 1999 (zc)

Jurisdiction of Courts Legislation Amendment Act 2000

57, 2000

30 May 2000

Schedule 1 (items 1, 2): 1 July 2000 (see Gazette 2000, No. GN25)

Sch. 1 (item 2) [see Table A]

Corporations (Repeals, Consequentials and Transitionals) Act 2001

55, 2001

28 June 2001

Ss. 4–14 and Schedule 3 (items 11, 12): 15 July 2001 (see Gazette 2001, No. S285) (zd)

Ss. 4–14 [see Note 1]

Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001

157, 2001

1 Oct 2001

Schedule 2 (items 1, 6(1)): Royal Assent (ze)

Sch. 2 (item 6(1)) [see Table A]

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001

159, 2001

1 Oct 2001

29 Oct 2001

Sch. 1 (item 97) [see Table A]

Superannuation Legislation (Commonwealth Employment) Repeal and Amendment Act (No. 1) 2003

64, 2003

30 June 2003

Schedule 5 (item 1): 1 July 2003

Taxation Laws Amendment Act (No. 6) 2003

67, 2003

30 June 2003

Schedule 9 (items 3, 4): 1 Sept 2003

Australian Passports (Transitionals and Consequentials) Act 2005

7, 2005

18 Feb 2005

Ss. 4–11 and Schedule 1: 1 July 2005 (see s. 2(1))
Remainder: Royal Assent

S. 7(2) [see Table A]

Administrative Appeals Tribunal Amendment Act 2005

38, 2005

1 Apr 2005

Schedule 1 (items 1–110): 16 May 2005 (see F2005L01029)
Schedule 1 (items 112–180, 182–236): 16 May 2005
Remainder: Royal Assent

Sch. 1 (items 11, 22, 28, 31, 34, 37, 41, 42, 45, 51, 54, 56, 59, 65, 67–69, 100, 111, 113–120, 125, 129, 138, 144, 152, 161, 175, 177, 181, 184, 197, 201, 202) [see Table A]

Australian Citizenship (Transitionals and Consequentials) Act 2007

21, 2007

15 Mar 2007

Schedules 1–3: 1 July 2007 (see s. 2(1) and F2007L01653)
Remainder: Royal Assent

Sch. 3 (items 14, 15) [see Table A]

Superannuation Legislation Amendment (Trustee Board and Other Measures) (Consequential Amendments) Act 2008

26, 2008

23 June 2008

Schedule 1 (items 1–8): Royal Assent

Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009

99, 2009

6 Oct 2009

Schedule 3: 7 Oct 2009


(a)     The Administrative Appeals Tribunal Act 1975 was amended by section 3 only of the Administrative Changes (Consequential Provisions) Act 1976, subsection 2(2) of which provides as follows:

                 (2)   The amendments of the Administrative Appeals Tribunal Act 1975 made by this Act shall be deemed to have come into operation on the date of commencement of that Act.

(b)    The Administrative Appeals Tribunal Act 1975 was amended by sections 3, 4 and 115 only of the Statute Law Revision Act 1981, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(c)     The Administrative Appeals Tribunal Act 1975 was amended by Part III (sections 5–40) only of the Statute Law (Miscellaneous Amendments) Act (No. 1) 1982, subsection 2(12) of which provides as follows:

               (12)   The remaining provisions of this Act shall come into operation on the twenty‑eighth day after the day on which this Act receives the Royal Assent.

(d)     The Administrative Appeals Tribunal Act 1975 was amended by section 280 only of the Statute Law (Miscellaneous Amendments) Act (No. 2) 1982, subsection 2(1) of which provides as follows:

                 (1)   Sections 1, 2, 166 and 195 and Parts III, VI, VII, XVI, XXXVI, XLIV, LI, LIII, LIV, LXI and LXXVII shall come into operation on the day on which this Act receives the Royal Assent.

(e)     The Administrative Appeals Tribunal Act 1975 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983, subsection 2(3) of which provides as follows:

                 (3)   The amendment of the Administrative Appeals Tribunal Act 1975 made by this Act shall come into operation on the day on which this Act receives the Royal Assent.

(f)      The Administrative Appeals Tribunal Act 1975 was amended by subsection 151(1) only of the Public Service Reform Act 1984, subsection 2(4) of which provides as follows:

                 (4)   The remaining provisions of this Act shall come into operation on such day as is, or on such respective days as are, fixed by Proclamation.

(g)     The Administrative Appeals Tribunal Act 1975 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1984, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.

(h)     The Administrative Appeals Tribunal Act 1975 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 1) 1985, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the twenty‑eighth day after the day on which it receives the Royal Assent.

(j)      The Administrative Appeals Tribunal Act 1975 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1985, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act shall come into operation on the day on which it receives the Royal Assent.

(k)     The Administrative Appeals Tribunal Act 1975 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act 1988, subsection 2(1) of which provides as follows:

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

(l)      The Administrative Appeals Tribunal Act 1975 was amended by section 32 only of the A.C.T. Self‑Government (Consequential Provisions) Act 1988, subsection 2(3) of which provides as follows:

                 (3)   The remaining provisions of this Act (including the amendments made by Schedule 5) commence on a day or days to be fixed by Proclamation.

(m)    The Administrative Appeals Tribunal Act 1975 was amended by Part III (sections 6–16) only of the Law and Justice Legislation Amendment Act 1988, subsection 2(1) of which provides as follows:

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

(n)     The Administrative Appeals Tribunal Act 1975 was amended by section 48 only of the Customs and Excise Legislation Amendment Act 1990, subsection 2(2) of which provides as follows:

                 (2)   Sections 1, 2 and 3, paragraphs 4(a), (b), (c), (d) and (g), sections 5, 11, 27 and 30, paragraphs 34(d) and (e), sections 35 and 36, section 37 so far as it relates to the amendments included in Schedule 2 that relate to section 209 of the Customs Act 1901, and sections 38, 39, 47, 48 and 49 commence on the day on which this Act receives the Royal Assent.

(o)     The Administrative Appeals Tribunal Act 1975 was amended by the Schedule only of the Law and Justice Legislation Amendment Act 1991, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent.

(p)     The Administrative Appeals Tribunal Act 1975 was amended by Schedule (Part 1) only of the Law and Justice Legislation Amendment Act (No. 3) 1992, subsections 2(2) and (3) of which provide as follows:

                 (2)   Subject to subsection (3), the amendment of the Administrative Appeals Tribunal Act 1975 made by this Act commences on a day to be fixed by Proclamation.

                 (3)   If the amendment mentioned in subsection (2) does not commence under that subsection within the period of 6 months commencing on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

(q)     The Administrative Appeals Tribunal Act 1975 was amended by Part 3 (sections 6–8) only of the Law and Justice Legislation Amendment Act 1994, subsection 2(2) of which provides as follows:

                 (2)   Part 3 commences on a day to be fixed by Proclamation.

