Administrative Appeals Tribunal Act 1975
PART I - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the
Administrative Appeals Tribunal Act 1975.
SECTION 2
2
COMMENCEMENT
This Act shall come into operation on a day to be fixed by Proclamation.
History
This Act was proclaimed to commence on 1 July 1976.
SECTION 2A
2A
TRIBUNAL'S OBJECTIVE
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)
is accessible; and
(b)
is fair, just, economical, informal and quick; and
(c)
is proportionate to the importance and complexity of the matter; and
(d)
promotes public trust and confidence in the decision-making of the Tribunal.
History
S 2A substituted by No 60 of 2015, s 3 and Sch 1 item 1, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 2A formerly read:
SECTION 2A TRIBUNAL'S OBJECTIVE
2A
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.
S 2A inserted by No 38 of 2005. No 38 of 2005, Sch 1[201]-[202], contained the following provisions:
Transitional - acts or things done on basis that provision of
Administrative Appeals Tribunal Act 1975
referred to furnishing etc.
201(1)
This item applies to an act or thing if:
(a)
the act or thing was done before the commencement of this item; and
(b)
the act or thing was done on the basis that a particular provision of the Administrative Appeals Tribunal Act 1975 referred to:
(i)
furnish; or
(ii)
furnished; or
(iii)
furnishing; or
(iv)
serve; or
(v)
served; or
(vi)
service.
201(2)
After the commencement of this item, the act or thing is as valid as it would have been if it had been done on the basis that the provision had referred instead to whichever of the following expressions is appropriate:
(a)
give;
(b)
given;
(c)
giving.
201(3)
This item is enacted for the avoidance of doubt.
Transitional regulations
202
The Governor-General may make regulations in relation to transitional matters arising out of the amendments made by this Schedule.
SECTION 3
INTERPRETATION
3(1)
In this Act, unless the contrary intention appears:
ACT enactment
(Repealed by No 38 of 2005)
History
Definition of "ACT enactment" inserted by No 109 of 1988.
adduce
includes give.
History
Definition of "adduce" inserted by No 175 of 1995.
agency party
means a party who is:
(a)
the Secretary of a Department; or
(b)
the Chief Executive Medicare; or
(c)
the Chief Executive Centrelink; or
(d)
the Child Support Registrar.
History
Definition of "agency party" inserted by No 60 of 2015, s 3 and Sch 1 item 2, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
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)
caseappraisal; 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.
History
Definition of "alternative dispute resolution processes" inserted by No 38 of 2005.
ASIO affiliate
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "ASIO affiliate" inserted by No 108 of 2014, s 3 and Sch 1 item 31, effective 30 October 2014.
ASIO employee
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "ASIO employee" inserted by No 108 of 2014, s 3 and Sch 1 item 31, effective 30 October 2014.
ASIO Minister
means the Minister administering the Australian Security Intelligence Organisation Act 1979.
History
Definition of "ASIO Minister" inserted by No 31 of 2018, s 3 and Sch 2 item 1, effective 11 May 2018. For transitional rules, see note under s 39B(2).
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.
History
Definition of "authorised member" inserted by No 38 of 2005.
authorised officer
means an officer of the Tribunal who has been authorised by the President under section 59B for the purposes of the provision in which the expression occurs.
History
Definition of "authorised officer" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
authority of Norfolk Island
means an authority, tribunal or other body, whether incorporated or not, that is established by a Norfolk Island enactment.
History
Definition of "authority of Norfolk Island" inserted by No 139 of 2010, s 3 and Sch 1 item 126, effective 1 January 2011.
authority of the Commonwealth
means an authority, tribunal or other body, whether incorporated or not, that is established by an enactment.
History
Definition of "authority of the Commonwealth" amended by No 58 of 1977.
Chief Executive Centrelink
has the same meaning as in the Human Services (Centrelink) Act 1997.
History
Definition of "Chief Executive Centrelink" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Chief Executive Medicare
has the same meaning as in the Human Services (Medicare) Act 1973.
History
Definition of "Chief Executive Medicare" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
child support first review
means a proceeding that is or would be a proceeding in the Social Services and Child Support Division on application for AAT first review within the meaning of the Child Support (Registration and Collection) Act 1988.
History
Definition of "child support first review" inserted by No 60 of 2015, s 3 and Sch 1 item 3, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Commonwealth agency
means a Minister or an authority of the Commonwealth.
History
Definition of "Commonwealth agency" inserted by No 175 of 1995.
Conference Registrar
(Repealed by No 60 of 2015)
History
Definition of "Conference Registrar" repealed by No 60 of 2015, s 3 and Sch 1 item 4, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
Conference Registrar
means a Conference Registrar of the Tribunal.
Definition of "Conference Registrar" inserted by No 175 of 1995.
CSC
(short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.
History
Definition of "CSC" inserted by No 58 of 2011, s 3 and Sch 1 item 1, effective 1 July 2011.
Deputy President
means a member appointed as a Deputy President of the Tribunal.
History
Definition of "Deputy President" substituted by No 60 of 2015, s 3 and Sch 1 item 5, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
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.
Definition of "Deputy President" substituted by No 26 of 1982.
Deputy Registrar
(Repealed by No 60 of 2015)
History
Definition of "Deputy Registrar" repealed by No 60 of 2015, s 3 and Sch 1 item 6(a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
Deputy Registrar
means a Deputy Registrar of the Tribunal.
District Registrar
(Repealed by No 60 of 2015)
History
Definition of "District Registrar" repealed by No 60 of 2015, s 3 and Sch 1 item 6(b), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
District Registrar
means a District Registrar of the Tribunal.
Definition of "District Registrar" inserted by No 175 of 1995.
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).
History
Definition of "enactment" amended by No 139 of 2010, s 3 and Sch 1 items 127 and 128, by substituting ", the Australian Capital Territory or Norfolk Island" for "or the Australian Capital Territory" in para (b) and inserting the note at the end, effective 1 January 2011.
Definition of "enactment" amended by No 38 of 2005, No 109 of 1988 and No 65 of 1978.
engage in conduct
has the same meaning as in the Criminal Code.
History
Definition of "engage in conduct" inserted by No 60 of 2015, s 3 and Sch 1 item 7, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
exempt security record
means:
(a)
a record of the Australian Security Intelligence Organisation; or
(b)
a record that is claimed to be an exempt record under the
Archives Act 1983 for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C) of that Act.
History
Definition of "exempt security record" amended by No 24 of 2024, s 3 and Sch 2 item 32, by inserting "or subsection 33(4A) or (4C)" in para (b), effective 22 May 2024.
Definition of "exempt security record" inserted by No 53 of 2023, s 3 and Sch 1 item 25, effective 12 August 2023.
full-time member
means a member who is appointed as a full-time member.
immigration advisory service
means a body that provides services in relation to the seeking by non-citizens (within the meaning of the Migration Act 1958) of permission to enter or remain in Australia.
History
Definition of "immigration advisory service" inserted by No 60 of 2015, s 3 and Sch 1 item 7, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
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.
History
Definition of "Judge" amended by No 26 of 1982.
member
means:
(a)
the President; or
(b)
a Deputy President; or
(c)
a senior member; or
(d)
any other member (of any level referred to in subsection
6(3)).
History
Definition of "member" substituted by No 60 of 2015, s 3 and Sch 1 item 8, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
member
means a presidential member, a senior member, or any other member of the Tribunal.
Definition of "member" substituted by No 26 of 1982.
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.
History
Definition of "Norfolk Island enactment" inserted by No 139 of 2010, s 3 and Sch 1 item 129, effective 1 January 2011.
Norfolk Island Justice Minister
(Repealed by No 59 of 2015)
History
Definition of "Norfolk Island Justice Minister" repealed by No 59 of 2015, s 3 and Sch 1 item 86, effective 18 June 2015. The definition formerly read:
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.
Definition of "Norfolk Island Justice Minister" inserted by No 139 of 2010, s 3 and Sch 1 item 130, effective 1 January 2011.
Norfolk Island Minister
(Repealed by No 59 of 2015)
History
Definition of "Norfolk Island Minister" repealed by No 59 of 2015, s 3 and Sch 1 item 87, effective 18 June 2015. The definition formerly read:
Norfolk Island Minister
means a Minister of Norfolk Island.
Definition of "Norfolk Island Minister" inserted by No 139 of 2010, s 3 and Sch 1 item 131, effective 1 January 2011.
officer of the Tribunal
means:
(a)
the Registrar; or
(b)
a person appointed as an officer of the Tribunal under section
24PA.
History
Definition of "officer of the Tribunal" substituted by No 60 of 2015, s 3 and Sch 1 item 9, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
officer of the Tribunal
means the Registrar, a District Registrar, a Conference Registrar or a Deputy Registrar.
Definition of "officer of the Tribunal" amended by No 175 of 1995 and No 157 of 1989.
part-time member
means a member who is appointed as a part-time member.
person who made the decision
has a meaning affected by:
(a)
if a review of the decision is or would be an AAT first review within the meaning of the
A New Tax System (Family Assistance) (Administration) Act 1999 - section
111B of that Act; and
(b)
if a review of the decision is or would be an AAT first review within the meaning of the
Paid Parental Leave Act 2010 - section 224A of that Act; and
(c)
if a review of the decision is or would be an AAT first review within the meaning of the
Social Security (Administration) Act 1999 - section 142A of that Act; and
(d)
if a review of the decision is or would be an AAT first review within the meaning of the
Student Assistance Act 1973 - section
311A of that Act.
History
Definition of "person who made the decision" inserted by No 60 of 2015, s 3 and Sch 1 item 9A, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
President
means the President of the Tribunal.
presidential member
means the President or aDeputy President.
History
Definition of "presidential member" substituted by No 60 of 2015, s 3 and Sch 1 item 10, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
presidential member
means the President, a member who is a Judge or a Deputy President.
Definition of "presidential member" substituted by No 26 of 1982.
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 taxing of costs; 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.
History
Definition of "proceeding" amended by No 60 of 2015, s 3 and Sch 1 item 11, by substituting para (c), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (c) formerly read:
(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
Definition of "proceeding" inserted by No 175 of 1995.
Registrar
means the Registrar of the Tribunal.
second review
: a review by the Tribunal of a decision is or would be a
second review
if another enactment:
(a)
authorises an application to be made for review of the decision; and
(b)
designates the review as an
AAT second review
.
History
Definition of "second review" inserted by No 60 of 2015, s 3 and Sch 1 item 12, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
security assessment or assessment
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
View history note
History
Definition of "security assessment" or "assessment" amended by No 161 of 1999 and inserted by No 175 of 1995.
security clearance decision
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "security clearance decision" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
security clearance suitability assessment
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.
History
Definition of "security clearance suitability assessment" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
security vetting agency
has the meaning given by section 82A of the Australian Security Intelligence Organisation Act 1979.
History
Definition of "security vetting agency" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
senior member
means a senior member of the Tribunal (of either level referred to in subsection 6(3)).
History
Definition of "senior member" substituted by No 60 of 2015, s 3 and Sch 1 item 13, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
senior member
means a senior member of the Tribunal.
Definition of "senior member" inserted by No 26 of 1982.
Senior non-presidential member
(Omitted by No 26 of 1982)
History
Definition of "Senior non-presidential member" inserted by No 58 of 1977.
Small Taxation Claims Tribunal
(Repealed by No 60 of 2015)
History
Definition of "Small Taxation Claims Tribunal" repealed by No 60 of 2015, s 3 and Sch 1 item 14, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. The definition formerly read:
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.
Definition of "Small Taxation Claims Tribunal" inserted by No 34 of 1997.
sponsoring agency
, in relation to a security clearance, has the meaning given by section 82A of the Australian Security Intelligence Organisation Act 1979.
History
Definition of "sponsoring agency" inserted by No 33 of 2023, s 3 and Sch 1 item 14, effective 1 July 2023.
State
includes the Northern Territory and the Australian Capital Territory.
History
Definition of "State" amended by No 38 of 2005, inserted by No 120 of 1988.
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.
History
Definition of "Tribunal" substituted by No 175 of 1995.
Territory
(Omitted by No 58 of 1977)
3(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(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.
History
S 3(3) amended by No 38 of 2005.
3(4)
(Repealed by No 38 of 2005)
History
No 38 of 2005, s 3 and Sch 1 item 11 contains the following transitional provision:
Transitional - subsections 3(4) and (5) of the
Administrative Appeals Tribunal Act 1975
11
Despite the repeal of subsections 3(4) and (5) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after 16 May 2005, in relation to a document, statement, notice or other notification posted before 16 May 2005, as if:
(a)
that repeal had not happened; and
(b)
each reference in those subsections to furnished included a reference to given; and
(c)
each reference in those subsections to furnishing included a reference to giving; and
(d)
each reference in those subsections to service on included a reference to giving to; and
(e)
each reference in those subsections to served included a reference to given.
S 3(4) formerly read:
3(4)
For the purposes of a reference in this Act to the furnishing to a person of a document or statement, or the service on or giving to a person of a notice or other notification:
(a)
a document or statement shall be deemed to be furnished to a person, or a notice or other notification shall be deemed to be served on or given to a person, as the case may be, if it is posted to the person by a pre-paid letter:
(i)
where the document, statement or notice or other notification relates to a proceeding and the person has furnished an address at which documents in relation to the proceeding may be served - to that address; or
(ii)
where subparagraph (i) does not apply:
(A)
in the case of a person not being a company - to the address of the place of residence or business of the person last known to the person posting the document, statement or notice or other notification; or
(B)
in the case of a company - to the address of the registered office of the company; and
(b)
a document or statement so posted shall be deemed to have been furnished, and a notice or other notification so posted shall be deemed to have been served or given, unless the contrary is proved, at the time when the document, statement or notice or other notification would have been delivered in the ordinary course of post.
S 3(4) substituted by No 26 of 1982 and inserted by No 58 of 1977.
3(5)
(Repealed by No 38 of 2005)
History
For transitional provision, see note under s 3(4).
S 3(5) inserted by No 31 of 1993.
