An Act to establish an Administrative Appeals
Tribunal
Part I—Preliminary
1 Short title
This Act may be cited
as the Administrative Appeals Tribunal Act 1975.
2 Commencement
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.
ASIO affiliate has the same meaning as in the Australian Security Intelligence
Organisation Act 1979.
ASIO employee has the same meaning as in the Australian Security Intelligence
Organisation Act 1979.
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 Norfolk Island means an authority, tribunal or other body, whether incorporated or
not, that is established by a Norfolk Island enactment.
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.
CSC
(short for Commonwealth Superannuation Corporation) has the same meaning as in
the Governance of Australian Government Superannuation Schemes Act 2011.
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, the Australian Capital Territory
or Norfolk Island; 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.
Note: See also subsection 25(8)
(Norfolk Island enactments).
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.
Norfolk Island enactment means:
(a) an enactment
(within the meaning of the Norfolk Island Act 1979); or
(b) an instrument
(including rules, regulations or by‑laws) made under such an enactment;
and includes a Norfolk Island enactment
as amended by another Norfolk Island enactment.
Norfolk Island Justice Minister means the Norfolk Island Minister who is responsible, or
principally responsible, for the administration of the Interpretation Act 1979 of Norfolk Island.
Norfolk Island Minister means a Minister of Norfolk Island.
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 II—Establishment of the Administrative Appeals Tribunal
Division 1—Establishment 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 2—Members 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 CSC 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 CSC
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 CSC
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 III—Organization of the Tribunal
Division 1—Divisions 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;
(baaa) National Disability
Insurance Scheme 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 ASIO employee
or ASIO affiliate.
National Disability Insurance Scheme
Division
(3C) A member must not be
assigned to the National Disability Insurance Scheme Division unless the
Minister has consulted with the Minister responsible for administering the National
Disability Insurance Scheme Act 2013 in relation to the assignment of the
member.
(3D) A non‑presidential member
must not be assigned to the National Disability Insurance Scheme Division
unless the Minister is satisfied that the non‑presidential member:
(a) has training,
knowledge or experience relating to disability; or
(b) has other relevant
knowledge or experience that will assist the non‑presidential member in
considering matters relating to the National Disability Insurance Scheme.
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 2—Arrangement 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 3—Constitution 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 ASIO employee or ASIO affiliate.
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 ASIO employee or ASIO affiliate.
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 Circuit
Court of Australia.
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 IIIAA—Small 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 IIIA—Management of the Tribunal
Division 1—Management 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 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 1A—Application of the finance law
24BA Application of the finance law
For the purposes of the
finance law (within the meaning of the Public Governance, Performance and
Accountability Act 2013):
(a) the following
group of persons is a listed entity:
(i) the
Registrar;
(ii) the
District Registrars, Conference Registrars, Deputy Registrars and staff of the
Tribunal referred to in subsection 24N(1); and
(b) the listed entity
is to be known as the Administrative Appeals Tribunal; and
(c) the Registrar is
the accountable authority of the listed entity; and
(d) the persons
referred to in paragraph (a) are officials of the listed entity; and
(e) the purposes of
the listed entity include the Registrar’s function to assist the President in
the management of the administrative affairs of the Tribunal (see section 24B).
Division 2—Appointment, 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.
(4) However, the Registrar
is not subject to direction by the President in relation to the Registrar’s
performance of functions, or exercise of powers, under the following Acts:
(a) the Public
Governance, Performance and Accountability Act 2013;
(b) the Public
Service Act 1999.
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 CSC 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 CSC
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 CSC
has given an approval and certificate under section 43 of that Act.
24L Disclosure of interests by Registrar
(1) 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.
(2) The Registrar must give
written notice to the President of all material personal interests that the Registrar has that
relate to the affairs of the Tribunal.
(3) Section 29 of the Public
Governance, Performance and Accountability Act 2013 (which deals with the
duty to disclose interests) does not apply to the Registrar.
24M Acting Registrar
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.
Note: For rules that apply to
acting appointments, see section 33A of the Acts Interpretation Act
1901.
Division 3—Other 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 4—Miscellaneous administrative matters
24R Annual report
(1) As soon as practicable
after 30 June in each year, the President must prepare a report of the
management of the administrative affairs of the Tribunal during the year.
Note: The annual report prepared by
the Registrar and given to the Minister under section 46 of the Public
Governance, Performance and Accountability Act 2013 may be included in the
report prepared under this section.
(2) A report prepared after
30 June in a year must be given to the Minister by 15 October of that
year.
(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 IV—Reviews by the Tribunal of decisions
Division 1—Applications 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.
(2) The regulations may
provide that applications may be made to the Tribunal for review of decisions
made in the exercise of powers conferred by a Norfolk Island enactment.