(r)     The Administrative Appeals Tribunal Act 1975 was amended by section 8 only of the Corporations Legislation Amendment Act 1994, subsection 2(1) of which provides as follows:

                 (1)   Parts 1, 2 and 3 and Schedules 5 and 9 commence on the day on which this Act receives the Royal Assent.

(s)     The Administrative Appeals Tribunal Act 1975 was amended by Schedule 2 (items 1 and 2) only of the Australian Law Reform Commission (Repeal, Transitional and Miscellaneous) Act 1996, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the same day as the Australian Law Reform Commission Act 1996.

(t)      The Administrative Appeals Tribunal Act 1975 was amended by Schedule 2 (items 6 and 7), Schedule 4 (items 4 and 5) and Schedule 5 (items 4–6) only of the Statute Law Revision Act 1996, subsections 2(1) and (2) of which provide as follows:

                 (1)   Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

                 (2)   Each item in Schedule 2 commences or is taken to have commenced (as the case requires) at the time specified in the note at the end of the item.

         Items 6 and 7 are taken to have commenced immediately after the commencement of section 48 of the Customs and Excise Legislation Amendment Act 1990.

         Section 48 commenced on 21 December 1990.

(u)     The Administrative Appeals Tribunal Act 1975 was amended by Schedule 16 (item 1) and Schedule 19 (item 2) only of the Workplace Relations and Other Legislation Amendment Act 1996, subsections 2(1)–(3) of which provide as follows:

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

                 (2)   Subject to subsection (3), the items of the Schedules, other than Schedule 5, item 1 of Schedule 9, items 2 and 3 of Schedule 12, item 90 of Schedule 16 and the items of Schedule 19, commence on a day or days to be fixed by Proclamation.

                 (3)   If an item of a Schedule does not commence under subsection (2) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

(v)     The Workplace Relations and Other Legislation Amendment Act 1996 was amended by Schedule 3 (items 1 and 2) only of the Workplace Relations and Other Legislation Amendment Act (No. 2) 1996, subsection 2(4) of which provides as follows:

                 (4)   The items of Schedule 3 are taken to have commenced immediately after the Workplace Relations and Other Legislation Amendment Act 1996 received the Royal Assent.

         The Workplace Relations and Other Legislation Amendment Act 1996 received the Royal Assent on 25 November 1996.

(w)    The Administrative Appeals Tribunal Act 1975 was amended by Schedule 1 (items 1–6) only of the Law and Justice Legislation Amendment Act 1997, subsections 2(1) and (2) of which provide as follows:

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

                 (2)   Items 1, and 3 to 6, of Schedule 1, items 4, 5, and 9 to 16, of Schedule 14 and items 1 to 6, and 8 to 11, of Schedule 16 commence on a day or days to be fixed by Proclamation.

(x)     The Administrative Appeals Tribunal Act 1975 was amended by Schedule 2 (items 139 and 140) only of the Audit (Transitional and Miscellaneous) Amendment Act 1997, subsection 2(2) of which provides as follows:

                 (2)   Schedules 1, 2 and 4 commence on the same day as the Financial Management and Accountability Act 1997.

(y)     The Administrative Appeals Tribunal Act 1975 was amended by Schedule 1 only of the Law and Justice Legislation Amendment Act 1999, subsection 2(1) of which provides as follows:

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

(z)     The Administrative Appeals Tribunal Act 1975 was amended by Schedule 1 (items 41–47) only of the Public Employment (Consequential and Transitional) Amendment Act 1999, subsections 2(1) and (2) of which provide as follows:

                 (1)   In this Act, commencing time means the time when the Public Service Act 1999 commences.

                 (2)   Subject to this section, this Act commences at the commencing time.

(za)   The Administrative Appeals Tribunal Act 1975 was amended by Schedule 12 (items 1 and 3) only of the Corporate Law Economic Reform Program Act 1999, subsections 2(2)(c) and (4) of which provide as follows:

                 (2)   The following provisions commence on a day or days to be fixed by Proclamation:

                         (c)  the items in Schedules 10, 11 and 12.

                 (4)   If an item in Schedule 11 or 12 does not commence under subsection (2) within the period of 12 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

(zb)  The Administrative Appeals Tribunal Act 1975 was amended by Schedule 3 (items 1 and
3–15) only of the Australian Security Intelligence Organisation Legislation Amendment Act 1999, subsection 2(2) of which provides as follows:

                 (2)   Subject to subsections (3) to (6), Schedule 3 commences immediately after the commencement of the other Schedules to this Act.

         The other Schedules commenced on 10 December 1999.

(zc)   The Administrative Appeals Tribunal Act 1975 was amended by Schedule 3 only of the Federal Magistrates (Consequential Amendments) Act 1999, subsection 2(1) of which provides as follows:

                 (1)   Subject to this section, this Act commences on the commencement of the Federal Magistrates Act 1999.

(zd)   The Administrative Appeals Tribunal Act 1975 was amended by Schedule 3 (items 11 and 12) only of the Corporations (Repeals, Consequentials and Transitionals) Act 2001, subsection 2(3) of which provides as follows:

                 (3)   Subject to subsections (4) to (10), Schedule 3 commences, or is taken to have commenced, at the same time as the Corporations Act 2001.

(ze)   The Administrative Appeals Tribunal Act 1975 was amended by Schedule 2 (item 1) only of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001, subsection 2(1) of which provides as follows:

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


Table of Amendments

ad. = added or inserted     am. = amended     rep. = repealed     rs. = repealed and substituted

Provision affected

How affected

Part I

 

S. 2A...................................

ad. No. 38, 2005

S. 3 .....................................

am. No. 58, 1977; No. 65, 1978; No. 26, 1982; Nos. 109 and 120, 1988; No. 157, 1989; No. 31, 1993; No. 175, 1995; No. 34, 1997; No. 161, 1999; No. 38, 2005

Ss. 3A, 3B ..........................

ad. No. 109, 1988

 

rep. No. 38, 2005

S. 4 .....................................

am. No. 58, 1977

Part II

 

Division 1

 

Heading to Div. 1 of Part II...

ad. No. 38, 2005

S. 5 .....................................

am. No. 26, 1982; No. 175, 1995

Division 2

 

Heading to Div. 2 of Part II...

ad. No. 38, 2005

S. 6 .....................................

am. No. 58, 1977

 

rs. No. 26, 1982

Subhead. to s. 7(1B)...........

ad. No. 38, 2005

Subhead. to s. 7(2).............

ad. No. 38, 2005

S. 7 .....................................

am. No. 26, 1982; No. 175, 1995; No. 43, 1996; No. 38, 2005

S. 7A ..................................

ad. No. 111, 1977

 

am. No. 175, 1995

S. 8 .....................................

rs. No. 26, 1982; No. 120, 1988

 

am. No. 159, 2001; No. 38, 2005

S. 8A ..................................

ad. No. 84, 1994

 

am. No. 60, 1996

 

rep. No. 38, 2005

S. 9 .....................................

rs. No. 58, 1977; No. 26, 1982

 

am. No. 175, 1995; No. 43, 1996

Subhead. to s. 10(1)...........