3A
(Repealed) SECTION 3A CERTAIN LEGISLATION RELATING TO AUSTRALIAN CAPITAL TERRITORY NOT TO BE ENACTMENT
(Repealed by No 38 of 2005)
History
S 3A inserted by No 109 of 1988.
3B
(Repealed) SECTION 3B MEMBERS MAY BE APPOINTED TO BE MEMBERS OF ADMINISTRATIVE APPEALS TRIBUNAL FOR THE ACT
(Repealed by No 38 of 2005)
History
S 3B inserted by No 109 of 1988.
SECTION 4
4
EXTENSION TO EXTERNAL TERRITORIES
This Act extends to every external Territory.
History
S 4 amended by No 58 of 1977, Schedule.
PART II - ESTABLISHMENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL
Division 1 - Establishment of Tribunal
History
Div 1 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 5
5
ESTABLISHMENT OF TRIBUNAL
There is hereby established an Administrative Appeals Tribunal.
History
S 5 amended by No 60 of 2015, s 3 and Sch 1 item 15, by omitting ", which shall consist of a President, the other presidential members, the senior members, and the other members, appointed in accordance with this Act" after "Administrative Appeals Tribunal", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 5 amended by No 26 of 1982, s 7; amended by No 175 of 1995, s 3, Sch 2.
SECTION 5A
5A
MEMBERSHIP
The Tribunal consists of the following members:
(a)
the President;
(b)
Deputy Presidents;
(c)
senior members;
(d)
other members.
History
S 5A inserted by No 60 of 2015, s 3 and Sch 1 item 16, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 2 - Members of Tribunal
History
Div 2 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 6
APPOINTMENT OF MEMBERS OF TRIBUNAL
6(1)
The members shall be appointed by the Governor-General.
History
S 6(1) substituted by No 26 of 1982.
6(2)
A Judge who is to be appointed as a member of the Tribunal is to be appointed as the President or a Deputy President.
History
S 6(2) substituted by No 60 of 2015, s 3 and Sch 1 item 17, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 6(2) formerly read:
6(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.
S 6(2) substituted by No 26 of 1982.
6(3)
A person (other than a Judge) who is to be appointed as a member of the Tribunal is to be appointed as:
(a)
a Deputy President; or
(b)
a senior member (level 1); or
(c)
a senior member (level 2); or
(d)
a member (level 1); or
(e)
a member (level 2); or
(f)
a member (level 3).
History
S 6(3) substituted by No 60 of 2015, s 3 and Sch 1 item 17, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 6(3) formerly read:
6(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.
S 6(3) substituted by No 26 of 1982.
6(4)
A member (other than a Judge) shall be appointed either as a full-time member or as a part-time member.
History
S 6(4) inserted by No 58 of 1977; substituted by No 26 of 1982.
6(5)
(Omitted by No 26 of 1982)
SECTION 7
QUALIFICATIONS FOR APPOINTMENT
President
7(1)
A person must not be appointed as the President unless the person is a Judge of the Federal Court of Australia.
Deputy President
7(2)
A person must not be appointed as a Deputy President unless the person:
(a)
is a Judge of the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 1); or
(b)
is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or
(c)
in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a Deputy President.
History
S 7(2) amended by No 13 of 2021, s 3 and Sch 2 item 1, by substituting "Federal Circuit and Family Court of Australia (Division 1)" for "Family Court of Australia" in para (a), effective 1 September 2021.
Senior members and other members
7(3)
A person must not be appointed as a senior member or other member unless the person:
(a)
is enrolled as a legal practitioner (however described) of the High Court or the Supreme Court of a State or Territory and has been so enrolled for at least 5 years; or
(b)
in the opinion of the Governor-General, has special knowledge or skills relevant to the duties of a senior member or member.
History
S 7 substituted by No 60 of 2015, s 3 and Sch 1 item 18, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 7 formerly read:
SECTION 7 QUALIFICATIONS FOR APPOINTMENT
7(1)
President.
A person must not be appointed as the President unless he or she is a Judge of the Federal Court of Australia.
History
S 7(1) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 7(1) substituted by No 26 of 1982; amended by No 43 of 1996.
7(1AA)
Deputy President.
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.
History
S 7(1AA) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
7(1A)
(Repealed by No 38 of 2005)
History
S 7(1A) inserted by No 26 of 1982; amended by No 175 of 1995; No 43 of 1996; repealed by No 38 of 2005.
For transitional provisions see note under s 2A.
7(1B)
Senior member.
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.
History
S 7(1B) inserted by No 26 of 1982; amended by No 175 of 1995; amended by No 38 of 2005.
For transitional provisions see note under s 2A.
7(2)
Non-presidential member.
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.
History
S 7(2) amended by No 26 of 1982; by No 175 of 1995; No 38 of 2005.
For transitional provisions see note under s 2A.
SECTION 7A
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.
History
S 7A inserted by No 111 of 1977, s 5; amended by No 75 of 1995, Sch 3.
SECTION 8
TERM OF APPOINTMENT
8(1)
(Repealed by No 38 of 2005)
History
No 38 of 2005, Sch 1[22], provides:
Transitional - section 8 of the
Administrative Appeals Tribunal Act 1975
22(1)
This item applies to a member if the member was covered by subsection 8(1) or (2) of the Administrative Appeals Tribunal Act 1975 immediately before the commencement of this item.
22(2)
Despite the repeal of subsections 8(1) and (2) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after the commencement of this item, in relation to the member's appointment, as if those repeals had not happened.
For further transitional provisions see note under s 2A.
8(2)
(Repealed by No 38 of 2005)
History
S 8(2) repealed by No 38 of 2005. For transitional provisions see note under s 2A and s 8(1).
8(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.
8(4)
A member who is a Judge ceases to hold office as a member if he or she ceases to be a Judge.
History
S 8(4) amended by No 60 of 2015, s 3 and Sch 1 item 20, by omitting "presidential" before "member who", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 8(4) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Former s 8(4) repealed by No 159 of 2001.
8(5)
(Repealed by No 38 of 2005)
History
S 8(5) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
8(6)
(Repealed by No 159 of 2001)
8(7)
Subject to this Part, a member holds office on such terms and conditions as are determined by the Minister in writing.
History
S 8(7) amended by No 60 of 2015, s 3 and Sch 1 item 21, by substituting "determined by the Minister in writing" for "prescribed", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 8 inserted by No 26 of 1982; substituted by No 120 of 1988, effective 14 December 1988.
8A
(Repealed) SECTION 8A (SPECIAL PROVISIONS - PRESIDENT ON THE BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION)
(Repealed by No 38 of 2005)
History
S 8A repealed by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 9
REMUNERATION AND ALLOWANCES
9(1)
[Remuneration]
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.
History
S 9(1) substituted by No 58 of 1977; No 27 of 1982; amended by No 175 of 1995.
9(2)
[Allowances]
A member to whom subsection (1) applies shall be paid such allowances as are prescribed.
History
S 9(2) substituted by No 58 of 1977, s 5; No 26 of 1982.
9(3)
[Remuneration Tribunal Act]
Subsections (1) and (2) have effect subject to the Remuneration Tribunal Act 1973.
History
S 9(3) substituted by No 58 of 1977, s 5; No 26 of 1982; amended by No 43 of 1996.
9(4)-(6)
(Repealed by No 26 of 1982)
SECTION 10
ACTING APPOINTMENTS
Acting President
10(1)
The Minister may, by written instrument, appoint a Judge of the Federal Court of Australia to act as the President:
(a)
during a vacancy in the office of President (whether or not an appointment has previously been made to the office); or
(b)
during any period, or during all periods, when the President:
(i)
is absent from duty or from Australia; or
(ii)
is, for any reason, unable to perform the duties of office.
Note:
For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
History
S 10(1) substituted by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(1) formerly read:
10(1)
Acting President.
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.
S 10(1) substituted by No 58 of 1977; amended by No 26 of 1982.
Acting member (other than President)
10(2)
The Minister may, by written instrument, appoint a person to act as a member (other than the President) during any period, or during all periods, when:
(a)
a full-time member is absent from duty or from Australia; or
(b)
a part-time member is unavailable to perform the duties of office.
Subject to this section, a person so appointed must not continue to act in that appointment for more than 12 months.
History
S 10(2) amended by No 3 of 2022, s 3 and Sch 1 item 46, by inserting "Subject to this section, a person so appointed must not continue to act in that appointment for more than 12 months.", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
S 10(2) substituted by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(2) formerly read:
10(2)
Acting Deputy President.
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.
S 10(2) substituted by No 58 of 1977; No 26 of 1982; No 38 of 2005.
No 38 of 2005, Sch 1[28], provides:
Transitional - subsection 10(2) of the
Administrative Appeals Tribunal Act 1975
28(1)
This item applies to an appointment if:
(a)
the appointment was made under subsection 10(2) of the Administrative Appeals Tribunal Act 1975; and
(b)
the appointment was in force immediately before the commencement of this item.
28(2)
The appointment has effect, after the commencement of this item, as if it had been made under subsection 10(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
Provisions relevant to Act No 38 of 2005 (Sch 1[201] and [202]) are reproduced after s 2A of this Act.
10(2A)
The Minister may, by written instrument, appoint a person to act as a Deputy President during any period, or during all periods, when there are no Deputy Presidents. A person so appointed must not continue to act in that appointment for more than 12 months.
History
S 10(2A) inserted by No 3 of 2022, s 3 and Sch 1 item 47, effective 18 February 2022. No 3 of 2022, s 3 and Sch 1 item 60 contain the following application, saving and transitional provisions:
60 Application, saving and transitional provisions
(1)
The amendment of subsection 10(2) of the Administrative Appeals Tribunal Act 1975 made by this Part applies in relation to appointments made on or after the commencement of this item.
(2)
An assignment in force under subsection 17L(1) or (7) of the Administrative Appeals Tribunal Act 1975 immediately before the commencement of this item, being an assignment of a person to be the deputy head of a Division or of a person to act as the deputy head of a Division, continues in force on and after that commencement as if it were an assignment of the person to be a deputy head of that Division or of a person to act as a deputy head of that Division.
(3)
The amendments made by this Part do not affect the validity of:
(a)
a conferral of a function or power by the President, as mentioned in section 24P of the Administrative Appeals Tribunal Act 1975, before the commencement of this item; or
(b)
an appointment under section 24PA of the Administrative Appeals Tribunal Act 1975 made before the commencement of this item.
(4)
The amendments of sections 59A and 59B of the Administrative Appeals Tribunal Act 1975 made by this Part apply in relation to authorisations given on or after the commencement of this item.
Qualification for acting appointment
10(3)
A person must not be appointed to act in an office under subsection
(2) or
(2A) unless the person meets the requirements in section
7 for appointment to the office.
History
S 10(3) amended by No 3 of 2022, s 3 and Sch 1 item 48, by substituting "subsection (2) or (2A)" for "subsection (1) or (2)", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
S 10(3) substituted by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(3) formerly read:
10(3)
Acting non-presidential member.
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.
S 10(3) substituted by No 58 of 1977; amended by No 26 of 1982; by No 175 of 1995.
10(4)
(Repealed by No 60 of 2015)
History
S 10(4) repealed by No 60 of 2015, s 3 and Sch 1 item 22, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(4) formerly read:
10(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.
S 10(4) substituted by No 58 of 1977; amended by No 26 of 1982.
10(5)
Extension of acting appointment.
Where a person has been appointed under subsection (2), 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.
History
S 10(5) amended by No 60 of 2015, s 3 and Sch 1 item 23, by omitting "or (3)" after "subsection (2)", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 10(5) substituted by No 58 of 1977; amended by No 175 of 1995.
10(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.
History
S 10(6) substituted by No 58 of 1977; amended by No 175 of 1995; amended by No 43 of 1996.
Terms and conditions of acting appointment
10(7)
Subject to this Part, a person (other than a Judge) appointed to act in an office under subsection
(2) or
(2A) is to act on such terms and conditions as the Minister determines in writing.
History
S 10(7) amended by No 3 of 2022, s 3 and Sch 1 item 49, by inserting "or (2A)", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
S 10(7) substituted by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(7) formerly read:
10(7)
Terms and conditions.
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.
S 10(7) substituted by No 58 of 1977; amended by No 26 of 1982.
10(8)
(Repealed by No 26 of 1982)
10(9)
(Repealed by No 60 of 2015)
History
S 10(9) repealed by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(9) formerly read:
10(9)
Resignation.
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.
S 10(9) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 10(9) substituted by No 58 of 1977; amended by No 26 of 1982; by No 175 of 1995.
10(10)
(Repealed by No 60 of 2015)
History
S 10(10) repealed by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(10) formerly read:
10(10)
Exercise of powers.
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.
S 10(10) substituted by No 58 of 1977; No 26 of 1982.
10(11)
(Repealed by No 60 of 2015)
History
S 10(11) repealed by No 60 of 2015, s 3 and Sch 1 item 24, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10(11) formerly read:
10(11)
Validity of decisions etc.
Where the Tribunal isconstituted 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.
S 10(11) substituted by No 58 of 1977; amended by No 175 of 1995.
History
S 10(11) repealed by No 60 of 2015. For transitional and saving provisions, see note under the title of the Act.
S 10(11) substituted by No 58 of 1977; amended by No 175 of 1995.
SECTION 10A
DELEGATION
10A(1)
The Minister may, by signed instrument, delegate to the President any or all of the Minister's powers or functions under this Act.
10A(2)
The President may, by signed instrument, delegate to a member any or all of the President's powers or functions under this Act or another enactment.
10A(3)
The Registrar may, by signed instrument, delegate to an officer of the Tribunal or a member of the staff of the Tribunal any or all of the Registrar's powers or functions under this Act or another enactment.
10A(4)
In exercising powers or performing functions under a delegation, the delegate must comply with any directions of the delegator.
History
S 10A substituted by No 60 of 2015, s 3 and Sch 1 item 25, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 10A formerly read:
SECTION 10A DELEGATION
10A(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.
History
S 10A(1) inserted by No 58 of 1977, s 6; substituted by No 26 of 1982, s 13; amended by No 175 of 1995, Sch 3.