(3) Where an enactment makes
provision in accordance with subsection (1) or (2), 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.
(5A) For the purposes of
regulations that make provision in accordance with this section for the making
of applications to the Tribunal for review of decisions made in the exercise of
powers conferred by a Norfolk Island enactment, a failure by a person to do an
act or thing within the period prescribed by:
(a) that Norfolk
Island enactment; or
(b) another Norfolk
Island enactment having effect under that Norfolk Island enactment;
as the period within which that person is
required or permitted to do that act or thing is taken to constitute the making
of a decision by that person at the end 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.
Norfolk Island enactment
(8) If the regulations make
provision in accordance with subsection (2) for the making of applications
to the Tribunal for review of decisions made in the exercise of powers conferred
by a Norfolk Island enactment (the primary Norfolk Island enactment),
this Act, other than:
(a) the definition of
authority of the Commonwealth in subsection 3(1); and
(b) subsections (1),
(5) and (6) of this section; and
(c) subsection 21(1);
and
(d) subsection 27(1);
and
(e) paragraph 27A(2)(b);
and
(f) paragraph 33(1)(a);
and
(g) paragraph 43B(1)(a);
and
(h) section 59;
has effect as if:
(i) the primary
Norfolk Island enactment; and
(j) any other
Norfolk Island enactment, in so far as it relates to the primary Norfolk Island
enactment;
were an enactment (within the meaning of
this Act).
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) if regulations
made for the purposes of subsection 25(2) (which deals with Norfolk
Island) did not authorise the making of the application—the enactment that
authorised the making of the application expressly permits the decision to be
altered; or
(aa) if regulations
made for the purposes of subsection 25(2) authorised the making of the
application—the Norfolk Island enactment under which the decision was made
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 or Norfolk Island or an authority of Norfolk Island) whose
interests are affected by the decision.
Note: The enactment may be
regulations made for the purposes of subsection 25(2) (review of decisions
made in the exercise of powers conferred by a Norfolk Island enactment).
(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 (5A);
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,
by legislative instrument, determine 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.
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) or (5A)—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)
or (5A), 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) or (5A) 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.
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 2—Parties 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 3—Alternative dispute resolution processes
34 Scope of Division
This Division does not
apply to a proceeding in the Security Appeals Division to which section 39A
applies.
34A Referral of proceeding for
alternative dispute resolution process
(1) If an application is
made to the Tribunal for review of a decision, the President may:
(a) direct the
holding of a conference of the parties or their representatives in relation to
the proceeding, or any part of the proceeding or any matter arising out of the
proceeding; or
(b) direct that the
proceeding, or any part of the proceeding or any matter arising out of the
proceeding, be referred for a particular alternative dispute resolution process
(other than conferencing).
(2) The President may also
direct the holding of conferences of the parties or their representatives in
the case of applications made to the Tribunal for review of decisions of a kind
specified in the direction.
(3) The President may also
direct that proceedings be referred for a particular alternative dispute
resolution process (other than conferencing) in the case of applications made
to the Tribunal for review of decisions of a kind specified in the direction.
(4) A direction may be given
under a particular paragraph of subsection (1):
(a) whether or not a
direction has previously been given under the same or the other paragraph of
that subsection in relation to the proceeding; and
(b) whether or not a
direction under subsection (2) or (3) has applied.
(5) If
a direction under this section is applicable to:
(a) a
proceeding; or
(b) a part of a
proceeding; or
(c) a matter arising
out of a proceeding;
each party must act in good faith in
relation to the conduct of the alternative dispute resolution process
concerned.
34B Alternative dispute resolution
processes—proceeding before the Small Taxation Claims Tribunal
Scope
(1) This section applies to
a proceeding before the Small Taxation Claims Tribunal.
Statement about alternative dispute
resolution processes to be given to applicant
(2) The Registrar, a
District Registrar or a Deputy Registrar must give to the applicant:
(a) if the proceeding
relates to an application to which subparagraph 24AC(1)(a)(i) or paragraph 24AC(1)(aa)
or (b) applies—when the application is made; or
(b) if the proceeding
relates to an application to which subparagraph 24AC(1)(a)(ii)
applies—when the notification referred to in that subparagraph is given;
a statement setting out the procedures to
be followed by the Tribunal and the alternative dispute resolution processes
that are available under this Act.
Referral of matter for alternative
dispute resolution process
(3) If the Tribunal
considers at any time that it may assist in the resolution of the dispute
between the parties if:
(a) the proceeding;
or
(b) any part of the
proceeding; or
(c) any matter
arising out of the proceeding;
were dealt with by an alternative dispute
resolution process, the Tribunal must:
(d) direct the
holding of a conference of the parties or their representatives in relation to
the proceeding, part of the proceeding, or matter, as the case may be; or
(e) direct that the
proceeding, part of the proceeding, or matter, as the case may be, be referred
for a particular alternative dispute resolution process (other than
conferencing).