ad. No. 38, 2005

Subhead. to s. 10(3)...........

ad. No. 38, 2005

Subhead. to s. 10(5)...........

ad. No. 38, 2005

Subhead. to s. 10(7)...........

ad. No. 38, 2005

Subheads. to s. 10(10), (11)..................................

ad. No. 38, 2005

S. 10 ...................................

rs. No. 58, 1977

 

am. No. 26, 1982; No. 175, 1995; No. 43, 1996; No. 38, 2005

S. 10A ................................

ad. No. 58, 1977

 

am. No. 26, 1982; No. 175, 1995

S. 10B ................................

ad. No. 26, 1982

 

am. No. 175, 1995

S. 11 ...................................

rs. No. 26, 1982

 

am. No. 175, 1995

S. 12 ...................................

rs. No. 122, 1991

 

am. No. 146, 1999

Subheads. to s. 13(1), (2)..

ad. No. 38, 2005

Subhead. to s. 13(7)...........

ad. No. 38, 2005

Subheads. to s. 13(9)–(11)

ad. No. 38, 2005

Subhead. to s. 13(12).........

ad. No. 38, 2005

 

rs. No. 26, 2008

Subhead. to s. 13(13).........

ad. No. 38, 2005

S. 13 ...................................

am. No. 58, 1977; No. 26, 1982; No. 94, 1992; No. 175, 1995; No. 38, 2005; No. 26, 2008

S. 14 ...................................

am. No. 175, 1995

S. 15....................................

am. No. 175, 1995

 

rs. No. 38, 2005

S. 16 ...................................

am. No. 58, 1977

 

rs. No. 72, 1984

 

am. No. 65, 1985; Nos. 109 and 120, 1988; No. 94, 1992; No. 43, 1996; No. 64, 2003

 

rep. No. 38, 2005

S. 17 ...................................

rs. No. 58, 1977

 

rep. No. 72, 1984

S. 18 ...................................

am. No. 58, 1977; No. 91, 1983

 

rep. No. 72, 1984

Part III

 

Division 1

 

Heading to Div. 1 of Part III..

ad. No. 38, 2005

Heading to s. 19..................

rs. No. 38, 2005

Subhead. to s. 19(2)...........

ad. No. 38, 2005

Subheads. to s. 19(3A), (3B).................................

ad. No. 38, 2005

Subheads. to s. 19(4)–(6)..

ad. No. 38, 2005

S. 19 ...................................

am. No. 48, 1986; No. 175, 1995; No. 161, 1999; No. 38, 2005

Division 2

 

Heading to Div. 2 of Part III..

ad. No. 38, 2005

S. 20 ...................................

am. No. 58, 1977; No. 31, 1993; No. 175, 1995; No. 38, 2005

S. 20A.................................

ad. No. 38, 2005

Division 3

 

Heading to Div. 3 of Part III..

ad. No. 38, 2005

S. 20B.................................

ad. No. 38, 2005

Subhead. to s. 21(1AAA)...

ad. No. 38, 2005

Subhead. to s. 21(1)...........

ad. No. 38, 2005

S. 21 ...................................

am. No. 58, 1977; No. 143, 1979; No. 26, 1982; No. 31, 1993; No. 175, 1995; No. 38, 2005

Heading to s. 21AA.............

am. No. 99, 2009

Subheads. to s. 21AA(1)–(6)....................................

ad. No. 38, 2005

S. 21AA .............................

ad. No. 175, 1995

 

am. No. 161, 1999; No. 7, 2005; No. 21, 2007; No. 99, 2009

S. 21AB...............................

ad. No. 99, 2009

Heading to s. 21A...............

am. No. 38, 2005

Subhead. to s. 21A(1AA)...

ad. No. 38, 2005

Subhead. to s. 21A(1)........

ad. No. 38, 2005

S. 21A ................................

ad. No. 58, 1977

 

am. No. 26, 1982; No. 31, 1993; No. 175, 1995; No. 34, 1997; No. 38, 2005

Note to s. 21A(4)................

ad. No. 38, 2005

Subhead. to s. 22(1AA)......

ad. No. 38, 2005

Subheads. to s. 22(1), (2)..

ad. No. 38, 2005

S. 22 ...................................

rs. No. 58, 1977

 

am. No. 26, 1982; No. 31, 1993; No. 175, 1995; No. 38, 2005

S. 23 ...................................

am. No. 58, 1977; No. 175, 1995

 

rs. No. 38, 2005

S. 23A ................................

ad. No. 175, 1995

 

rs. No. 38, 2005

S. 23B ................................

ad. No. 175, 1995

 

rs. No. 38, 2005

Ss. 23C–23F.......................

ad. No. 38, 2005

S. 24 ...................................

am. No. 58, 1977

 

rep. No. 38, 2005

Part IIIAA

 

Part IIIAA ............................

ad. No. 34, 1997

Ss. 24AA, 24AB.................

ad. No. 34, 1997

S. 24AC...............................

ad. No. 34, 1997

 

am. No. 67, 2003

S. 24AD...............................

ad. No. 34, 1997

Part IIIA

 

Part IIIA ...............................

ad. No. 157, 1989

Division 1

 

Ss. 24A, 24B ......................

ad. No. 157, 1989

Division 2

 

Ss. 24C–24E.......................

ad. No. 157, 1989

S. 24F..................................

ad. No. 157, 1989

 

am. No. 159, 2001

S. 24G ................................

ad. No. 157, 1989

 

rs. No. 122, 1991

 

am. No. 146, 1999

S. 24H ................................

ad. No. 157, 1989

 

rs. No. 38, 2005

S. 24J .................................

ad. No. 157, 1989

S. 24K ................................

ad. No. 157, 1989; No. 26, 2008

 

am. No. 94, 1992

Ss. 24L, 24M ......................

ad. No. 157, 1989

Division 3

 

Heading to s. 24N ...............

am. No. 175, 1995

S. 24N ................................

ad. No. 157, 1989

 

am. No. 175, 1995; No. 146, 1999

Heading to s. 24P ...............

am. No. 175, 1995

 

rs. No. 146, 1999

S. 24P .................................

ad. No. 157, 1989

 

am. No. 175, 1995

 

rs. No. 146, 1999

S. 24Q ................................

ad. No. 157, 1989

Division 4

 

S. 24R.................................

ad. No. 157, 1989

 

rs. No. 152, 1997

Ss. 24S, 24T.......................

ad. No. 157, 1989

 

rep. No. 152, 1997

S. 24U ................................

ad. No. 157, 1989

 

rep. No. 136, 1991

Ss. 24V, 24W .....................

ad. No. 157, 1989

Part IV

 

Division 1

 

Heading to Div. 1 of Part IV.