10A(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.
History
S 10A(2) inserted by No 58 of 1977, s 6.
10A(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.
History
S 10A(3) inserted by No 58 of 1977, s 6; substituted by No 26 of 1982, s 13.
10A(4)
A delegation under this section does not prevent the exercise of a power by the President.
History
S 10A(4) inserted by No 58 of 1977, s 6.
SECTION 10B
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.
History
S 10B inserted by No 26 of 1982, s 14; amended by No 175 of 1995, Sch 3.
SECTION 11
OUTSIDE EMPLOYMENT
11(1)
A full-time member must not engage in paid employment outside the duties of his or her office without the President's approval.
11(2)
A part-time member must not engage in any paid employment that, in the President's opinion, conflicts or may conflict with the proper performance of his or her duties.
11(3)
This section does not apply in relation to the holding by a member of an office or appointment in the Defence Force.
History
S 11 substituted by No 60 of 2015, s 3 and Sch 1 item 26, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 11 formerly read:
SECTION 11 OUTSIDE EMPLOYMENT
11(1)
Subject to sub-section (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.
History
S 11(1) substituted by No 26 of 1982, s 15; amended by No 175 of 1995, Sch 3.
11(2)
Sub-section (1) does not apply in relation to the holding by a full-time member of an office or appointment in the Defence Force.
History
S 11(2) substituted by No 26 of 1982, s 15.
SECTION 12
LEAVE OF ABSENCE
12(1)
A full-time member has the recreation leave entitlements that are determined by the Remuneration Tribunal.
12(2)
The President may grant a full-time member leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines.
12(3)
The President may grant leave of absence to a part-time member on the terms and conditions that the President determines.
History
S 12 substituted by No 60 of 2015, s 3 and Sch 1 item 26, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 12 formerly read:
SECTION 12 LEAVE OF ABSENCE
12(1)
A full-time member has such recreation leave entitlements as are determined by the Remuneration Tribunal.
History
S 12(1) substituted by No 122 of 1991, Sch; amended by No 146 of 1999, s 2, Sch 1[41].
12(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.
History
S 12(2) substituted by No 122 of 1991, Sch.
SECTION 13
TERMINATION OF APPOINTMENT (NOT JUDGES)
13(1)
The Governor-General may terminate the appointment of a member if an address praying for the termination, on one of the following grounds, is presented to the Governor-General by each House of the Parliament in the same session:
(a)
proved misbehaviour;
(b)
the member is unable to perform the duties of his or her office because of physical or mental incapacity.
13(2)
The Governor-General may terminate the appointment of a member if:
(a)
the member:
(i)
becomes bankrupt; or
(ii)
takes steps to take the benefit of any law for the relief of bankrupt or insolvent debts; or
(iii)
compounds with one or more of his or her creditors; or
(iv)
makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b)
the member is a full-time member and is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c)
the member is a part-time member and is unavailable, except on leave of absence, to perform the duties of his or her office for more than 3 months; or
(d)
the member contravenes section
11 (outside employment); or
(e)
the member fails, without reasonable excuse, to comply with section
14 (disclosure of interests).
13(3)
The Governor-General may terminate the appointment of a member assigned to the Migration and Refugee Division if the member has a direct or indirect pecuniary interest in an immigration advisory service.
13(4)
The appointment of a member may not be terminated other than in accordance with this section.
13(5)
This section does not apply in relation to a member who is a Judge.
History
S 13(9) amended by No 26 of 2008; substituted by No 58 of 1977 and No 94 of 1992.
SECTION 14
DISCLOSURE OF INTERESTS BY MEMBERS
14(1)
If a member who is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding before the Tribunal has a conflict of interest in relation to the proceeding, the member:
(a)
must disclose the matters giving rise to that conflict:
(i)
to the parties; and
(ii)
to the President (or, if the member is the President, the Minister); and
(b)
must not take part in the proceeding or exercise any powers in relation to the proceeding unless the parties and the President (or, if the member is the President, the Minister) consent.
14(2)
For the purposes of this section, a member has a conflict of interest in relation to a proceeding before the Tribunal if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member's functions in relation to the proceeding.
14(3)
If the President becomes aware that a member who is, or is to be, a member of the Tribunal as constituted for the purposes of a proceeding before the Tribunal has a conflict of interest in relation to the proceeding, the President:
(a)
may, if the President considers it appropriate, direct the member not to take part in the proceeding; and
(b)
if the President does not give such a direction - must ensure that the member discloses the matters giving rise to the conflict to the parties.
History
S 14 substituted by No 60 of 2015, s 3 and Sch 1 item 26, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 14 formerly read:
SECTION 14 DISCLOSURE OF INTERESTS BY MEMBERS
14(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.
History
S 14(1) amended by No 175 of 1995, Sch 3.
14(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.
History
S 14(2) amended by No 175 of 1995, Sch 3.
SECTION 15
RESIGNATION
15(1)
[Resignation in writing]
A member may resign his or her appointment by giving the Governor-General a written resignation.
15(2)
[When resignation takes effect]
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.
History
S 15 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 15 amended by No 175 of 1995.
16
(Repealed) SECTION 16 APPLICATION OF JUDGES' PENSIONS ACT
(Repealed by No 38 of 2005)
History
S 16 repealed by No 38 of 2005. No 38 of 2005, Sch 1[34], provides:
Transitional - section 16 of the
Administrative Appeals Tribunal Act 1975
34(1)
This item applies if a person was appointed as a presidential member (within the meaning of section 16 of the Administrative Appeals Tribunal Act 1975) before the commencement of this item.
34(2)
Despite the repeal of section 16 of the Administrative Appeals Tribunal Act 1975 by this Schedule, that section continues to apply after the commencement of this item, in relation to the person, as if that repeal had not happened.
For further transitional provisions see note under s 2A.
17-18
(Repealed) SECTIONS 17-18
(Repealed by No 72 of 1984)
PART III - ORGANISATION OF THE TRIBUNAL
History
History
S 21AB(3) amended by No 108 of 2014.
Pt III substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Pt III formerly read:
PART III - ORGANISATION OF THE TRIBUNAL
Division 1 - Divisions of the Tribunal
SECTION 19 DIVISIONS OF THE TRIBUNAL
19(1)
The Tribunal shall exercise powers conferred on it in Divisions of the Tribunal in accordance with this section.
19(2)
Divisions of the Tribunal.
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.
History
S 19(2) amended by No 44 of 2013, Sch 2 items 1-2, by inserting para (baaa) and omitting "and" in para (c), effective 29 May 2013.
S 19(2) amended by No 48 of 1986, s 4; by No 175 of 1995, s 3, Sch 1.
19(3)
Assignment of non-presidential member to Division or Divisions.
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.
History
S 19(3) substituted by No 38 of 2005. No 38 of 2005, Sch 1[37], provides:
Transitional - subsection 19(3) of the
Administrative Appeals Tribunal Act 1975
37(1)
This item applies if the assignment of a non-presidential member to aparticular Division or Divisions of the Tribunal was in force immediately before the commencement of this item.
37(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Minister had, immediately after that commencement, assigned the member to that Division or those Divisions under subsection 19(3) of that Act.
37(3)
To avoid doubt, the Minister is not bound by the member's instrument of appointment in exercising a power conferred by subsection 19(3) of the Administrative Appeals Tribunal Act 1975.
For further transitional provisions see note under s 2A.
19(3AA)
Before the Minister exercises a power conferred by subsection (3), the Minister must consult the President.
History
S 19(3AA) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
19(3A)
Taxation Appeals Division.
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.
History
S 19(3A) inserted by No 48 of 1986.
19(3B)
Security Appeals Division.
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.
History
S 19(3B) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting "an ASIO employee or ASIO affiliate" for "an officer, employee or agent of the Australian Security Intelligence Organisation", effective 30 October 2014.
S 19(3B) inserted by No 175 of 1995; amended by No 161 of 1999.
National Disability Insurance Scheme Division
19(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.
History
S 19(3C) inserted by No 44 of 2013, Sch 2 item 3, effective 29 May 2013.
19(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.
History
S 19(3D) inserted by No 44 of 2013, Sch 2 item 3, effective 29 May 2013.
19(4)
Exercise of powers.
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.
History
S 19(4) amended by No 175 of 1995.
19(5)
Validity.
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.
19(6)
Certain powers to be exercised in Security Appeals Division.
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.
History
S 19(6) inserted by No 175 of 1995; amended by No 161 of 1999.
Division 2 - Arrangement of business of the Tribunal
SECTION 20 ARRANGEMENT OF BUSINESS
20(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.
History
S 20(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 20(1) substituted by No 31 of 1993.
20(1A)
(Repealed by No 38 of 2005)
History
S 20(1A) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
20(2)
President may give directions.
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.
History
S 20(2) substituted by No 38 of 2005. No 38 of 2005, Sch 1[41], provides:
Transitional - subsection 20(2) of the
Administrative Appeals Tribunal Act 1975
41(1)
This item applies to a direction if:
(a)
the direction was given for the purposes of paragraph 20(1A)(d) or (e) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
41(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
S 20(2) substituted by No 58 of 1977; amended by No 175 of 1995; substituted by No 38 of 2005.
20(3)
Subsection (2) does not limit subsection (1).
History
S 20(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 20(3) substituted by No 58 of 1977.
20(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.
History
S 20(4) inserted by No 38 of 2005. No 38 of 2005, Sch 1[42], provides:
Transitional - subsection 20(4) of the
Administrative Appeals Tribunal Act 1975
42(1)
This item applies to a direction if:
(a)
the direction was given for the purposes of paragraph 20(1A)(a) or (c) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
42(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20(4) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
20(5)
Subsection (4) does not limit subsection (1).
History
S 20(5) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
20(6)
The President may at any time vary or revoke a direction under this section.
History
S 20(6) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 20A
SECTION 20A PLACES OF SITTING
20A
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.
History
S 20A inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Division 3 - Constitution and reconstitution of the Tribunal
SECTION 20B PRESIDENT MAY GIVE DIRECTIONS AS TO CONSTITUTION OF TRIBUNAL
20B(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.
20B(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.
History
S 20B inserted by No 38 of 2005. No 38 of 2005, Sch 1[45], provides:
Transitional - section 20B of the
Administrative Appeals Tribunal Act 1975
45(1)
This item applies to a direction if:
(a)
the direction was given for the purposes of paragraph 20(1A)(b) or subsection 20(2) of the Administrative Appeals Tribunal Act 1975; and
(b)
the direction was in force immediately before the commencement of this item.
45(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20B(1) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
SECTION 21 CONSTITUTION OF TRIBUNAL FOR EXERCISE OF POWERS
21(1AAA)
Scope.
This section does not apply in relation to proceedings in the Security Appeals Division.
History
S 21(1AAA) inserted by No 175 of 1995.
21(1)
Constitution of Tribunal.
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.
History
S 21(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 21(1) substituted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 175 of 1995.
21(1AA)
The Tribunal as constituted for the purposes of a proceeding must not include more than one presidential member who is a judge.
History
S 21(1AA) inserted by No 175 of 1995.
21(1AB)
(Repealed by No 38 of 2005)
History
S 21(1AB) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
21(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.
History
S 21(1A) amended by No 38 of 2005. No 38 of 2005, Sch 1[51], provides:
Transitional - paragraph 21(1A)(a) of the
Administrative Appeals Tribunal Act 1975
The amendment made by item 50 does not apply to a proceeding if, immediately before the commencment of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.
For further transitional provisions see note under s 2A.
S 21(1A) inserted by No 58 of 1977; amended by No 143 of 1979; No 26 of 1982; No 31 of 1993; No 175 of 1995.
21(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.
History
S 21(2) amended by No 38 of 2005. No 38 of 2005, Sch 1[54], provides:
Transitional - subsection 21(2) of the
Administrative Appeals Tribunal Act 1975
54(1)
This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member, for the purposes of the proceeding, in accordance with subsection 21(2) of the Administrative Appeals Tribunal Act 1975.
54(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member, for the purposes of the proceeding, in accordance with a direction given under section 20B of that Act.
54(3)
Subitem (2) does not prevent the reconstitution of the Tribunal.
For further transitional provisions see note under s 2A.
21(3)
(Repealed by No 38 of 2005)
History
S 21(3) repealed by No 38 of 2005. No 38 of 2005, Sch 1[56], provides:
Transitional - subsections 21(3) and (4) of the
Administrative Appeals Tribunal Act 1975
The amendment made by item 55 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.
For further transitional provisions see note under s 2A.
21(4)
(Repealed by No 38 of 2005)
History
S 21(4) repealed by No 38 of 2005. For transitional provisions see note under s 21(3). For further transitional provisions see note under s 2A.
SECTION 21AA CONSTITUTION OF SECURITY APPEALS DIVISION - GENERAL
21AA(1)
Scope.
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.
History
S 21AA(1) amended by No 99 of 2009, s 3 and Sch 3 item 1, by inserting "(other than a proceeding to which section 21AB applies)" after "Security Appeals Division", effective 7 October 2009.
S 21AA(1) inserted by No 175 of 1995; amended by No 161 of 1999.
21AA(2)
Constitution of Security Appeals Division.
Subject to this section, the Security Appeals Division is to be constitutedby a presidential member and 2 other members.
History
S 21AA(2) inserted by No 175 of 1995.
21AA(3)
When presidential member must not participate.
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.
History
S 21AA(3) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting "an ASIO employee or ASIO affiliate" for "an officer, employee or agent of the Australian Security Intelligence Organisation", effective 30 October 2014.
S 21AA(3) inserted by No 175 of 1995; amended by No 161 of 1999.
21AA(4)
Presidential member to preside.
The presidential member referred to in subsection (2) is to preside at a hearing of the proceeding.
History
S 21AA(4) inserted by No 175 of 1995.
21AA(5)
Qualifications.
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.
History
S 21AA(5) amended by No 21 of 2007, s 3 and Sch 1 item 1, by substituting "Australian Citizenship Act 2007" for "Australian Citizenship Act 1948", effective 1 July 2007.