(4) If a direction under
this section is applicable to:
(a) a proceeding; or
(b) a part of a
proceeding; or
(c) a matter arising
out of a proceeding;
each party must act in good faith in
relation to the conduct of the alternative dispute resolution process
concerned.
34C Directions by President
(1) The President may give
directions about alternative dispute resolution processes.
(2) Directions under subsection (1)
may relate to:
(a) the procedure to
be followed in the conduct of an alternative dispute resolution process; and
(b) the person who is
to conduct an alternative dispute resolution process; and
(c) the procedure to
be followed when an alternative dispute resolution process ends.
(3) Subsection (2) does
not limit subsection (1).
(4) The President may at any
time vary or revoke a direction under subsection (1).
(5) A person is not entitled
to conduct an alternative dispute resolution process unless the person is:
(a) a member; or
(b) an officer of the
Tribunal; or
(c) a person engaged
under section 34H.
34D Agreement about the terms of a
decision etc.
(1) If:
(a) in the course of
an alternative dispute resolution process under this Division, agreement is
reached between the parties or their representatives as to the terms of a
decision of the Tribunal:
(i) in
the proceeding; or
(ii) in
relation to the part of the proceeding; or
(iii) in
relation to the matter arising out of the proceeding;
that would be
acceptable to the parties; and
(b) the terms of the
agreement are reduced to writing, signed by or on behalf of the parties and
lodged with the Tribunal; and
(c) 7 days pass after
lodgment, and none of the parties has notified the Tribunal in writing that he
or she wishes to withdraw from the agreement; and
(d) the
Tribunal is satisfied that a decision in the terms of the agreement or
consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to
be appropriate to do so, act in accordance with whichever of subsection (2)
or (3) is relevant in the particular case.
(2) If the agreement reached
is an agreement as to the terms of a decision of the Tribunal in the proceeding,
the Tribunal may, without holding a hearing of the proceeding, make a decision
in accordance with those terms.
(3) If the agreement relates
to:
(a) a part of the
proceeding; or
(b) a matter arising
out of the proceeding;
the Tribunal may, in its decision in the
proceeding, give effect to the terms of the agreement without dealing at the
hearing of the proceeding with the part of the proceeding or the matter arising
out of the proceeding, as the case may be, to which the agreement relates.
34E Evidence not admissible
(1) Evidence of anything
said, or any act done, at an alternative dispute resolution process under this Division
is not admissible:
(a) in any court; or
(b) in any
proceedings before a person authorised by a law of the Commonwealth or of a
State or Territory to hear evidence; or
(c) in any
proceedings before a person authorised by the consent of the parties to hear
evidence.
Exceptions
(2) Subsection (1) does
not apply so as to prevent the admission, at the hearing of a proceeding before
the Tribunal, of particular evidence if the parties agree to the evidence being
admissible at the hearing.
(3) Subsection (1) does
not apply so as to prevent the admission, at the hearing of a proceeding before
the Tribunal, of:
(a) a case appraisal
report prepared by a person conducting an alternative dispute resolution
process under this Division; or
(b) a neutral
evaluation report prepared by a person conducting an alternative dispute
resolution process under this Division;
unless a party to the proceeding notifies
the Tribunal before the hearing that he or she objects to the report being
admissible at the hearing.
34F Eligibility of person conducting
alternative dispute resolution process to sit as a member of the Tribunal
If:
(a) an alternative
dispute resolution process under this Division in relation to a proceeding is
conducted by a member of the Tribunal; and
(b) a
party to the proceeding notifies the Tribunal before the hearing that he or she
objects to that member participating in the hearing;
that member is not entitled to be a
member of the Tribunal as constituted for the purposes of the proceeding.
34G Participation by telephone etc.
The person conducting
an alternative dispute resolution process under this Division may allow a person
to participate by:
(a) telephone; or
(b) closed‑circuit
television; or
(c) any other means
of communication.
34H Engagement of persons to conduct
alternative dispute resolution processes
(1) The Registrar may, on
behalf of the Commonwealth, engage persons to conduct one or more kinds of
alternative dispute resolution processes under this Division.
(2) The Registrar must not
engage a person under subsection (1) unless the Registrar is satisfied,
having regard to the person’s qualifications and experience, that the person is
a suitable person to conduct the relevant kind or kinds of alternative dispute
resolution processes under this Division.
Division 4—Hearings 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.