ad. No. 38, 2005

Subhead. to s. 25(1)...........

ad. No. 38, 2005

Subhead. to s. 25(3A)........

ad. No. 38, 2005

Subhead. to s. 25(4)...........

ad. No. 38, 2005

Subhead. to s. 25(5)...........

ad. No. 38, 2005

Subhead. to s. 25(7)...........

ad. No. 38, 2005

S. 25 ...................................

am. No. 58, 1977; No. 65, 1978; No. 26, 1982; No. 175, 1995; No. 43, 1996; No. 38, 2005

S. 26 ...................................

am. No. 58, 1977; No. 26, 1982

 

rep. No. 111, 1990

 

ad. No. 175, 1995

S. 27 ...................................

am. No. 58, 1977; No. 175, 1995; No. 161, 1999

Heading to s. 27AA.............

am. No. 161, 1999

S. 27AA .............................

ad. No. 175, 1995

 

am. No. 161, 1999

S. 27A ................................

ad. No. 165, 1992

 

am. No. 104, 1994; No. 156, 1999; No. 55, 2001

S. 27B ................................

ad. No. 165, 1992

Subhead. to s. 28(1)...........

ad. No. 38, 2005

Subhead. to s. 28(1AAA)...

ad. No. 38, 2005

Subhead. to s. 28(1AA)......

ad. No. 38, 2005

Subhead. to s. 28(1A)........

ad. No. 38, 2005

Subhead. to s. 28(2)...........

ad. No. 38, 2005

Subheads. to s. 28(4), (5)..

ad. No. 38, 2005

S. 28 ...................................

am. No. 58, 1977; No. 143, 1979; No. 26, 1982; No. 120, 1988; No. 175, 1995; No. 38, 2005

Subhead. to s. 29(1A)........

ad. No. 38, 2005

Subheads. to s. 29(2)–(4)..

ad. No. 38, 2005

Subhead. to s. 29(7)...........

ad. No. 38, 2005

Subhead. to s. 29(11).........

ad. No. 38, 2005

S. 29 ...................................

rs. No. 58, 1977

 

am. No. 26, 1982; No. 31, 1993; No. 175, 1995; No. 161, 1999; No. 38, 2005

Note to s. 29(1)...................

ad. No. 38, 2005

S. 29A ................................

ad. No. 31, 1993

S. 29B ................................

ad. No. 175, 1995

Division 2

 

Heading to Div. 2 of Part IV.

ad. No. 38, 2005

Subhead. to s. 30(1AA)......

ad. No. 38, 2005

Subhead. to s. 30(1)...........

ad. No. 38, 2005

Subhead. to s. 30(1A)........

ad. No. 38, 2005

Subhead. to s. 30(2)...........

ad. No. 38, 2005

S. 30 ...................................

am. No. 58, 1977; No. 26, 1982; No. 175, 1995

Note to s. 30(1)...................

ad. No. 38, 2005

S. 30A ................................

ad. No. 26, 1982

 

am. No. 175, 1995

S. 31 ...................................

am. No. 175, 1995

Subhead. to s. 33(2)...........

ad. No. 38, 2005

Subhead. to s. 33(2A)........

ad. No. 38, 2005

Subhead. to s. 33(3)...........

ad. No. 38, 2005

S. 33 ...................................

am. No. 26, 1982; No. 31, 1993; No. 38, 2005

Division 3

 

Heading to Div. 3 of Part IV. ................................... ad.

ad. No. 38, 2005

S. 34 ...................................

am. No. 58, 1977; No. 26, 1982; No. 31, 1993; No. 175, 1995

 

rs. No. 38, 2005

S. 34A ................................

ad. No. 31, 1993

 

am. No. 175, 1995; No. 34, 1997; No. 67, 2003

 

rs. No. 38, 2005

Ss. 34B–34H.......................

ad. No. 38, 2005

Division 4

 

Heading to Div. 4 of Part IV.

ad. No. 38, 2005

S. 34B.................................
Renumbered s. 34J.........

ad. No. 175, 1995
No. 38, 2005

Subhead. to s. 35(1AA)......

ad. No. 38, 2005

Subhead. to s. 35(1)...........

ad. No. 38, 2005

Subhead. to s. 35(2)...........

ad. No. 38, 2005

S. 35 ...................................

am. No. 58, 1977; No. 26, 1982; No. 31, 1993; No. 175, 1995

S. 35AA .............................

ad. No. 175, 1995

S. 35A ................................

ad. No. 31, 1993

 

am. No. 175, 1995; No. 38, 2005

Subhead. to s. 36(1AA)......

ad. No. 38, 2005

Subheads. to s. 36(1)–(3)..

ad. No. 38, 2005

Subhead. to s. 36(3A)........

ad. No. 38, 2005

Subhead. to s. 36(4)...........

ad. No. 38, 2005

S. 36 ...................................

am. No. 58, 1977; No. 26, 1982; No. 120, 1988; No. 175, 1995

Subhead. to s. 36A(1AA)...

ad. No. 38, 2005

Subheads. to s. 36A(1), (2)

ad. No. 38, 2005

Subhead. to s. 36A(2A)......

ad. No. 38, 2005

S. 36A ................................

ad. No. 58, 1977

 

am. No. 26, 1982; No. 120, 1988; No. 175, 1995; No. 194, 1999

Subhead. to s. 36B(1AA)...

ad. No. 38, 2005

Subheads. to s. 36B(1)–(5)

ad. No. 38, 2005

S. 36B ................................

ad. No. 120, 1988

 

am. No. 175, 1995

Subhead. to s. 36C(1AA)...

ad. No. 38, 2005

Subheads. to s. 36C(1)–(3)

ad. No. 38, 2005

S. 36C ................................

ad. No. 120, 1988

 

am. No. 175, 1995; No. 194, 1999

Subhead. to s. 36D(1AA)...

ad. No. 38, 2005

Subheads. to s. 36D(1)–(7)

ad. No. 38, 2005

S. 36D ................................

ad. No. 120, 1988

 

am. No. 157, 1989; No. 175, 1995

Subhead. to s. 37(1AAA)...

ad. No. 38, 2005

Subhead. to s. 37(1)...........

ad. No. 38, 2005

Subhead. to s. 37(1AB)......

ad. No. 38, 2005

Subhead. to s. 37(1AE)......

ad. No. 38, 2005

Subhead. to s. 37(1AF)......

ad. No. 38, 2005

Subheads. to s. 37(1A), (1B).................................

ad. No. 38, 2005

Subheads. to s. 37(2), (3)..

ad. No. 38, 2005

S. 37 ...................................

rs. No. 58, 1977

 

am. No. 143, 1979; No. 26, 1982; No. 175, 1995; No. 38, 2005

S. 38 ...................................

rs. No. 58, 1977

 

am. No. 175, 1995

S. 38A ................................

ad. No. 175, 1995

 

am. No. 161, 1999

S. 39 ...................................

am. No. 120, 1988; No. 175, 1995

Subheads. to s. 39A(1)–(6)

ad. No. 38, 2005

Subhead. to s. 39A(8)........