No 21 of 2007, s 3 and Sch 3 item 15 contained the following transitional provision:
15 Transitional -
Administrative Appeals Tribunal Act 1975
If, on or after the commencement day, there are proceedings of the Administrative Appeals Tribunal to which paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 applies and which relate to the old Act, the amendment made by item 1 of Schedule 1 is, for the purposes of those proceedings, taken not to have been made.
S 21AA(5) amended by No 7 of 2005; inserted by No 175 of 1995.
21AA(6)
What happens if member ceases to be available.
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.
History
S 21AA(6) inserted by No 175 of 1995.
SECTION 21AB CONSTITUTION OF SECURITY APPEALS DIVISION - PROCEEDINGS TO REVIEW CERTAIN DECISIONS UNDER THE
ARCHIVES ACT 1983
Scope
21AB(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
21AB(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
21AB(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.
History
S 21AB(3) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting "an ASIO employee or ASIO affiliate" for "an officer, employee or agent of the Australian Security Intelligence Organisation", effective 30 October 2014.
Reconstitution of Division at the request of a party
21AB(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.
21AB(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.
21AB(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.
21AB(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.
21AB(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
21AB(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
21AB(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
21AB(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.
History
S 21AB inserted by No 99 of 2009, s 3 and Sch 3 item 2, effective 7 October 2009.
SECTION 21A RECONSTITUTION OF TRIBUNAL AT THE REQUEST OF A PARTY
21A(1AA)
Scope.
This section does not apply in relation to proceedings in the Security Appeals Division.
History
S 21A(1AA) inserted by No 175 of 1995.
21A(1)
Party may request reconstitution of Tribunal.
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.
History
S 21A(1) inserted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 34 of 1997.
21A(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.
History
S 21A(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 21A(2) inserted by No 58 of 1977; amended by No 175 of 1995.
21A(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).
History
S 21A(3) amended by No 38 of 2005. No 38 of 2005, Sch 1[59], provides:
Transitional - subsection 21A(3) of the
Administrative Appeals Tribunal Act 1975
The amendment of subsection 21A(3) of the Administrative Appeals Tribunal Act 1975 made by this Schedule does not affect the continuity of a direction that was given under that subsection before the commencement of this item.
For further transitional provisions see note under s 2A.
S 21A(3) inserted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 175 of 1995.
21A(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.
History
S 21A(4) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 21A(4) inserted by No 58 of 1977.
21A(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.
History
S 21A(5) inserted by No 58 of 1977.
21A(6)
(Repealed by No 38 of 2005)
History
S 21A(6) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
21A(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.
History
S 21A(7) inserted by No 58 of 1977.
SECTION 22 MEMBER PRESIDING
22(1AA)
Scope.
This section does not apply in relation to proceedings in the Security Appeals Division.
History
S 22(1AA) inserted by No 175 of 1995, s 3, Sch 1.
22(1)
Multiple member Tribunal - who is to preside.
At the hearing of a proceeding before the Tribunal atwhich 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.
History
S 22(1) substituted by No 58 of 1977, s 13; amended by No 26 of 1982, s 19; No 31 of 1993, s 7; No 175 of 1995, Sch 3.
22(2)
Reconstituted Tribunal - who is to preside.
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.
History
S 22(2) substituted by No 58 of 1977, s 13.
S 22(2) amended by No 38 of 2005. No 38 of 2005, Sch 1[65], provides:
Transitional - subsection 22(2) of the
Administrative Appeals Tribunal Act 1975
The amendments of subsection 22(2) of the Administrative Appeals Tribunal Act 1975 made by this Schedule do not affect the continuity of a direction that was given under that subsection before the commencement of this item.
For further transitional provisions see note under s 2A.
SECTION 23 RECONSTITUTION OF TRIBUNAL IF MEMBER IS UNAVAILABLE
23(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
History
S 23(1) substituted by No 38 of 2005. No 38 of 2005, Sch 1[67], provides:
Transitional - paragraph 23(1)(a) of the
Administrative Appeals Tribunal Act 1975
67(1)
This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member or members, for the purposes of the proceeding, in accordance with paragraph 23(1)(a) of the Administrative Appeals Tribunal Act 1975.
67(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member or those members, for the purposes of the proceeding, in accordance with a direction given under subsection 20B(1) of that Act.
67(3)
Subitem (2) does not prevent the reconstitution of the Tribunal.
For further transitional provisions see note under s 2A.
23(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.
23(3)
Single member Tribunal.
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.
23(4)
Multiple member Tribunal.
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.
23(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.
23(6)
Member who stops being a member and becomes a member again.
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.
23(7)
Reconstituted Tribunal must continue proceeding.
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.
23(8)
Limitations on President's powers to give directions.
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).
23(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.
23(10)
The President must not give a direction under subsection (3) or (4) unless the President has consulted the parties to the proceeding.
23(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.
23(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.
History
S 23 substituted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 23A RECONSTITUTION OF TRIBUNAL TO ACHIEVE EXPEDITIOUS AND EFFICIENT CONDUCT OF PROCEEDING
23A(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
23A(2)
Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding.
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.
23A(3)
Reconstituted Tribunal must continue proceeding.
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.
23A(4)
Limitations on President's power to give direction.
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).
23A(5)
The President must not give a direction under this section unless the President has consulted the parties to the proceeding.
History
S 23A substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 23A inserted by No 175 of 1995.
SECTION 23B
SECTION 23B MATTERS TO WHICH THE PRESIDENT MUST HAVE REGARD IN CONSTITUTING THE TRIBUNAL
23B
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.
History
S 23B substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 23B inserted by No 175 of 1995.
SECTION 23C LIMITATION ON COMPOSITION OF RECONSTITUTED TRIBUNAL
23C(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
23C(2)
Limitation on composition of reconstituted Tribunal.
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.
History
S 23C inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 23D TRIBUNAL MAY HAVE REGARD TO RECORD OF PREVIOUS PROCEEDING
23D(1)
Scope.
This section does not apply in relation to a proceeding in the Security Appeals Division.
23D(2)
Tribunal may have regard to record of previous proceeding.
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).
23D(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.
History
S 23D amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting "Federal Circuit Court of Australia" for "Federal Magistrates Court" wherever occurring, effective 12 April 2013.
S 23D inserted by No 38 of 2005. No 38 of 2005, Sch 1[68], provides:
Transitional - section 23D of the
Administrative Appeals Tribunal Act 1975
Section 23D of the Administrative Appeals Tribunal Act 1975 applies in relation to a reconstitution of the Tribunal before or after the commencement of this item.
For further transitional provisions see note under s 2A.
SECTION 23E CONSTITUTION OF TRIBUNAL FOR REVIEW OF AMOUNT TAXED - GENERAL RULE
23E(1)
Scope.
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
).
23E(2)
Constitution of Tribunal for taxing review proceeding.
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.
23E(3)
This section has effect subject to section 23F.
History
S 23E inserted by No 38 of 2005. No 38 of 2005, Sch 1[69], provides:
Application of amendment - sections 23E and 23F of the
Administrative Appeals Tribunal Act 1975
Sections 23E and 23F of the Administrative Appeals Tribunal Act 1975 do not apply to a taxing review proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the taxing review proceeding by one or more members.
For further transitional provisions see note under s 2A.
SECTION 23F CONSTITUTION OF TRIBUNAL FOR REVIEW OF AMOUNT TAXED - MEMBER UNAVAILABLE
23F(1)
Scope.
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.
23F(2)
Single member Tribunal.
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.
23F(3)
Multiple member Tribunal.
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.
23F(4)
Member who stops being a member and becomes a member again.
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.
23F(5)
Limitations on President's powers to give directions.
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.
23F(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.
History
S 23F inserted by No 38 of 2005. For application provision see note under s 23E. For transitional provisions see note under s 2A.
SECTION 24 (PLACES OF SITTING)
24
(Repealed by No 38 of 2005)
History
S 24 repealed by No 38 of 2005. For transitional provisions see note under s 2A.
Division 1 - Divisions of the Tribunal
History
Div 1 substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. For former wording, see note under Pt III heading.
Div 1 inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Subdivision A - Divisions of the Tribunal
History
Subdiv A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17A
17A
DIVISIONS OF THE TRIBUNAL
The Tribunal is to exercise powers conferred on it in the following Divisions:
(aa)
Freedom of Information Division;
(a)
General Division;
(b)
Migration and Refugee Division;
(c)
National Disability Insurance Scheme Division;
(d)
Security Division;
(e)
Social Services and Child Support Division;
(f)
Taxation and Commercial Division;
(g)
any other prescribed Division.
History
S 17A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17B
ALLOCATION OF BUSINESS TO DIVISIONS
17B(1)
The Tribunal's powers in relation to a proceeding before the Tribunal are to be exercised:
(a)
in the Division prescribed for such a proceeding; or
(b)
if no Division is prescribed for a proceeding - in the Division that the President directs.
17B(2)
Despite subsection
(1), the following powers of the Tribunal may be exercised by the Tribunal only in the Security Division:
(a)
the powers of review in respect of applications referred to in section 54 or 83B of the
Australian Security Intelligence Organisation Act 1979;
(b)
the power under the
Archives Act 1983 to review a decision of the Archives in respect of access to an exempt security record.
History
S 17B(2) amended by No 53 of 2023, s 3 and Sch 1 item 26, by substituting "an exempt security record" for "a record of the Australian Security Intelligence Organisation" in para (b), applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
S 17B(2) amended by No 33 of 2023, s 3 and Sch 1 item 15, by inserting "or 83B" in para (a), effective 1 July 2023.
History
S 17B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Subdivision B - Assignment of members to Divisions
History
Subdiv B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17C
ASSIGNMENT OF MEMBERS TO DIVISIONS
17C(1)
The Minister must assign a non-presidential member to one or more Divisions of the Tribunal.
17C(2)
Before the Minister does so, the Minister must consult the President in relation to the proposed assignment.
17C(3)
An assignment may only be varied with the consent of the member concerned.
17C(4)
A non-presidential member may exercise, or participate in the exercise of, powers of the Tribunal only in a Division to which the member is assigned.
17C(5)
If the assignment is made in writing, the assignment is not a legislative instrument.
History
S 17C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17CA
17CA
ASSIGNMENT TO FREEDOM OF INFORMATION DIVISION
The Minister must not assign a member to the Freedom of Information Division unless the Minister is satisfied that the member:
(a)
has training, knowledge or experience relating to the
Freedom of Information Act 1982; or
(b)
has other relevant knowledge or experience that will assist the member in considering matters relating to the operation of that Act.
History
S 17CA inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17D
17D
ASSIGNMENT TO MIGRATION AND REFUGEE DIVISION
Before assigning a member to the Migration and Refugee Division, the Minister must consult the Minister administering the
Migration Act 1958 in relation to the proposed assignment.
History
S 17D inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17E
ASSIGNMENT TO NATIONAL DISABILITY INSURANCE SCHEME DIVISION
17E(1)
Before assigning a member to the National Disability Insurance Scheme Division, the Minister must consult the Minister administering the
National Disability Insurance Scheme Act 2013 in relation to the proposed assignment.
17E(2)
The Minister must not assign a member to the National Disability Insurance Scheme Division unless the Minister is satisfied that the member:
(a)
has training, knowledge or experience relating to disability; or
(b)
has other relevant knowledge or experience that will assist the member in considering matters relating to the National Disability Insurance Scheme.
History
S 17E inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17F
17F
ASSIGNMENT TO SECURITY DIVISION
The Minister must not assign a member to the Security Division if the member is or has been:
(a)
the Director-General of Security; or
(b)
an ASIO employee or ASIO affiliate.
Note:
See also subsections 19E(3) and 19F(3).
History
S 17F inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17G
17G
ASSIGNMENT TO SOCIAL SERVICES AND CHILD SUPPORT DIVISION
Before assigning a member to the Social Services and Child Support Division, the Minister must consult the Minister administering the
Social Security (Administration) Act 1999 in relation to the proposed assignment.
History
S 17G inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17H
17H
ASSIGNMENT TO TAXATION AND COMMERCIAL DIVISION
Before assigning a member to the Taxation and Commercial Division, the Minister must consult the Treasurer in relation to the proposed assignment.
History
S 17H inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17J
17J
VALIDITY
Sections
17A to
17H do not affect the validity of any exercise of powers by the Tribunal.
History
S 17J inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Subdivision C - Division heads and Deputy Division heads
History
Subdiv C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17K
DIVISION HEADS
Assignment of Division heads
17K(1)
The Minister may assign a Deputy President to be the head of one or more Divisions of the Tribunal.
17K(2)
Before the Minister does so, the Minister must consult:
(a)
the President; and
(b)
any Minister required by sections
17D to
17H to be consulted in relation to the assignment of a member to the Division.
17K(3)
The Minister must not assign a person to be the head of a Division if the person could not be assigned to that Division because of section
17CA, subsection
17E(2) or section
17F.
17K(4)
If the assignment is made in writing, the assignment is not a legislative instrument.
17K(5)
An assignment under subsection (1):
(a)
must be for the duration, or the remaining duration, of the person's appointment as a Deputy President; and
(b)
may be varied, with the person's consent; and
(c)
cannot be revoked.
Function of Division heads
17K(6)
The head of a Division has the function of assisting the President in the performance of the President's functions by directing the business of the Tribunal in the Division.
Acting Division heads
17K(7)
The Minister may, by written instrument, assign a Deputy President or senior member to act as the head of a Division during any period, or during all periods, when the head of the Division is absent from duty or from Australia. Such an assignment is taken to be an appointment to act for the purposes of the
Acts Interpretation Act 1901.
History
S 17K inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 17L
DEPUTY DIVISION HEADS
Assignment of deputy Division heads
17L(1)
The Minister may assign a Deputy President or a senior member to be a deputy head of one or more Divisions of the Tribunal.
History
S 17L(1) amended by No 3 of 2022, s 3 and Sch 1 item 50, by substituting "be a" for "be the", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
17L(2)
Before the Minister does so, the Minister must consult:
(a)
the President; and
(b)
any Minister required by sections
17D to
17H to be consulted in relation to the assignment of a member to the Division.