Norfolk Island
(6) In this section:
Attorney‑General, in relation to Norfolk Island, means the Norfolk Island Justice
Minister.
Cabinet, in relation to Norfolk Island, means a body that:
(a) consists of
Norfolk Island Ministers; and
(b) corresponds to
the Cabinet.
State includes Norfolk Island.
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.
Norfolk Island
(4) In this section:
Attorney‑General, in relation to Norfolk Island, means the Norfolk Island Justice
Minister.
State includes Norfolk Island.
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.
Norfolk Island
(8) In this section:
Attorney‑General, in relation to Norfolk Island, means the Norfolk Island Justice
Minister.
State includes Norfolk Island.
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:
(a) an ASIO employee
or ASIO affiliate; or
(b) an officer or
employee 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 5—Procedural 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 6—Tribunal’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 Circuit Court of Australia 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 7—Miscellaneous
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 Circuit Court of Australia 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 IVA—Appeals 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.
Note: The enactment may be
regulations made for the purposes of subsection 25(2) (review of decisions
made in the exercise of powers conferred by a Norfolk Island enactment).
(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 Circuit 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 Circuit Court of Australia.
(2) However,
the Federal Court of Australia must not transfer an appeal to the Federal
Circuit Court of Australia 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 Circuit Court of Australia
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 Circuit Court of Australia
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 Circuit Court of Australia.
Matters to which the Federal Court
must have regard in transferring appeal
(7) In deciding whether to
transfer an appeal to the Federal Circuit Court of Australia 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
Circuit Court of Australia; and
(c) whether the
resources of the Federal Circuit Court of Australia are sufficient to hear and
determine the appeal; and
(d) the interests of
the administration of justice.
Jurisdiction
(8) The Federal Circuit
Court of Australia 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 Circuit Court of Australia 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 Circuit Court may make
findings of fact
(11) If an appeal under
subsection 44(1) is transferred to the Federal Circuit Court of Australia
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 Circuit
Court of Australia 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
Circuit Court of Australia 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 Circuit Court of Australia, the Federal Circuit Court of Australia
or a Judge of the Federal Circuit Court of Australia 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 Circuit Court of Australia
or Judge of the Federal Circuit Court of Australia 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
Circuit Court of Australia or a Judge of that Court;
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 and the Federal Circuit 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 Circuit Court of Australia—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 Circuit Court of Australia:
(i) the
Federal Court of Australia must cause the documents to be sent to the Federal
Circuit Court of Australia; and
(ii) at
the conclusion of the proceedings before the Federal Circuit Court of Australia
in relation to the appeal, the Federal Circuit Court of Australia 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 Circuit Court of Australia 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 Circuit Court of
Australia 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 Circuit Court of
Australia 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 V—Administrative 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
(ba) the President of
the Australian Human Rights Commission established by the Australian Human
Rights Commission Act 1986; and
(c) the President of
the Australian Law Reform Commission established by the Australian Law
Reform Commission Act 1996; and
(ca) the Australian
Information Commissioner holding office under the Australian Information
Commissioner Act 2010; 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),
(ba), (c) or (ca) 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, 5 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 VI—Miscellaneous
59 Advisory opinions
(1) 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.
(2) If the regulations so
provide, the Tribunal may give an advisory opinion on a matter or question:
(a) arising under a
Norfolk Island enactment; and
(b) referred to the
Tribunal in accordance with the regulations;
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.
enactment includes a Norfolk Island enactment.
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
(1) If:
(a) a provision of an
enactment (other than this Act) prohibits the disclosure, whether absolutely,
in certain circumstances only or subject to conditions, of information by
persons who:
(i) are
included in a particular class of persons; and
(ii) acquired
the information in the course of their duties under the enactment; and
(b) a person who is
or has been a member, 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.
(2) In this section:
enactment includes a Norfolk Island 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
(1) A notice that is
required or permitted by this Act to be given to the person who made a decision
(other than a decision under a Norfolk Island enactment) 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.
(2) A notice that is
required or permitted by this Act to be given to the person who made a decision
under a Norfolk Island enactment may be given to the Chief Executive Officer
(within the meaning of the Public Sector Management Act 2000 of Norfolk
Island).
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.
69C Dismissal of application for non‑payment
of application fee
The Tribunal may
dismiss an application to the Tribunal if:
(a) regulations under
section 70 prescribe a fee to be payable in respect of the application;
and
(b) the fee has not
been paid by the time worked out under regulations under section 70.
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.
(3) Without limiting the
generality of subsection (1), the regulations may make provision:
(a) prescribing fees
to be payable in respect of proceedings before the Tribunal; and
(b) for, or in
relation to, the waiver (in whole or in part) of such fees.