ad. No. 38, 2005

Subheads. to s. 39A(11),...
(12)

ad. No. 38, 2005

Subhead. to s. 39A(18)......

ad. No. 38, 2005

S. 39A ................................

ad. No. 175, 1995

 

am. No. 161, 1999

Subheads. to s. 39B(1)–(3)

ad. No. 38, 2005

Subheads. to s. 39B(5)–(11)..................................

ad. No. 38, 2005

S. 39B.................................

ad. No. 175, 1995

 

am. No. 161, 1999

Division 5

 

Heading to Div. 5 of Part IV.

ad. No. 38, 2005

Subhead. to s. 40(1A)........

ad. No. 38, 2005

Subhead. to s. 40(2)...........

ad. No. 38, 2005

Subheads. to s. 40(4), (5)..

ad. No. 38, 2005

Subhead. to s. 40(7)...........

ad. No. 38, 2005

S. 40 ...................................

am. No. 58, 1977; No. 31, 1993; No. 175, 1995; No. 38, 2005

S. 41 ...................................

rs. No. 58, 1977; No. 143, 1979

 

am. No. 26, 1982; No. 38, 2005

S. 42....................................

rs. No. 38, 2005

Subhead. to s. 42A(1)........

ad. No. 38, 2005

Subhead. to s. 42A(1A)......

ad. No. 38, 2005

Subhead. to s. 42A(2)........

ad. No. 38, 2005

Subheads. to s. 42A(4)–(8)

ad. No. 38, 2005

S. 42A ................................

ad. No. 58, 1977

 

am. No. 31, 1993; No. 38, 2005

S. 42B ................................

ad. No. 31, 1993

S. 42C.................................

ad. No. 31, 1993

 

am. No. 38, 2005

Subhead. to s. 42D(2).........

ad. No. 38, 2005

S. 42D ................................

ad. No. 175, 1995

 

am. No. 38, 2005

Note to s. 42D(2).................

ad. No. 38, 2005

Division 6

 

Heading to Div. 6 of Part IV.

ad. No. 38, 2005

Heading to s. 43..................

rs. No. 38, 2005

Subhead. to s. 43(1), (2)....

ad. No. 38, 2005

Subhead. to s. 43(3), (4)....

ad. No. 38, 2005

Subhead. to s. 43(5A)........

ad. No. 38, 2005

Subhead. to s. 43(6)...........

ad. No. 38, 2005

S. 43 ...................................

am. No. 157, 1976; No. 58, 1977; No. 65, 1978; No. 143, 1979; No. 26, 1982; No. 120, 1988; No. 175, 1995; No. 43, 1996; Nos. 161 and 194, 1999; No. 38, 2005

Division 7

 

Heading to Div. 7 of Part IV.

ad. No. 38, 2005

Subheads. to s. 43AAA(1),
(2)

ad. No. 38, 2005

Subhead. to s. 43AAA(4)...

ad. No. 38, 2005

Subheads. to s. 43AAA(6),
(7)

ad. No. 38, 2005

S. 43AAA ...........................

ad. No. 175, 1995

 

am. No. 161, 1999

Subhead. to s. 43AA(1)......

ad. No. 38, 2005

Subheads. to s. 43AA(3), (4)....................................

ad. No. 38, 2005

S. 43AA .............................

ad. No. 175, 1995

S. 43A ................................

ad. No. 58, 1977

 

am. No. 26, 1982; No. 194, 1999; No. 38, 2005

Part IVA

 

Heading to Part IVA.............

ad. No. 57, 2000

Heading to s. 43B................

am. No. 38, 2005

S. 43B.................................

ad. No. 57, 2000

 

am. No. 38, 2005

Subheads. to s. 44(1), (2)..

ad. No. 38, 2005

Subhead. to s. 44(2A)........

ad. No. 38, 2005

Subheads. to s. 44(3), (4)..

ad. No. 38, 2005

Subhead. to s. 44(6)...........

ad. No. 38, 2005

S. 44 ...................................

am. No. 157, 1976; No. 58, 1977; No. 143, 1979; No. 120, 1988; No. 31, 1993; No. 175, 1995; No. 60, 1996; No. 38, 2005

Subhead. to s. 44AA(1)......

ad. No. 38, 2005

Subhead. to s. 44AA(4)......

ad. No. 38, 2005

Subheads. to ......................
s. 44AA(7)–(10)

ad. No. 38, 2005

S. 44AA..............................

ad. No. 194, 1999

 

am. No. 157, 2001; No. 38, 2005

Subheads. to s. 44A(1), (2)

ad. No. 38, 2005

S. 44A ................................

ad. No. 143, 1979

 

am. No. 194, 1999

S. 45 ...................................

am. No. 157, 1976; No. 58, 1977; No. 34, 1997; No. 38, 2005

Heading to s. 46..................

am. No. 194, 1999

Subheads. to s. 46(1), (2)..

ad. No. 38, 2005

S. 46 ...................................

am. No. 157, 1976; No. 58, 1977; No. 26, 1982; No. 120, 1988; No. 175, 1995; No. 194, 1999

Part V

 

S. 49 ...................................

am. No. 58, 1977; No. 143, 1979; No. 65, 1985; No. 38, 1988; No. 38, 1996; No. 125, 1999

S. 50 ...................................

am. No. 143, 1979; No. 175, 1995

 

rs. No. 125, 1999

S. 51 ...................................

am. No. 125, 1999

Ss. 51A–51C ......................

ad. No. 125, 1999

Subheads. to s. 52(1), (2)..

ad. No. 38, 2005

S. 52 ...................................

am. No. 175, 1995; No. 125, 1999

S. 53....................................

am. No. 175, 1995; No. 43, 1996

S. 54 ...................................

am. No. 175, 1995

 

rs. No. 38, 2005

S. 55....................................

am. No. 175, 1995

Subhead. to s. 56(2)...........

ad. No. 38, 2005

Subheads. to s. 56(4), (5)..

ad. No. 38, 2005

Subheads. to s. 56(7)–(10)

ad. No. 38, 2005

S. 56 ...................................

am. No. 58, 1977; No. 143, 1979; No. 38, 1988; No. 175, 1995

S. 57....................................

am. No. 146, 1999

S. 58 ...................................

am. No. 58, 1977; No. 38, 2005

Part VI

 

S. 59A.................................

ad. No. 38, 2005

Heading to s. 60..................

am. No. 38, 2005

Subhead. to s. 60(1)...........

ad. No. 38, 2005

Subhead. to s. 60(1A)........

ad. No. 38, 2005

Subheads. to s. 60(2), (3)..