17L(3)
The Minister must not assign a person to be a deputy head of a Division if the person could not be assigned to that Division because of section
17CA, subsection
17E(2) or section
17F.
History
S 17L(3) amended by No 3 of 2022, s 3 and Sch 1 item 50, by substituting "be a" for "be the", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
17L(4)
If the assignment is made in writing, the assignment is not a legislative instrument.
17L(5)
An assignment under subsection
(1):
(a)
must be for the duration, or the remaining duration, of the person's appointment as a Deputy President or senior member; and
(b)
may be varied, with the person's consent; and
(c)
cannot be revoked.
Function of deputy Division heads
17L(6)
A deputy head of a Division has the function of assisting the head of the Division in the performance of the head of the Division's functions.
History
S 17L(6) amended by No 3 of 2022, s 3 and Sch 1 item 51, by substituting "A" for "The", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
Acting deputy Division heads
17L(7)
The Minister may, by written instrument, assign a member to act as a deputy head of a Division during any period, or during all periods, when a deputy head of the Division is absent from duty or from Australia or when there is no deputy head of the Division. Such an assignment is taken to be an appointment to act for the purposes of the
Acts Interpretation Act 1901.
History
S 17L(7) amended by No 3 of 2022, s 3 and Sch 1 items 52-54, by substituting "as a" for "as the", "when a" for "when the" and inserting "or when there is no deputy head of the Division", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
History
S 17L inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 2 - Arrangement of business of Tribunal
History
Div 2 substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. For former wording, see note under Pt III heading.
Div 2 inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 18A
18A
ARRANGEMENT OF BUSINESS
Subject to this Act and the regulations, the President is responsible for ensuring:
(a)
the expeditious and efficient discharge of the business of the Tribunal; and
(b)
that the Tribunal pursues the objective in section
2A.
History
S 18A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 18B
PRESIDENT'S DIRECTIONS - ARRANGEMENT OF BUSINESS
18B(1)
The President may give written directions in relation to any or all of the following:
(a)
the operations of the Tribunal;
(b)
the procedure of the Tribunal;
(c)
the conduct of reviews by the Tribunal;
(d)
the arrangement of the business of the Tribunal;
(e)
the places at which the Tribunal may sit.
18B(1A)
Before the President does so, the President must consult the head of any Division to which the direction would apply.
18B(2)
A failure by the Tribunal to comply with a direction does not invalidate anything done by the Tribunal.
18B(3)
If the Tribunal deals with a proceeding in a way that complies with the directions given under this section, the Tribunal is not required to take any other action in dealing with the proceeding.
18B(4)
Without limiting subsection (1), directions may deal with matters relating to the provision of documents under sections
37 and
38AA, including any or all of the following matters:
(a)
documents that are or are not required to be lodged under paragraph
37(1)(b) and subsection
38AA(1);
(b)
documents that are or are not required to be lodged under subsection
37(1AAB) for the purposes of second reviews;
(c)
lodgement of documents for the purposes of subsection
37(1AB);
(d)
lodgement of additional copies of documents;
(e)
documents that are to be given to other parties under subsection
37(1AE).
History
S 18B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 18C
18C
SITTINGS OF TRIBUNAL
Sittings of the Tribunal are to be held from time to time as required, in such places in Australia or an external Territory as are convenient.
History
S 18C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 3 - Constitution of Tribunal
History
Div 3 substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. For former wording, see note under Pt III heading.
Div 3 inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Subdivision A - General
History
Subdiv A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19A
PRESIDENT'S DIRECTIONS - CONSTITUTION
19A(1)
The President may give written directions in relation to:
(a)
the members who are to constitute the Tribunal for the purposes of a proceeding; and
(b)
if there is more than one such member - the member who is to preside.
19A(2)
Paragraph (1)(b) does not apply to a proceeding in the Security Division.
History
S 19A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19B
CONSTITUTION
19B(1)
The Tribunal as constituted for the purposes of a proceeding:
(a)
must not have more than 3 members, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding; and
(b)
must not have more than one member who is a Judge, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding.
History
S 19B(1) amended by No 3 of 2022, s 3 and Sch 1 item 29, by inserting ", unless another provision of this Act or another enactment provides otherwise in relation to the proceeding" in para (b), applicable in relation to the constituting (or reconstituting) of the Tribunal on or after 18 February 2022.
19B(2)
At any time before the hearing of a proceeding commences, the powers of the Tribunal in relation to the proceeding may be exercised by the President or an authorised member.
19B(3)
Subsection
(2) does not apply in relation to the following powers:
(a)
the power under section
34J (circumstances in which hearing may be dispensed with);
(b)
the power under section
43 (Tribunal's decision on review);
(c)
the power under section
59 (advisory opinions);
(d)
a power that a provision of this Act (except this section) or another enactment requires or permits to be exercised by:
(i)
one or more persons specified by the provision; or
(ii)
the Tribunal constituted in a way specified by the provision.
Note:
Examples of powers covered by subparagraph (3)(d)(i) are the powers under sections 19A, 33 and 43AA. Examples of powers covered by subparagraph (3)(d)(ii) are the powers under section 19C.
19B(4)
This section does not apply in relation to a proceeding in the Security Division (see Subdivision
B).
History
S 19B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19C
CONSTITUTION FOR REVIEW OF TAXING OF COSTS
19C(1)
The Tribunal as constituted for the purposes of an application for review of a taxing of costs in another proceeding must be constituted by:
(a)
the member who constituted the Tribunal for the purposes of the other proceeding; or
(b)
if the Tribunal was constituted by more than one member for the purposes of the other proceeding - the member who presided for those purposes.
19C(2)
However, the Tribunal is to beconstituted as directed by the President if the member referred to in subsection (1):
(a)
has stopped being a member; or
(b)
is for any reason unavailable; or
(c)
has been directed by the President not to take part in the review.
19C(3)
The President must not give directions that would result in none of the members who constituted the Tribunal for the purposes of the other proceeding constituting the Tribunal for the purposes of the review, unless the President is satisfied that it is in the interests of justice to do so.
History
S 19C inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19D
RECONSTITUTION
Before hearing commences
19D(1)
At any time before the hearing of a proceeding commences, the President may revoke a direction under subsection
19A(1) in relation to the proceeding and give another such direction.
After hearing commences
19D(2)
At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection
19A(1) in relation to the proceeding and give another such direction, if:
(a)
the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:
(i)
stops being a member; or
(ii)
is for any reason unavailable; or
(iii)
is directed by the President not to take part in the proceeding; or
(b)
the President considers that doing so is in the interests of achieving the expeditious and efficient conduct of the proceeding.
19D(3)
Subsection
(2) does not apply in relation to a proceeding in the Security Division.
19D(4)
The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
President's directions
19D(5)
The President must not give a direction referred to in subparagraph
(2)(a)(iii) unless the President:
(a)
is satisfied that it is the interests of justice to do so; and
(b)
where it is reasonably practicable to do so, has consulted the member concerned.
History
S 19D(5) amended by No 3 of 2022, s 3 and Sch 1 item 33, by inserting "where it is reasonably practicable to do so," in para (b), applicable in relation to the giving of a direction referred to in subparagraph 19D(2)(a)(iii) on or after 18 February 2022.
19D(6)
The President must not, for the purposes of subsection
(2), revoke a direction under subsection
19A(1) in relation to a proceeding and give another such direction unless the President:
(a)
is satisfied that it is in the interests of justice to do so; and
(b)
where it is reasonably practicable to do so, has consulted each member who as a result ceases to be a member of the Tribunal as constituted for the purposes of the proceeding.
History
S 19D(6) amended by No 3 of 2022, s 3 and Sch 1 item 34, by inserting "where it is reasonably practicable to do so," in para (b),applicable in relation to a revocation under subsection 19D(2) on or after 18 February 2022, whether the direction was given under subsection 19A(1) before, on or after 18 February 2022.
19D(7)
In giving directions for the purposes of this section, the President must have regard to the Tribunal's objective in section
2A.
History
S 19D inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Subdivision B - Security Division
History
Subdiv B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19E
CONSTITUTION OF SECURITY DIVISION
Scope
19E(1)
This section applies to a proceeding in the Security Division other than a proceeding to which section
19F applies, but has effect subject to subsections 65(2) and 83F(6) of the
Australian Security Intelligence Organisation Act 1979.
History
S 19E(1) amended by No 33 of 2023, s 3 and Sch 1 item 16, by substituting "subsections 65(2) and 83F(6)" for "subsection 65(2)", effective 1 July 2023.
Constitution of Security Division
19E(2)
The Security Division is to be constituted by a presidential member and 2 other members.
19E(3)
The presidential member must not participate in the proceeding if the presidential member is or has been:
(a)
the Director-General of Security; or
(b)
an ASIO employee or ASIO affiliate.
Presiding member
19E(4)
The presidential member is to preside at a hearing of the proceeding.
Reconstitution
19E(5)
At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under subsection
19A(1) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding is for any reason unavailable.
19E(6)
The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
History
S 19E inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 19F
CONSTITUTION OF SECURITY DIVISION FOR PROCEEDINGS TO REVIEW CERTAIN ARCHIVES DECISIONS
Scope
19F(1)
This section applies to a proceeding in the Security Division in relation to a review of a decision of the Archives under the
Archives Act 1983 relating to an exempt security record.
History
S 19F(1) amended by No 53 of 2023, s 3 and Sch 1 item 27, by substituting "an exempt security record" for "a record of the Australian Security Intelligence Organisation", applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
Constitution of Security Division
19F(2)
The Security Division is to be constituted by:
(a)
3 presidential members; or
(b)
a presidential member alone.
19F(3)
If the proceeding relates to a record of the Australian Security Intelligence Organisation, a presidential member must not participate in the proceeding if the presidential member is or has been:
(a)
the Director-General of Security; or
(b)
an ASIO employee or ASIO affiliate.
History
S 19F(3) amended by No 53 of 2023, s 3 and Sch 1 item 28, by substituting "If the proceeding relates to a record of the Australian Security Intelligence Organisation, a presidential" for "A presidential", applicable in relation to a proceeding for the review of a decision made on or after 12 August 2023.
Presiding member
19F(4)
If the Tribunal is constituted by 3 presidential members, the person who is to preside at a hearing of the proceeding is:
(a)
if the President is one of the members - the President; or
(b)
if the President is not one of the members but one or more Judges is - the most senior (or only) Judge; or
(c)
if paragraphs
(a) and
(b) do not apply - the Deputy President whom the President directs to preside.
Reconstitution
19F(5)
At any time after the hearing of a proceeding commences and before the Tribunal determines the proceeding, the President may revoke a direction under paragraph
19A(1)(a) in relation to the proceeding and give another such direction, in accordance with this section, if a member constituting the Tribunal for the purposes of the proceeding ceases to be available.
19F(6)
The reconstituted Tribunal must continue the proceeding. For this purpose, it may have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
History
S 19F inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
(Repealed) PART IIIAA - SMALL TAXATION CLAIMS TRIBUNAL
History
Pt IIIAA repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Pt IIIAA inserted by No 34 of 1997, Sch 1, item 3.
24AA
(Repealed) SECTION 24AA DEFINITIONS
(Repealed by No 60 of 2015)
History
S 24AA repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AA formerly read:
SECTION 24AA DEFINITIONS
24AA
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.
S 24AA inserted by No 34 of 1997, Sch 1, item 3.
24AB
(Repealed) SECTION 24AB REVIEWS OF RELEVANT TAXATION DECISIONS TO BE HEARD BEFORE THE TAXATION APPEALS DIVISION
(Repealed by No 60 of 2015)
History
S 24AB repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AB formerly read:
SECTION 24AB REVIEWS OF RELEVANT TAXATION DECISIONS TO BE HEARD BEFORE THE TAXATION APPEALS DIVISION
24AB
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.
S 24AB inserted by No 34 of 1997, Sch 1, item 3.
24AC
(Repealed) SECTION 24AC SMALL TAXATION CLAIMS TRIBUNAL TO HEAR CERTAIN TAX DISPUTES
(Repealed by No 60 of 2015)
History
S 24AC repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AC formerly read:
SECTION 24AC SMALL TAXATION CLAIMS TRIBUNAL TO HEAR CERTAIN TAX DISPUTES
24AC(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.
24AC(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.
24AC(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.
S 24AC inserted by No 34 of 1997, Sch 1, item 3.
24AD
(Repealed) SECTION 24AD WHAT HAPPENS IF THE SMALL TAXATION CLAIMS TRIBUNAL CONSIDERS THAT THE TAX IN DISPUTE IS NOT LESS THAN THE DETERMINED AMOUNT
(Repealed by No 60 of 2015)
History
S 24AD repealed by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24AD formerly read:
SECTION 24AD WHAT HAPPENS IF THE SMALL TAXATION CLAIMS TRIBUNAL CONSIDERS THAT THE TAX IN DISPUTE IS NOT LESS THAN THE DETERMINED AMOUNT
24AD(1)
If:
(a)
an application is made 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.
24AD(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.
24AD(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.
24AD(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.
S 24AD inserted by No 34 of 1997, Sch 1, item 3.
PART IIIA - MANAGEMENT OF THE TRIBUNAL
History
Pt IIIA inserted by No 157 of 1989.
Division 1 - Management responsibilities of President and Registrar
SECTION 24A
MANAGEMENT OF ADMINISTRATIVE AFFAIRS OF TRIBUNAL
24A(1)
The President is responsible for managing the administrative affairs of the Tribunal.
24A(2)
However, the President is not responsible under subsection (1) for matters relating to the Tribunal under:
(a)
the
Public Governance, Performance and Accountability Act 2013; or
(b)
the
Public Service Act 1999.
24A(3)
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 Acts referred to in subsection (2).
24A(4)
However, the Registrar must consult with the President in relation to the Registrar's performance of those functions or exercise of those powers.
History
S 24A(4) substituted by No 122 of 2009.
SECTION 24B
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.