ad. No. 38, 2005

S. 60 ...................................

am. No. 31, 1993; No. 175, 1995; No. 38, 2005

S. 61....................................

am. No. 31, 1993; No. 175, 1995

 

rs. No. 38, 2005

S. 62 ...................................

am. No. 175, 1995

 

rs. No. 38, 2005

S. 62A ................................

ad. No. 26, 1982

 

am. No. 175, 1995

 

rs. No. 38, 2005

S. 62B ................................

ad. No. 31, 1993

 

am. No. 38, 2005

S. 63....................................

am. No. 175, 1995

 

rs. No. 38, 2005

S. 64....................................

am. No. 175, 1995; No. 38, 2005

S. 65 ...................................

am. No. 143, 1979

 

rs. No. 157, 1989; No. 175, 1995

Subheads. to s. 66(1)–(4)..

ad. No. 38, 2005

S. 66 ...................................

rs. No. 58, 1977

 

am. No. 193, 1985; No. 120, 1988; No. 175, 1995; No. 38, 2005

Note to s. 66(4)...................

ad. No. 175, 1995

 

am. No. 161, 1999

S. 66A ................................

ad. No. 175, 1995

Heading to s. 67..................

am. No. 38, 2005

S. 67 ...................................

am. No. 58, 1977; No. 175, 1995; No. 38, 2005

S. 67A ................................

ad. No. 58, 1977

 

am. No. 63, 1984; No. 38, 2005

S. 68 ...................................

am. No. 31, 1993; No. 175, 1995

S. 68AA..............................

ad. No. 38, 2005

S. 68A ................................

ad. No. 175, 1995

S. 69 ...................................

am. No. 58, 1977; No. 175, 1995

S. 69A.................................

ad. No. 175, 1995

S. 69B ................................

ad. No. 175, 1995

 

am. No. 161, 1999

S. 70 ...................................

am. No. 58, 1977; No. 175, 1995

Heading to Schedule ..........

rep. No. 26, 1982

Heading to Schedule 1 .......

ad. No. 26, 1982

 

rep. No. 111, 1990

Schedule ............................

am. Nos. 60, 89, 91, 162, 163 and 209, 1976; Nos. 30, 57 and 58, 1977; Nos. 19 and 143, 1979; No. 110, 1980; Statutory Rules 1980 No. 62 (as am. by 1980 No. 335); Nos. 19 and 61, 1981

Schedule 1 .........................

am. No. 80, 1982; Statutory Rules 1987 No. 49; No. 63, 1988

 

rep. No. 111, 1990

Schedule 2

 

Schedule 2 .........................

ad. No. 26, 1982

 

 


Table A

Application, saving or transitional provisions

Jurisdiction of Courts Legislation Amendment Act 2000 (No. 57, 2000)

Schedule 1

2  Effect of amended Act in relation to appellable State or Territory decisions

Definitions

(1)        In this item:

amended Act means the Administrative Appeals Tribunal Act 1975 as in force after the commencement.

appellable State decision means a decision of the Tribunal made in the exercise of power conferred on the Tribunal by or under a law of a State.

appellable Territory decision means a decision of the Tribunal made in the exercise of power conferred on the Tribunal by or under a law of the Australian Capital Territory or of the Northern Territory.

commencement means the commencement of the amendments of the Administrative Appeals Tribunal Act 1975 made by this Schedule.

State does not include the Northern Territory.

Tribunal has the same meaning as in the amended Act.

Appellable State decisions made before the commencement—situations in which period for appealing under amended Act is extended

(2)        In each of the following situations, the amended Act applies in relation to a person and an appellable State decision as if the 28 day period referred to in subsection 44(2A) of that Act began on the commencement:

                     (a)  the first situation—the decision was made before the commencement and that 28 day period would otherwise have begun during the period starting on 20 May 1999 and ending immediately before the commencement;

                     (b)  the second situation—before 17 June 1999, the Federal Court of Australia, purporting to Act under subsection 44(2A) of the Administrative Appeals Tribunal Act 1975 as purportedly applied as a law of a State, made an order allowing the person further time to make an appeal from that decision and that period of time had not expired by 17 June 1999;

                     (c)  the third situation—immediately before 17 June 1999, proceedings by way of an appeal by the person from the decision were before the Federal Court of Australia under section 44 of the Administrative Appeals Tribunal Act 1975 as purportedly applied as a law of a State.

Note:       The power under subsection 44(2A) of the amended Act to extend the time for appealing from a decision of the Tribunal is available even if the decision is an appellable State decision and the 28 day time limit that would otherwise apply expired before the commencement.

Appellable Territory decisions—ACT and NT laws no longer operate to apply sections 44 to 46 of the AAT Act

(3)        A law of the Australian Capital Territory or the Northern Territory that provides for the application of the Administrative Appeals Tribunal Act 1975 as a law of that Territory is of no effect after the commencement so far as that law purports to apply all or any of sections 44 to 46 of that Act in relation to an appellable Territory decision (whenever it was made).

Note:       Part IVA of the amended Act applies to these decisions.

Appellable Territory decisions—proceedings under sections 44 to 46 continue after the commencement under the amended Act

(4)        If, immediately before the commencement, proceedings in relation to an appellable Territory decision were before a court under any of sections 44 to 46 of the Administrative Appeals Tribunal Act 1975 as applying as a law of the Australian Capital Territory or the Northern Territory, then, from the commencement, those proceedings continue as if they had been commenced in that court under the amended Act.

Appellable Territory decisions—continued effect of orders made before the commencement under sections 44 to 46

(5)        An order made by a court before the commencement under any of sections 44 to 46 of the Administrative Appeals Tribunal Act 1975 as applying as a law of the Australian Capital Territory or the Northern Territory has effect, from the commencement, as if it had been made by that court under the amended Act.

 

Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (No. 157, 2001)

Schedule 2

6  Application of amendments

(1)        The amendment of the Administrative Appeals Tribunal Act 1975 made by item 1 applies in relation to an appeal instituted in the Federal Court of Australia on or after the commencement of this item.

 

Abolition of Compulsory Age Retirement (Statutory Officeholders) Act 2001 (No. 159, 2001)

Schedule 1

97  Application of amendments

The amendments made by this Schedule do not apply to an appointment if the term of the appointment began before the commencement of this item.

 

Australian Passports (Transitionals and Consequentials) Act 2005
(No. 7, 2005)

7  Old Act continues to apply in relation to pending proceedings and other matters

             (2)  If, on or after the commencement day, there are proceedings of the Administrative Appeals Tribunal to which paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 applies and which relate to the old Act, the amendment made by item 1 of Schedule 1 to this Act is, for the purposes of those proceedings, taken not to have been made.

 

Administrative Appeals Tribunal Amendment Act 2005 (No. 38, 2005)

Schedule 1

11  Transitional—subsections 3(4) and (5) of the Administrative Appeals Tribunal Act 1975

Despite the repeal of subsections 3(4) and (5) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after the commencement of this item, in relation to a document, statement, notice or other notification posted before the commencement of this item, as if:

                     (a)  that repeal had not happened; and

                     (b)  each reference in those subsections to furnished included a reference to given; and

                     (c)  each reference in those subsections to furnishing included a reference to giving; and

                     (d)  each reference in those subsections to service on included a reference to giving to; and

                     (e)  each reference in those subsections to served included a reference to given.

22  Transitional—section 8 of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a member if the member was covered by subsection 8(1) or (2) of the Administrative Appeals Tribunal Act 1975 immediately before the commencement of this item.

(2)        Despite the repeal of subsections 8(1) and (2) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after the commencement of this item, in relation to the member’s appointment, as if those repeals had not happened.

28  Transitional—subsection 10(2) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to an appointment if:

                     (a)  the appointment was made under subsection 10(2) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the appointment was in force immediately before the commencement of this item.

(2)        The appointment has effect, after the commencement of this item, as if it had been made under subsection 10(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

31  Transitional—subsection 13(8) of the Administrative Appeals Tribunal Act 1975

Despite the repeal of subsection 13(8) of the Administrative Appeals Tribunal Act 1975 by this Schedule, that subsection continues to apply after the commencement of this item, in relation to a person to whom the Judges’ Pensions Act 1968 applies, as if that repeal had not happened.

34  Transitional—section 16 of the Administrative Appeals Tribunal Act 1975

(1)        This item applies if a person was appointed as a presidential member (within the meaning of section 16 of the Administrative Appeals Tribunal Act 1975) before the commencement of this item.

(2)        Despite the repeal of section 16 of the Administrative Appeals Tribunal Act 1975 by this Schedule, that section continues to apply after the commencement of this item, in relation to the person, as if that repeal had not happened.

37  Transitional—subsection 19(3) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies if the assignment of a non‑presidential member to a particular Division or Divisions of the Tribunal was in force immediately before the commencement of this item.

(2)        The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Minister had, immediately after that commencement, assigned the member to that Division or those Divisions under subsection 19(3) of that Act.

(3)        To avoid doubt, the Minister is not bound by the member’s instrument of appointment in exercising a power conferred by subsection 19(3) of the Administrative Appeals Tribunal Act 1975.

41  Transitional—subsection 20(2) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a direction if:

                     (a)  the direction was given for the purposes of paragraph 20(1A)(d) or (e) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the direction was in force immediately before the commencement of this item.

(2)        The direction has effect, after the commencement of this item, as if it had been given under subsection 20(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

42  Transitional—subsection 20(4) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a direction if:

                     (a)  the direction was given for the purposes of paragraph 20(1A)(a) or (c) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the direction was in force immediately before the commencement of this item.

(2)        The direction has effect, after the commencement of this item, as if it had been given under subsection 20(4) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

45  Transitional—section 20B of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a direction if:

                     (a)  the direction was given for the purposes of paragraph 20(1A)(b) or subsection 20(2) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the direction was in force immediately before the commencement of this item.

(2)        The direction has effect, after the commencement of this item, as if it had been given under subsection 20B(1) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

51  Transitional—paragraph 21(1A)(a) of the Administrative Appeals Tribunal Act 1975

The amendment made by item 50 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.

54  Transitional—subsection 21(2) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member, for the purposes of the proceeding, in accordance with subsection 21(2) of the Administrative Appeals Tribunal Act 1975.

(2)        The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member, for the purposes of the proceeding, in accordance with a direction given under section 20B of that Act.

(3)        Subitem (2) does not prevent the reconstitution of the Tribunal.

56  Transitional—subsections 21(3) and (4) of the Administrative Appeals Tribunal Act 1975

The amendment made by item 55 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.

59  Transitional—subsection 21A(3) of the Administrative Appeals Tribunal Act 1975

The amendment of subsection 21A(3) of the Administrative Appeals Tribunal Act 1975 made by this Schedule does not affect the continuity of a direction that was given under that subsection before the commencement of this item.

65  Transitional—subsection 22(2) of the Administrative Appeals Tribunal Act 1975

The amendments of subsection 22(2) of the Administrative Appeals Tribunal Act 1975 made by this Schedule do not affect the continuity of a direction that was given under that subsection before the commencement of this item.

67  Transitional—paragraph 23(1)(a) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member or members, for the purposes of the proceeding, in accordance with paragraph 23(1)(a) of the Administrative Appeals Tribunal Act 1975.

(2)        The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member or those members, for the purposes of the proceeding, in accordance with a direction given under subsection 20B(1) of that Act.

(3)        Subitem (2) does not prevent the reconstitution of the Tribunal.

68  Transitional—section 23D of the Administrative Appeals Tribunal Act 1975

Section 23D of the Administrative Appeals Tribunal Act 1975 applies in relation to a reconstitution of the Tribunal before or after the commencement of this item.

69  Application of amendment—sections 23E and 23F of the Administrative Appeals Tribunal Act 1975

Sections 23E and 23F of the Administrative Appeals Tribunal Act 1975 do not apply to a taxing review proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the taxing review proceeding by one or more members.

100  Transitional—subsection 29(7) of the Administrative Appeals Tribunal Act 1975

The amendment of subsection 29(7) of the Administrative Appeals Tribunal Act 1975 made by this Schedule does not affect an extension of time granted under that subsection before the commencement of this item.

111  Transitional—subsection 33(4) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to the power to make an authorisation under subsection 33(4) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

(2)        For the purposes of section 4 of the Acts Interpretation Act 1901, that power is taken to be a power to make an instrument of an administrative character.

113  Transitional—paragraph 34A(1)(a) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a direction if:

                     (a)  the direction was given under subsection 34(1) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the direction was in force immediately before the commencement of this item.

(2)        The direction, except to the extent to which it identifies the person who is to preside over a conference, has effect, after the commencement of this item, as if it had been given under paragraph 34A(1)(a) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

114  Transitional—paragraph 34A(1)(b) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a direction if:

                     (a)  the direction was given under subsection 34A(1) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the direction was in force immediately before the commencement of this item.

(2)        The direction, except to the extent to which it identifies the person who is to be the mediator, has effect, after the commencement of this item, as if it had been given under paragraph 34A(1)(b) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

115  Transitional—paragraph 34B(3)(e) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a direction if:

                     (a)  the direction was given under subparagraph 34A(1A)(b)(ii) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the direction was in force immediately before the commencement of this item.

(2)        The direction, except to the extent to which it identifies the person who is to be the mediator, has effect, after the commencement of this item, as if it had been given under paragraph 34B(3)(e) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

116  Transitional—subsection 34A(2) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a direction if:

                     (a)  the direction was given under subsection 34(2) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the direction was in force immediately before the commencement of this item.

(2)        The direction has effect, after the commencement of this item, as if it had been given under subsection 34A(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

117  Transitional—Division 3 of Part IV of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to a conference or mediation if:

                     (a)  the conference or mediation had begun, before the commencement of this item, under section 34 or 34A of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the conference or mediation had not been completed before the commencement of this item.