History
S 24B inserted by No 157 of 1989.
Division 1A - Application of the finance law
History
Div 1A inserted by No 62 of 2014, s 3 and Sch 6 item 1, effective 1 July 2014.
SECTION 24BA
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 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).
History
S 24BA amended by No 60 of 2015, s 3 and Sch 1 item 29, by substituting para (a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (a) formerly read:
(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
S 24BA inserted by No 62 of 2014, s 3 and Sch 6 item 1, effective 1 July 2014.
Division 2 - Appointment, powers etc. of Registrar
SECTION 24C
24C
APPOINTMENT OF REGISTRAR
The Registrar is appointed by the Governor-General on the nomination of the President.
History
S 24C inserted by No 157 of 1989.
SECTION 24D
POWERS OF THE REGISTRAR
24D(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.
24D(2)
In particular, the Registrar may act on behalf of the President in relation to the administrative affairs of the Tribunal.
24D(3)
The President may give the Registrar directions regarding the exercise of his or her powers under this Part.
24D(4)
(Repealed by No 60 of 2015)
History
S 24D(4) repealed by No 60 of 2015, s 3 and Sch 1 item 31, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24D(4) formerly read:
24D(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.
S 24D(4) inserted by No 62 of 2014, s 3 and Sch 7 item 70, effective 1 July 2014.
History
S 24D inserted by No 157 of 1989.
SECTION 24E
REMUNERATION OF REGISTRAR
24E(1)
The Registrar is to be paid the remuneration and allowances determined by the Remuneration Tribunal.
24E(2)
If there is no determination in force, the Registrar is to be paid such remuneration as is prescribed.
24E(3)
The Registrar is to be paid such other allowances as are prescribed.
24E(4)
(Repealed by No 60 of 2015)
History
S 24E(4) repealed by No 60 of 2015, s 3 and Sch 1 item 31, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24E(4) formerly read:
24E(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.
History
S 24E inserted by No 157 of 1989.
SECTION 24F
TERMS AND CONDITIONS OF APPOINTMENT OF REGISTRAR
24F(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.
24F(2)-(3)
(Repealed by No 159 of 2001)
24F(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 Minister.
History
S 24F(4) amended by No 60 of 2015, s 3 and Sch 1 item 32, by substituting "the Minister" for "the President", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 24F inserted by No 157 of 1989.
SECTION 24G
LEAVE OF ABSENCE
24G(1)
The Registrar has such recreation leave entitlements as are determined by the Remuneration Tribunal.
History
S 24G(1) substituted by No 122 of 1991; amended by No 146 of 1999.
24G(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 Minister determines.
History
S 24G(2) amended by No 60 of 2015, s 3 and Sch 1 item 33, by substituting "Minister" for "President, with the approval of the Minister,", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 24G(2) substituted by No 122 of 1991.
SECTION 24H
RESIGNATION
24H(1)
[Resignation in writing]
The Registrar may resign his or her appointment by giving the Governor-General a written resignation.
24H(2)
[When resignation takes effect]
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.
History
S 24H substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 24H inserted by No 157 of 1989.
SECTION 24J
OUTSIDE EMPLOYMENT OF REGISTRAR
24J(1)
Except with the consent of the President, the Registrar must not engage in paid employment outside the duties of his or her office.
24J(2)
[Exception: Defence Force service]
The reference in subsection (1) to paid employment does not include service in the Defence Force.
History
S 24J inserted by No 157 of 1989.
SECTION 24K
TERMINATION OF APPOINTMENT
24K(1)
The Governor-General may terminate the appointment of the Registrar:
(a)
for misbehaviour; or
(b)
if the Registrar is unable to perform the duties of his or her office because of physical or mental incapacity.
24K(2)
The Governor-General may terminate the appointment of the Registrar if:
(a)
the Registrar:
(i)
becomes bankrupt; or
(ii)
takes steps to take the benefit of any law for the relief of bankrupt or insolvent debts; or
(iii)
compounds with one or more of his or her creditors; or
(iv)
makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or
(b)
the Registrar is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c)
the Registrar engages in paid employment outside the duties of his or her office without the President's consent under section
24J; or
(d)
the Registrar fails, without reasonable excuse, to comply with section
24L (disclosure of interests).
24K(3)
The appointment of the Registrar may not be terminated other than in accordance with this section.
History
S 24K(3) inserted by No 157 of 1989; substituted by No 94 of 1992; amended by No 26 of 2008.
SECTION 24L
DISCLOSURE OF INTERESTS BY REGISTRAR
24L(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.
History
S 24L amended by No 62 of 2014, s 3 and Sch 7 item 71, by inserting "(1)" before "The", effective 1 July 2014.
24L(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.
History
S 24L(2) inserted by No 62 of 2014, s 3 and Sch 7 item 72, effective 1 July 2014.
24L(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.
History
S 24L(3) inserted by No 62 of 2014, s 3 and Sch 7 item 72, effective 1 July 2014.
History
S 24L inserted by No 157 of 1989.
SECTION 24M
24M
ACTING REGISTRAR
The Minister 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.
History
S 24M amended by No 60 of 2015, s 3 and Sch 1 item 35, by substituting "Minister" for "President", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 24M amended by No 46 of 2011, s 3 and Sch 2 items 32 and 33, by omitting "(1)" before "The President" and inserting the note at the end, effective 27 December 2011. No 46 of 2011, s 3 and Sch 3 items 10 and 11 contain the following saving and transitional provisions:
10 Saving - appointments
10
The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.
11 Transitional regulations
11
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.
S 24M inserted by No 157 of 1989.
24M(2)
(Repealed by No 46 of 2011)
History
S 24M(2) repealed by No 46 of 2011, s 3 and Sch 2 item 34, effective 27 December 2011. For saving provision and transitional regulations, see note under s 24M. S 24M(2) formerly read:
24M(2)
A person appointed to act in the office of Registrar during a vacancy may not continue to act in that office for more than 12 months.
24M(3)
(Repealed by No 46 of 2011)
History
S 24M(3) repealed by No 46 of 2011, s 3 and Sch 2 item 34, effective 27 December 2011. For saving provision and transitional regulations, see note under s 24M. S 24M(3) formerly read:
24M(3)
Anything done by or in relation to a person purporting to act under subsection (1) is not invalid on the ground that:
(a)
the occasion for the appointment had not arisen; or
(b)
there was a defect or irregularity in connection with the appointment; or
(c)
the appointment had ceased to have effect; or
(d)
the occasion for the person to act had not arisen or had ceased.
Division 3 - Other officers and staff of Tribunal
SECTION 24N
STAFF
24N(1)
The staff of the Tribunal must be persons engaged under the
Public Service Act 1999.
24N(2)
For the purposes of the
Public Service Act 1999:
(a)
the following persons together constitute a Statutory Agency:
(i)
the Registrar;
(ii)
the staff of the Tribunal referred to in subsection (1);
(iii)
the Senior Reviewer and the other Reviewers of the Immigration Assessment Authority; and
(b)
the Registrar is the head of that Statutory Agency.
History
S 24N(2) amended by No 60 of 2015, s 3 and Sch 2 items 146 and 147, by omitting "and" after "subsection (1);" from para (a)(ii) and inserting para (a)(iii), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
History
S 24N substituted by No 60 of 2015, s 3 and Sch 1 item 36, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24N formerly read:
SECTION 24N OFFICERS AND STAFF OF THE TRIBUNAL
24N(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.
History
S 24N(1) amended by No 175 of 1995.
24N(1A)
The Conference Registrars are appointed by the President.
History
S 24N(1A) inserted by No 175 of 1995.
24N(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.
History
S 24N(1B) inserted by No 175 of 1995.
24N(2)
The District Registrars and Deputy Registrars are appointed by the Registrar.
History
S 24N(2) amended by No 175 of 1995.
24N(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.
History
S 24N(3) amended by No 175 of 1995; No 146 of 1999.
24N(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.
History
S 24N(4) amended by No 146 of 1999.
24N(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.
History
S 24N(5) amended by No 175 of 1995.
S 24N inserted by No 157 of 1989.
SECTION 24P
24P
FUNCTIONS OF OFFICERS AND STAFF MEMBERS OF THE TRIBUNAL
The officers of the Tribunal and members of the staff of the Tribunal have the functions and powers conferred on them:
(a)
by this Act and any other enactment; and
(b)
by the President.
History
S 24P amended by No 3 of 2022, s 3 and Sch 1 item 56, by substituting "The officers of the Tribunal" for "The Registrar", effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A).
S 24P substituted by No 60 of 2015, s 3 and Sch 1 item 36, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24P formerly read:
SECTION 24P STATUTORY AGENCY ETC. FOR PURPOSES OF PUBLIC SERVICE ACT
24P
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.
S 24P substituted by No 146 of 1999, s 2, Sch 1[46].
SECTION 24PA
OFFICERS OF THE TRIBUNAL
24PA(1)
The Registrar may, by writing, appoint a person to be an officer of the Tribunal if the person is:
(a)
a member of the staff of the Tribunal referred to in subsection
24N(1); or
(b)
an APS employee made available to the Tribunal; or
(c)
an officer of the Supreme Court of Norfolk Island.
24PA(2)
An appointment under subsection
(1) may be expressed to be limited to specified decisions or proceedings or to specified functions or powers.
History
S 24PA substituted by No 3 of 2022, s 3 and Sch 1 item 57, effective 18 February 2022. For application, saving and transitional provisions, see note under s 10(2A). S 24PA formerly read:
SECTION 24PA OFFICERS OF THE TRIBUNAL
24PA
The Registrar may, by writing, appoint a person to be an officer of the Tribunal if:
(a)
the person is:
(i)
a member of the staff of the Tribunal referred to in subsection 24N(1); or
(ii)
an APS employee made available to the Tribunal; or
(iii)
an officer of the Supreme Court of Norfolk Island; and
(b)
the Registrar is satisfied that the person has appropriate qualifications and experience.
S 24PA inserted by No 60 of 2015, s 3 and Sch 1 item 36, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 24Q
ENGAGEMENT OF CONSULTANTS ETC.
24Q(1)
The Registrar may engage persons having suitable qualifications and experience as consultants to, or to perform services for, the Registrar.
24Q(2)
[Procedure]
An engagement under subsection (1) is to be made:
(a)
on behalf of the Commonwealth; and
(b)
by written agreement.
History
S 24Q inserted by No 157 of 1989.
Division 4 - Miscellaneous administrative matters
SECTION 24R
ANNUAL REPORT
24R(1)
As soon as practicable after 30 June in each year, the President must prepare a report of the management of the administrative affairs, including the operation of the Divisions, 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.
History
S 24R(1) amended by No 60 of 2015, s 3 and Sch 1 item 37, by inserting ", including the operation of the Divisions,", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 24R(1) amended by No 62 of 2014, s 3 and Sch 7 items 73 and 74, by omitting "and give to the Minister" after "the President must prepare" and inserting a note, effective 1 July 2014.
24R(2)
A report prepared after 30 June in a year must be given to the Minister by 15 October of that year.
History
S 24R(2) substituted by No 62 of 2014, s 3 and Sch 7 item 75, effective 1 July 2014. S 24R(2) formerly read:
24R(2)
The report must include:
(a)
the financial statements required by section 49 of the Financial Management and Accountability Act 1997; and
(b)
an audit report on those statements under section 57 of the Financial Management and Accountability Act 1997.
24R(3)
The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.
History
S 24R inserted by No 157 of 1989.
S 24R substituted by No 152 of 1997.
24S
(Repealed) SECTION 24S PROPER ACCOUNTS TO BE KEPT
(Repealed by No 152 of 1997)
24T
(Repealed) SECTION 24T AUDIT
(Repealed by No 152 of 1997)
24U
(Repealed) SECTION 24U REPEALED
(Repealed by No 136 of 1991)
24V
(Repealed) SECTION 24V DELEGATION OF ADMINISTRATIVE POWERS OF PRESIDENT
(Repealed by No 60 of 2015)
History
S 24V repealed by No 60 of 2015, s 3 and Sch 1 item 38, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 24V formerly read:
SECTION 24V DELEGATION OF ADMINISTRATIVE POWERS OF PRESIDENT
24V
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.
S 24V inserted by No 157 of 1989.
SECTION 24W
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.
History
S 24W inserted by No 157 of 1989.
PART IV - REVIEWS BY THE TRIBUNAL OF DECISIONS
Division 1A - Scope of operation of this Part
History
Div 1A inserted by No 60 of 2015, s 3 and Sch 1 item 39, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 24Z
SCOPE OF OPERATION OF THIS PART
24Z(1)
Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.
Note 1:
For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958.
Note 2:
Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part.
24Z(2)
The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:
(a)
section
25;
(b)
section
42.
History
S 24Z inserted by No 60 of 2015, s 3 and Sch 1 item 39, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 1 - Applications for review of decisions
History
Div 1 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 25
TRIBUNAL MAY REVIEW CERTAIN DECISIONS
25(1)
Enactment may provide for applications for review of decisions.
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.
25(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.
History
S 25(2) inserted by No 139 of 2010, s 3 and Sch 1 item 132, effective 1 January 2011.
Former s 25(2) repealed by No 43 of 1996.
25(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.
History
S 25(3) amended by No 139 of 2010, s 3 and Sch 1 item 133, by inserting "or (2)" after "(1)", effective 1 January 2011.
25(3A)
Delegations, acting appointments and authorisations.
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.
History
S 25(3A) inserted by No 58 of 1977; amended by No 175 of 1995.
25(4)
(Repealed by No 60 of 2015)
History
S 25(4) repealed by No 60 of 2015, s 3 and Sch 1 item 40, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 25(4) formerly read:
25(4)
Tribunal's power to review decisions.
The Tribunal has power to review any decision in respect of which application is made to it under any enactment.
25(4A)
Tribunal may determine scope of review.
The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.
History
S 25(4A) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
25(5)
Failure of decision-maker to meet deadline.
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.
History
S 25(5) amended by No 26 of 1982.
25(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.