(2)        The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if:

                     (a)  the conference or mediation were a conference or mediation under Division 3 of Part IV of that Act; and

                     (b)  in the case of a conference—the person presiding at the conference had been directed under subsection 34C(1) of that Act to conduct the conference; and

                     (c)  in the case of a mediation—the mediator had been directed under subsection 34C(1) of that Act to conduct the mediation;

and the conference or mediation is to be continued accordingly.

118  Transitional—paragraph 34D(1)(a) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to an agreement if:

                     (a)  the agreement was entered into before the commencement of this item; and

                     (b)  the agreement was an agreement to which paragraph 34A(4)(a) of the Administrative Appeals Tribunal Act 1975 applied; and

                     (c)  the Tribunal had not exercised its powers under subsection 34A(5) or (6) of that Act, in relation to the agreement, before the commencement of this item.

(2)        The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the agreement were an agreement to which paragraph 34D(1)(a) of that Act applies.

119  Transitional—subsections 34(3) and 34A(7) of the Administrative Appeals Tribunal Act 1975

Despite the repeal of subsections 34(3) and 34A(7) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after the commencement of this item, in relation to anything said, or any act done, before the commencement of this item, at a conference or mediation, as if those repeals had not happened.

120  Transitional—subsections 34(4) and 34A(8) of the Administrative Appeals Tribunal Act 1975

(1)        Despite the repeal of subsection 34(4) of the Administrative Appeals Tribunal Act 1975 by this Schedule, that subsection continues to apply after the commencement of this item, in relation to a conference that was completed before the commencement of this item, as if that repeal had not happened.

(2)        Despite the repeal of subsection 34A(8) of the Administrative Appeals Tribunal Act 1975 by this Schedule, that subsection continues to apply after the commencement of this item, in relation to a mediation that was completed before the commencement of this item, as if:

                     (a)  that repeal had not happened; and

                     (b)  the reference in that subsection to subsection 34A(5) or (6) of the Administrative Appeals Tribunal Act 1975 were a reference to subsection 34D(2) or (3) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

125  Transitional—paragraph 37(1)(b) of the Administrative Appeals Tribunal Act 1975

The amendment made by item 124 does not apply to a proceeding by way of an application to the Tribunal for review of a decision made by a person if, before the commencement of this item, the person had complied with paragraph 37(1)(b) of the Administrative Appeals Tribunal Act 1975 in relation to the proceeding.

129  Application—subsection 37(2) of the Administrative Appeals Tribunal Act 1975

The amendment made by item 128 does not apply to a notice under subsection 37(2) of the Administrative Appeals Tribunal Act 1975 if the notice was served before the commencement of this item.

138  Application of amendments—subsection 40(1E) of the Administrative Appeals Tribunal Act 1975

The amendments made by items 136 and 137 apply to a summons issued after the commencement of this item.

144  Transitional—subsections 41(2) and (3) of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to an order if:

                     (a)  the order was made by a presidential member under subsection 41(2) or (3) of the Administrative Appeals Tribunal Act 1975; and

                     (b)  the order was in force immediately before the commencement of this item.

(2)        The order has effect, after the commencement of this item, as if it had been made by the Tribunal under subsection 41(2) or (3), as the case may be, of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

152  Application—section 42 of the Administrative Appeals Tribunal Act 1975

The amendment made by item 151 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.

161  Application of amendment—subsections 42D(5), (6), (7) and (8) of the Administrative Appeals Tribunal Act 1975

Subsections 42D(5), (6), (7) and (8) of the Administrative Appeals Tribunal Act 1975 apply in relation to a decision remitted after the commencement of this item.

175  Application of amendments—sections 44 and 44AA of the Administrative Appeals Tribunal Act 1975

The amendments of sections 44 and 44AA of the Administrative Appeals Tribunal Act 1975 made by items 173 and 174 apply in relation to an appeal instituted after the commencement of this item.

177  Application of amendment—subsection 45(1) of the Administrative Appeals Tribunal Act 1975

The amendment of subsection 45(1) of the Administrative Appeals Tribunal Act 1975 made by this Schedule applies in relation to a question of law referred after the commencement of this item.

181  Transitional—section 59A of the Administrative Appeals Tribunal Act 1975

(1)        This item applies to the power to make an authorisation under section 59A of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.

(2)        For the purposes of section 4 of the Acts Interpretation Act 1901, that power is taken to be a power to make an instrument of an administrative character.

184  Transitional—subsection 60(1A) of the Administrative Appeals Tribunal Act 1975

Despite the amendments of subsection 60(1A) of the Administrative Appeals Tribunal Act 1975 made by this Schedule, that subsection continues to apply after the commencement of this item, in relation to anything done or omitted to be done by a mediator before the commencement of this item, as if those amendments had not been made.

197  Application—section 67 of the Administrative Appeals Tribunal Act 1975

The amendments of section 67 of the Administrative Appeals Tribunal Act 1975 made by this Schedule apply in relation to a summons issued after the commencement of this item.

201  Transitional—acts or things done on basis that provision of Administrative Appeals Tribunal Act 1975 referred to furnishing etc.

(1)        This item applies to an act or thing if:

                     (a)  the act or thing was done before the commencement of this item; and

                     (b)  the act or thing was done on the basis that a particular provision of the Administrative Appeals Tribunal Act 1975 referred to:

                              (i)  furnish; or

                             (ii)  furnished; or

                            (iii)  furnishing; or

                            (iv)  serve; or

                             (v)  served; or

                            (vi)  service.

(2)        After the commencement of this item, the act or thing is as valid as it would have been if it had been done on the basis that the provision had referred instead to whichever of the following expressions is appropriate:

                     (a)  give;

                     (b)  given;

                     (c)  giving.

(3)        This item is enacted for the avoidance of doubt.

202  Transitional regulations

The Governor‑General may make regulations in relation to transitional matters arising out of the amendments made by this Schedule.

 

Australian Citizenship (Transitionals and Consequentials) Act 2007
(No. 21, 2007)

Schedule 3

14  Definition

In this Part:

commencement day means the day on which sections 2A to 54 of the Australian Citizenship Act 2007 commence.

15  Transitional—Administrative Appeals Tribunal Act 1975

If, on or after the commencement day, there are proceedings of the Administrative Appeals Tribunal to which paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 applies and which relate to the old Act, the amendment made by item 1 of Schedule 1 is, for the purposes of those proceedings, taken not to have been made.


Table B

Modifications

A.C.T. Self‑Government (Consequential Provisions) Regulations

After section 36A:

Insert the following section:

36AA Interpretation of sections 36B, 36C and 36D

In sections 36B, 36C and 36D, unless the contrary intention appears:

Attorney‑General includes the Minister administering the Administrative Appeals Tribunal Act 1989 of the Australian Capital Territory.

Cabinet includes the Australian Capital Territory Executive.

State includes the Australian Capital Territory.