History
S 25(5A) inserted by No 139 of 2010, s 3 and Sch 1 item 134, effective 1 January 2011.
Enactment may add to, exclude or modify operation of certain provisions
25(6)
If an Act provides for applications to the Tribunal:
(a)
that Act may also include provisions adding to, excluding or modifying the operation of any of the provisions of this Act in relation to such applications; and
(b)
those provisions have effect subject to any provisions so included.
History
S 25(6) substituted by No 114 of 2020, s 3 and Sch 1 item 221, effective 1 January 2021. S 25(6) formerly read:
25(6)
Enactment may add to, exclude or modify operation of certain provisions.
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, 29AB, 29AC, 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.
S 25(6) amended by No 60 of 2015, s 3 and Sch 1 item 40A, by inserting "29AB, 29AC," in para (a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 25(6) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 25(6) amended by No 58 of 1977; No 26 of 1982; No 175 of 1995.
25(6A)
If an enactment (other than an Act) 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,
29AB,
29AC,
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.
History
S 25(6A) inserted by No 114 of 2020, s 3 and Sch 1 item 221, effective 1 January 2021.
Former s 25(6A) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
25(7)
What happens if decision-maker ceases to hold office etc.
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.
History
S 25(7) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 25(7) amended by No 175 of 1995.
Norfolk Island enactment
25(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)
paragraph
19B(1)(a); 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).
History
S 25(8) amended by No 60 of 2015, s 3 and Sch 1 item 41, by substituting para (c), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (c) formerly read:
(c)
subsection 21(1); and
S 25(8) inserted by No 139 of 2010, s 3 and Sch 1 item 135, effective 1 January 2011.
Former s 25(8) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
25(9)-(12)
(Repealed by No 38 of 2005)
History
S 25(9)-(12) repealed by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 26
RESTRICTION ON POWERS OF DECISION-MAKER AFTER APPLICATION FOR REVIEW IS MADE
26(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.
History
S 26(1) amended by No 139 of 2010, s 3 and Sch 1 items 136 and 137, by inserting "if regulations made for the purposes of subsection 25(2) (which deals with Norfolk Island) did not authorise the making of the application -" before "the enactment" in para (a) and inserting para (aa), effective 1 January 2011.
S 26(1) inserted by No 175 of 1995, s 3, Sch 2.
26(1A)
Paragraph (1)(b) does not apply in relation to a proceeding that is a child support first review.
History
S 26(1A) inserted by No 60 of 2015, s 3 and Sch 1 item 42, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
26(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.
History
S 26(2) inserted by No 175 of 1995, Sch 2.
SECTION 27
PERSONS WHO MAY APPLY TO TRIBUNAL
27(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).
History
S 27(1) amended by No 139 of 2010, s 3 and Sch 1 items 138 and 139, by inserting "or Norfolk Island or an authority of Norfolk Island" after "authority of the Commonwealth" and inserting the note at the end, effective 1 January 2011.
S 27(1) amended by No 58 of 1977, s 38; No 175 of 1995, s 3, Sch 1; No 161 of 1999, s 2, Sch 3[6].
27(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.
27(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.
[
CCH Note
: S 14ZZB of the Taxation Administration Act, which commenced 1 March 1992, provides that s 27 does not apply to a reviewable objection decision (other than a reviewable objection decision that relates to a registration-type sales tax decision) or to an extension of time refusal decision.]
SECTION 27AA
APPLICATIONS TO TRIBUNAL UNDER AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT
Applications under Part IV of the Australian Security Intelligence Organisation Act 1979
27AA(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.
History
S 27AA(1) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[7].
27AA(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.
History
S 27AA(2) inserted by No 175 of 1995, s 3, Sch 1; amended by No 161 of 1999, s 2, Sch 3[7].
27AA(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.
History
S 27AA(3) inserted by No 175 of 1995, s 3, Sch 1.
Applications under Part IVA of the Australian Security Intelligence Organisation Act 1979
27AA(4)
An application under subsection 83B(1) of the
Australian Security Intelligence Organisation Act 1979 for review of a security clearance decision or security clearance suitability assessment may be made by a person in respect of whom the decision or suitability assessment was made and who has, in accordance with Part IVA of that Act, been given notice of the decision or suitability assessment.
History
S 27AA(4) inserted by No 33 of 2023, s 3 and Sch 1 item 18, effective 1 July 2023.
27AA(5)
An application under subsection 83B(2) of the
Australian Security Intelligence Organisation Act 1979 for review of the findings of the Tribunal on a review of a security clearance decision or security clearance suitability assessment may be made by the person who applied for the review in which the findings were made.
History
S 27AA(5) inserted by No 33 of 2023, s 3 and Sch 1 item 18, effective 1 July 2023.
27AA(6)
If the Tribunal is satisfied that an application referred to in subsection
(5) 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 a security clearance decision or security clearance suitability assessment.
History
S 27AA(6) inserted by No 33 of 2023, s 3 and Sch 1 item 18,effective 1 July 2023.
SECTION 27A
NOTICE OF DECISION AND REVIEW RIGHTS TO BE GIVEN
27A(1)
[Duty of person making decision]
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.
27A(2)
[Decisions excepted]
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.
History
S 27A(2) amended by No 139 of 2010, s 3 and Sch 1 item 140, by inserting "or (5A)" after "25(5)" in para (a), effective 1 January 2011.
S 27A(2) amended by No 156 of 1999, Sch 12; substituted by Act No 55 of 2001, Sch 3.
27A(3)
[Validity of decision not affected]
A failure to do what this section requires does not affect the validity of the decision.
27A(4)
[Definition]
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.
History
S 27A inserted by No 165 of 1992, Sch; amended by No 104 of 1994, Sch 5.
SECTION 27B
REVIEW - CODE OF PRACTICE
27B(1)
The Attorney-General may, by legislative instrument, determine a Code of Practice for the purpose of facilitating the operation of subsection 27A(1).
History
S 27B(1) amended by No 103 of 2013, s 3 and Sch 3 item 21, by substituting ", by legislative instrument, determine" for "determine, in writing,", effective 29 June 2013.
27B(2)
A person, in taking action under subsection 27A(1), must have regard to any such Code of Practice that is then in force.
27B(3)
(Repealed by No 103 of 2013)
History
S 27B(3) repealed by No 103 of 2013, s 3 and Sch 3 item 22, effective 29 June 2013. S 27B(3) formerly read:
A Code of Practice is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
S 27B inserted by No 165 of 1992.
SECTION 28
PERSON AFFECTED BY DECISION MAY OBTAIN REASONS FOR DECISION
28(1)
Request for statement of reasons.
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.
History
S 28(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(1) amended by No 58 of 1977; No 143 of 1979; No 175 of 1995.
Exceptions
28(1AAA)
Subsection (1) does not apply in relation to:
(a)
a decision that is reviewable in the Security Division; or
(b)
a decision that is a decision on AAT first review within the meaning of any of the following:
(i)
the A New Tax System (Family Assistance) (Administration) Act 1999;
(ii)
the Child Support (Registration and Collection) Act 1988;
(iii)
the Social Security (Administration) Act 1999;
(iv)
the Student Assistance Act 1973;
(v)
the Paid Parental Leave Act 2010.
History
S 28(1AAA) substituted by No 60 of 2015, s 3 and Sch 1 item 43, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 28(1AAA) formerly read:
28(1AAA)
Exception - Security Appeals Division.
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.
S 28(1AAA) inserted by No 175 of 1995.
28(1AA)
What happens if decision-maker contests applicant's entitlement to statement of reasons.
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.
History
S 28(1AA) inserted by No 26 of 1982, s 22; amended by No 175 of 1995, Sch 3; No 38 of 2005, s 3, Sch 1[78], effective 16 May 2005.
Provisions relevant to Act No 38 of 2005 (Sch 1[201] and [202]) are reproduced after s 2A of this Act.
28(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.
History
S 28(1AB) amended by No 38 of2005. For transitional provisions see note under s 2A.
S 28(1AB) inserted by No 26 of 1982.
28(1AC)
On application by an applicant who has received a notice under subsection (1AA), the Tribunal must decide whether the applicant was or was not entitled to be given the statement concerned.
History
S 28(1AC) substituted by No 60 of 2015, s 3 and Sch 1 item 44, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 28(1AC) formerly read:
28(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.
S 28(1AC) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(1AC) inserted by No 26 of 1982.
28(1A)
When decision-maker may refuse to give statement of reasons.
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.
History
S 28(1A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(1A) inserted by No 58 of 1977, s 17; amended by No 143 of 1979; No 175 of 1995.
28(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.
History
S 28(1B) inserted by No 58 of 1977, s 17.
28(2)
Public interest certificate.
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.
History
S 28(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(2) amended by No 58 of 1977; substituted by No 26 of 1982; amended by No 175 of 1995.
28(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.
History
S 28(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(3) substituted by No 58 of 1977; No 26 of 1982.
28(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.
History
S 28(3A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(3A) inserted by No 26 of 1982; amended by No 120 of 1988.
28(4)
When applicant not entitled to request statement of reasons.
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.
History
S 28(4) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(4) inserted by No 58 of 1977; amended by No 175 of 1995.
Inadequate statement of reasons
28(5)
An applicant who has been given a statement under subsection (1) may apply to the Tribunal for a declaration that the statement does not contain one or more of the following:
(a)
adequate particulars of findings on material questions of fact;
(b)
an adequate reference to the evidence or other material on which those findings were based;
(c)
adequate particulars of the reasons for the decision.
History
S 28(5) substituted by No 60 of 2015, s 3 and Sch 1 item 45, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 28(5) formerly read:
28(5)
Inadequate statement of reasons.
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.
S 28(5) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 28(5) inserted by No 26 of 1982.
28(6)
If the Tribunal makes the declaration, the person to whom the request for the statement was made must, as soon as practicable and no later than 28 days after the day the declaration was made, give the applicant an additional statement containing further and better particulars in relation to the matters specified in the declaration.
History
S 28(6) inserted by No 60 of 2015, s 3 and Sch 1 item 45, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 29
MANNER OF APPLYING FOR REVIEW
29(1)
An application to the Tribunal for a review of a decision-
(a)
must be made:
(i)
in writing; or
(ii)
if the decision is reviewable in the Social Services and Child Support Division - in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and
Note:
For oral applications, see also section 29AA.
(b)
must be accompanied by any prescribed fee; and
(c)
unless paragraph
(ca) or
(cb) applies or the application was oral - must contain a statement of the reasons for the application; and
(ca)
in respect of an application made under subsection 54(1) or 83B(1) of the
Australian Security Intelligence Organisation Act 1979 for review of a security assessment or a security clearance suitability assessment - must be accompanied by:
(i)
a copy of the assessment or suitability assessment as given to the applicant; and
(ii)
a statement indicating any part or parts of the assessment or suitability 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) or 83B(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.
History
S 29(1) amended by No 33 of 2023, s 3 and Sch 1 items 19-22, by inserting "or 83B(1)" and "or a security clearance suitability assessment" in para (ca), "or suitability assessment" in para (ca)(i) and (ii) and "or 83B(2)" in para (cb), effective 1 July 2023.
S 29(1) amended by No 60 of 2015, s 3 and Sch 1 item 46, by substituting para (a), (b) and (c), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Para (a), (b) and (c) formerly read:
(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
S 29(1) amended by No 139 of 2010, s 3 and Sch 1 item 141, by inserting "or (5A)" after "25(5)" in para (d), effective 1 January 2011.
S 29(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(1) substituted by No 58 of 1977; amended by No 175 of 1995; No 161 of 1999.
29(1A)
Address at which documents may be given.
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.
History
S 29(1A) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(1A) inserted by No 31 of 1993.
29(1B)
(Repealed by No 60 of 2015)
History
S 29(1B) repealed by No 60 of 2015, s 3 and Sch 1 item 47, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 29(1B) formerly read:
29(1B)
Tribunal may request amendment of insufficient statement.
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.
S 29(1B) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
29(2)
Prescribed time for making applications - general.
Subject to subsection (3), the prescribedtime 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.
History
S 29(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(2) substituted by No 58 of 1977.
29(3)
Prescribed time for making applications - decision-maker's failure to meet deadline.
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.
History
S 29(3) amended by No 139 of 2010, s 3 and Sch 1 item 142, by inserting "or (5A)" after "25(5)" (wherever occurring), effective 1 January 2011.
S 29(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(3) substituted by No 58 of 1977.
29(4)
What happens if there is no prescribed time for making applications.
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.
History
S 29(4) substituted by No 58 of 1977, s 18.
29(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.
History
S 29(5) substituted by No 58 of 1977, s 18.
29(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.
History
S 29(6) substituted by No 58 of 1977, s 18.
29(7)
Tribunal may extend time for making application.
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.
History
S 29(7) amended by No 38 of 2005. No 38 of 2005, s 3, Sch 1[100], provides:
Transitional - subsection 29(7) of the
Administrative Appeals Tribunal Act 1975
The amendment of subsection 29(7) of the Administrative Appeals Tribunal Act 1975 made does not affect an extension of time granted under that subsection before the commencement of this item.
For further transitional provisions see note under s 2A.
S 29(7) substituted by No 58 of 1977.
29(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.
History
S 29(8) substituted by No 58 of 1977, s 18; No 26 of 1982, s 23.
29(9)
Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a)
give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b)
require the applicant to give notice to those persons.
History
S 29(9) substituted by No 60 of 2015, s 3 and Sch 1 item 48, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 29(9) formerly read:
29(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.
S 29(9) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(9) substituted by No 58 of 1977.
29(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 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.
History
S 29(10) amended by No 60 of 2015, s 3 and Sch 1 item 49, by omitting ", as prescribed," before "stating that he or she", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 29(10) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(10) substituted by No 58 of 1977, s 18; amended by No 175 of 1995.
29(11)
(Repealed by No 60 of 2015)
History
S 29(11) repealed by No 60 of 2015, s 3 and Sch 1 item 50, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 29(11) formerly read:
29(11)
Decision-maker to be notified of application for review.
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.
S 29(11) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 29(11) substituted by No 58 of 1977, s 18; amended by No 175 of 1995.
SECTION 29AA
ORAL APPLICATIONS
29AA(1)
If a person makes an oral application as referred to in subparagraph
29(1)(a)(ii), the person receiving the application must:
(a)
make a written record of the details of the application; and
(b)
note on the record the day on which the application is made.
29AA(2)
If a person makes a written record of an oral application in accordance with subsection (1), this Part has effect as if the written record were an application in writing made on the day on which the oral application was made.
History
S 29AA inserted by No 60 of 2015, s 3 and Sch 1 item 51, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 29AB
29AB
INSUFFICIENT STATEMENT OF REASONS FOR APPLICATION
If the Tribunal considers that an applicant's statement under paragraph
29(1)(c) does not clearly 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 appropriately, within the period specified in the notice.
History
S 29AB inserted by No 60 of 2015, s 3 and Sch 1 item 51, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
SECTION 29AC
NOTICE OF APPLICATION
29AC(1)
If an application is made to the Tribunal for a review of a decision, the Registrar must give the following persons written notice of receipt of the application:
(a)
the applicant;
(b)
the person who made the decision;
(c)
any other person who is made a party to the review by the enactment that authorised the application.
History
S 29AC(1) amended by No 132 of 2015, s 3 and Sch 1 item 1, by inserting para (c), effective 14 October 2015.
29AC(2)
The Tribunal or an officer of the Tribunal may, if satisfied that another person's interests may be affected by the decision:
(a)
give the other person written notice of the application and of the person's right to apply to be made a party to the proceeding under subsection
30(1A); or
(b)
require the applicant to give the other person such a notice.
History
S 29AC inserted by No 60 of 2015, s 3 and Sch 1 item 51, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
29A
(Repealed) SECTION 29A APPLICATIONS - PAYMENT OF FEES
(Repealed by No 186 of 2012)
History
S 29A repealed by No 186 of 2012, s 3 and Sch 5 item 1, effective 11 June 2013. No 186 of 2012, s 3 and Sch 5 item 4(1) contains the following application and saving provision:
(1)
Despite the amendment made by item 1, section 29A of the Administrative Appeals Tribunal Act 1975, as in force immediately before the commencement of that item, continues to apply on and after that commencement in relation to applications lodged before that commencement.
S 29A formerly read:
SECTION 29A APPLICATIONS - PAYMENT OF FEES
29A(1)
Subject to subsection (2), an application to the Tribunal, whether for a review of a decision or otherwise, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid.
29A(2)
An application in respect of which a fee is waived under the regulations, whether at the time of lodgment or later, is taken to be made at the time it is lodged with the Tribunal.
S 29A inserted by No 31 of 1993, s 9.
SECTION 29B
NOTICE OF APPLICATION UNDER AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT
29B(1)
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, State or authority of a State to which the assessment was given.
History
S 29B amended by No 33 of 2023, s 3 and Sch 1 item 24, by inserting "(1)" before "If an application", effective 1 July 2023.
29B(2)
If an application is made to the Tribunal for a review of a security clearance decision or security clearance suitability assessment, the Registrar must give a copy of the application, and a copy of the statement lodged with the application, to:
(a)
the Director-General of Security; and
(b)
for an application for review of a security clearance decision - the sponsoring agency for the security clearance in relation to which the security clearance decision was made; and
(c)
for an application for review of a security clearance suitability assessment - the security vetting agency to which the suitability assessment was given.
History
S 29B(2) inserted by No 33 of 2023, s 3 and Sch 1 item 25, effective 1 July 2023.
29B(3)
If subsection
(2) applies, the Registrar must also give the applicant written notice of receipt of the application.
History
S 29B(3) inserted by No 33 of 2023, s 3 and Sch 1 item 25, effective 1 July 2023.
History
S 29B amended by No 82 of 2016, s 3 and Sch 12 item 10, by inserting ", State or authority of a State", effective 30 November 2016.
S 29B inserted by No 175 of 1995, s 3, Sch 1.
Division 2 - Parties and procedure
History
Div 2 heading inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 30
PARTIES TO PROCEEDING BEFORE TRIBUNAL
30(1AA)
Scope.
This section does not apply to a proceeding in the Security Division to which section 39A or 39BA applies.
History
S 30(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 30(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 53, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 30(1AA) inserted by No 175 of 1995.
30(1)
Parties.
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).
History
S 30(1) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 30(1) amended by No 58 of 1977, s 19; No 26 of 1982, s 24; No 38 of 2005.
30(1A)
Person whose interests are affected may apply to be a party.
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.
History
S 30(1A) inserted by No 26 of 1982.
30(2)
Official name.
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.
History
S 30(2) amended by No 175 of 1995.
SECTION 30A
INTERVENTION BY ATTORNEY-GENERAL
30A(1AA)
This section does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 30A(1AA) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 30A(1AA) amended by No 60 of 2015, s 3 and Sch 1 item 53, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 30A(1AA) inserted by No 175 of 1995, s 3, Sch 1.
30A(1)
The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding before the Tribunal.
30A(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.
History
S 30A inserted by No 26 of 1982, s 25; amended by No 175 of 1995, Sch 3.
SECTION 31
TRIBUNAL TO DETERMINE PERSONS WHOSE INTERESTS ARE AFFECTED BY DECISION
31(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.
31(2)
This section does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 31(2) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 31(2) amended by No 60 of 2015, s 3 and Sch 1 item 53, by substituting "Security Division" for "Security Appeals Division", effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 31(2) inserted by No 175 of 1995, s 3, Sch 1.
SECTION 32
REPRESENTATION BEFORE TRIBUNAL
Parties
32(1)
At the hearing of a proceeding before the Tribunal, the following parties may appear in person orbe represented by another person:
(a)
a party to a proceeding in a Division other than the Social Services and Child Support Division;
(b)
the agency party to a proceeding in the Social Services and Child Support Division.
32(2)
At the hearing of a proceeding before the Tribunal in the Social Services and Child Support Division, a party to the proceeding (other than the agency party) may appear in person or, with the Tribunal's permission, may be represented by another person.
32(3)
In deciding whether to grant permission for the purposes of subsection (2), the Tribunal must have regard to:
(a)
the Tribunal's objective in section
2A; and
(b)
the wishes of the parties and the need to protect their privacy.
Persons required to appear
32(4)
A person who is required to appear in a proceeding before the Tribunal may, with the permission of the Tribunal, be represented by another person.
History
S 32 substituted by No 60 of 2015, s 3 and Sch 1 item 54, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 32 formerly read:
SECTION 32 REPRESENTATION BEFORE TRIBUNAL
32
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.
SECTION 33
PROCEDURE OF TRIBUNAL
33(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.
History
S 33(1) amended by No 26 of 1982, s 26.
33(1AA)
Decision-maker must assist Tribunal.
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.
History
S 33(1AA) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
Parties etc. must assist Tribunal
33(1AB)
A party to a proceeding before the Tribunal, and any person representing such a party, must use his or her best endeavours to assist the Tribunal to fulfil the objective in section
2A.
History
S 33(1AB) inserted by No 60 of 2015, s 3 and Sch 1 item 55, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
33(1A)
Directions hearing.
The President or an authorised member may hold a directions hearing in relation to a proceeding.
History
S 33(1A) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(1A) inserted by No 31 of 1993.
33(2)
Who may give directions.
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 officer; 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.
History
S 33(2) amended by No 60 of 2015, s 3 and Sch 1 item 56, by substituting "officer" for "Conference Registrar" in para (a), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 33(2) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(2) substituted by No 26 of 1982, s 26; amended by No 31 of 1993.
33(2A)
Types of directions.
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; or
(d)
limit the number of witnesses who may be called to give evidence (either generally or on a specified matter); or
(e)
require witnesses to give evidence at the same time; or
(f)
limit the time for giving evidence or making oral submissions; or
(g)
limit the length of written submissions.
History
S 33(2A) amended by No 60 of 2015, s 3 and Sch 1 item 57, by inserting para (d) to (g), effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
S 33(2A) inserted by No 31 of 1993, s 10.
33(3)
(Repealed by No 60 of 2015)
History
S 33(3) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(3) formerly read:
33(3)
Directions may be varied or revoked.
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.
S 33(3) amended by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(3) inserted by No 26 of 1982.
33(4)
(Repealed by No 60 of 2015)
History
S 33(4) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(4) formerly read:
33(4)
Authorised Conference Registrar.
The President may authorise a particular Conference Registrar to be an authorised Conference Registrar for the purposes of paragraph (2)(a).
S 33(4) substituted by No 38 of 2005. No 38 of 2005, Sch 1 [111] provides:
Transitional - subsection 33(4) of the
Administrative Appeals Tribunal Act 1975
111(1)
This item applies to the power to make an authorisation under subsection 33(4) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
111(2)
For the purposes of section 4 of the Acts Interpretation Act 1901, that power is taken to be a power to make an instrument of an administrative character.
For further transitional provisions see note under s 2A.
S 33(4) inserted by No 26 of 1982.
33(5)
(Repealed by No 60 of 2015)
History
S 33(5) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(5) formerly read:
33(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.
S 33(5) substituted by No 38 of 2005. For transitional provisions see note under s 2A.
S 33(5) inserted by No 26 of 1982.
33(6)
(Repealed by No 60 of 2015)
History
S 33(6) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(6) formerly read:
33(6)
The President may at any time vary or revoke an authorisation under subsection (4).
S 33(6) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
33(7)
(Repealed by No 60 of 2015)
History
S 33(7) repealed by No 60 of 2015, s 3 and Sch 1 item 58, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 33(7) formerly read:
33(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.
S 33(7) inserted by No 38 of 2005. For transitional provisions see note under s 2A.
SECTION 33A
PARTICIPATION BY TELEPHONE ETC.
33A(1)
The Tribunal for the purposes of a hearing, or the person conducting a directions hearing or alternative dispute resolution process, may allow or require a person to participate by telephone or by means of other electronic communications equipment.
33A(2)
Subsection
(1) does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 33A(2) amended by No 33 of 2023, s 3 and Sch 1 item 44(a), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
History
S 33A inserted by No 60 of 2015, s 3 and Sch 1 item 59, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
Division 3 - Alternative dispute resolution processes
History
Div 3 heading inserted by No 38 of 2005. No 38 of 2005, Sch 1[117], provides:
Transitional - Division 3 of Part IV of the
Administrative Appeals Tribunal Act 1975
117(1)
This item applies to a conference or mediation if:
(a)
the conference or mediation had begun, before the commencement of this item, under section 34 or 34A of the Administrative Appeals Tribunal Act 1975; and
(b)
the conference or mediation had not been completed before the commencement of this item.
117(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if:
(a)
the conference or mediation were a conference or mediation under Division 3 of Part IV of that Act; and
(b)
in the case of a conference - the person presiding at the conference had been directed under subsection 34C(1) of that Act to conduct the conference; and
(c)
in the case of a mediation - the mediator had been directed under subsection 34C(1) of that Act to conduct the mediation;
and the conference or mediation is to be continued accordingly.
For further transitional provisions see note under s 2A.
SECTION 34
34
SCOPE OF DIVISION
This Division does not apply to a proceeding in the Security Division to which section
39A or
39BA applies.
History
S 34 amended by No 33 of 2023, s 3 and Sch 1 item 44(b), by substituting "section 39A or 39BA" for "section 39A", effective 1 July 2023.
S 34 substituted by No 3 of 2022, s 3 and Sch 1 item 24, applicable in relation to an application for review made on or after 18 February 2022. S 34 formerly read:
SECTION 34 SCOPE OF DIVISION
34
This Division does not apply to:
(a)
a proceeding in the Security Division to which section 39A applies; or
(b)
a proceeding in the Social Services and Child Support Division.
S 34 substituted by No 60 of 2015, s 3 and Sch 1 item 60, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. S 34 formerly read:
SECTION 34 SCOPE OF DIVISION
34
This Division does not apply to a proceeding in the Security Appeals Division to which section 39A applies.
S 34 substituted by No 38 of 2005. No 38 of 2005, Sch 1[119], provides:
Transitional - subsections 34(3) and 34A(7) of the
Administrative Appeals Tribunal Act 1975
Despite the repeal of subsections 34(3) and 34A(7) of the Administrative Appeals Tribunal Act 1975 by this Schedule, those subsections continue to apply after the commencement of this item, in relation to anything said, or any act done, before the commencement of this item, at a conference or mediation, as if those repeals had not happened.
No 38 of 2005, Sch 1[120], provides:
Transitional - subsections 34(4) and 34A(8) of the
Administrative Appeals Tribunal Act 1975
120(1)
Despite the repeal of subsection 34(4) of the Administrative Appeals Tribunal Act 1975 by this Schedule, that subsection continues to apply after the commencement of this item, in relation to a conference that was completed before the commencement of this item, as if that repeal had not happened.
120(2)
Despite the repeal of subsection 34A(8) of the Administrative Appeals Tribunal Act 1975 by this Schedule, that subsection continues to apply after the commencement of this item, in relation to a mediation that was completed before the commencement of this item, as if:
(a)
that repeal had not happened; and
(b)
the reference in that subsection to subsection 34A(5) or (6) of the Administrative Appeals Tribunal Act 1975 were a reference to subsection 34D(2) or (3) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A.
SECTION 34A
REFERRAL FOR ALTERNATIVE DISPUTE RESOLUTION PROCESS
34A(1)
If an application is made to the Tribunal, the President may direct that the proceeding, or any part of it or matter arising out of the proceeding, be referred to an alternative dispute resolution process.
34A(1A)
However, in relation to a proceeding in the Social Services and Child Support Division:
(a)
the President must not give a direction under subsection
(1) unless the alternative dispute resolution process is conferencing; and
(b)
the agency party to the proceeding is not required to participate in the conferencing.
History
S 34A(1A) inserted by No 3 of 2022, s 3 and Sch 1 item 25, applicable in relation to an application for review made on or after 18 February 2022.
34A(2)
The President may give written directions in relation to persons who are to conduct an alternative dispute resolution process. Any such person must be:
(a)
a member; or
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