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.

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.

SECTION 3   INTERPRETATION  

3(1)  


In this Act, unless the contrary intention appears:

ACT enactment
(Repealed by No 38 of 2005)

adduce
includes give.

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.

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


(a) conferencing; and


(b) mediation; and


(c) neutral evaluation; and


(d) case appraisal; and


(e) conciliation; and


(f) procedures or services specified in the regulations;

but does not include:


(g) arbitration; or


(h) court procedures or services.

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

ASIO affiliate
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO employee
has the same meaning as in the Australian Security Intelligence Organisation Act 1979.

ASIO Minister
means the Minister administering the Australian Security Intelligence Organisation Act 1979.

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

authorised officer
means an officer of the Tribunal who has been authorised by the President under section 59B for thepurposes of the provision in which the expression occurs.

authority of Norfolk Island
means an authority, tribunal or other body, whether incorporated or not, that is established by a Norfolk Island enactment.

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

Chief Executive Centrelink
has the same meaning as in the Human Services (Centrelink) Act 1997.

Chief Executive Medicare
has the same meaning as in the Human Services (Medicare) Act 1973.

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.

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

Conference Registrar
(Repealed by No 60 of 2015)

CSC
(short for Commonwealth Superannuation Corporation) has the same meaning as in the Governance of Australian Government Superannuation Schemes Act 2011.

Deputy President
means a member appointed as a Deputy President of the Tribunal.

Deputy Registrar
(Repealed by No 60 of 2015)

District Registrar
(Repealed by No 60 of 2015)

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).

engage in conduct
has the same meaning as in the Criminal Code.

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.

Judge
means:


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


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

member
means:


(a) 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)).

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

Norfolk Island enactment
means:


(a) an enactment (within the meaning of the Norfolk Island Act 1979); or


(b) an instrument (including rules, regulations or by-laws) made under such an enactment;

and includes a Norfolk Island enactment as amended by another Norfolk Island enactment.

Norfolk Island Justice Minister
(Repealed by No 59 of 2015)

Norfolk Island Minister
(Repealed by No 59 of 2015)

officer of the Tribunal
means:


(a) the Registrar; or


(b) a person appointed as an officer of the Tribunal under section 24PA.

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.

President
means the President of the Tribunal.

presidential member
means the President or a Deputy President.

proceeding
, in relation to the Tribunal, includes:


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


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


(c) an application to the Tribunal for review of a 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 applicationor proposed application, or a matter, referred to in a preceding paragraph.

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 .

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

senior member
means a senior member of the Tribunal (of either level referred to in subsection 6(3)).

Senior non-presidential member
(Omitted by No 26 of 1982)

Small Taxation Claims Tribunal
(Repealed by No 60 of 2015)

State
includes the Northern Territory and the Australian Capital Territory.

Tribunal
:


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


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


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

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.

3(4)  


(Repealed by No 38 of 2005)

3(5)  
(Repealed by No 38 of 2005)

SECTION 3A   3A   CERTAIN LEGISLATION RELATING TO AUSTRALIAN CAPITAL TERRITORY NOT TO BE ENACTMENT  
(Repealed by No 38 of 2005)

SECTION 3B   3B   MEMBERS MAY BE APPOINTED TO BE MEMBERS OF ADMINISTRATIVE APPEALS TRIBUNAL FOR THE ACT  
(Repealed by No 38 of 2005)

SECTION 4   4   EXTENSION TO EXTERNAL TERRITORIES  
This Act extends to every external Territory.

PART II - ESTABLISHMENT OF THE ADMINISTRATIVE APPEALS TRIBUNAL  

Division 1 - Establishment of Tribunal  

SECTION 5   5   ESTABLISHMENT OF TRIBUNAL  


There is hereby established an Administrative Appeals Tribunal.

SECTION 5A   5A   MEMBERSHIP  


The Tribunal consists of the following members:


(a) the President;


(b) Deputy Presidents;


(c) senior members;


(d) other members.

Division 2 - Members of Tribunal  

SECTION 6   APPOINTMENT OF MEMBERS OF TRIBUNAL  

6(1)  
The members shall be appointed by the Governor-General.

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.

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).

6(4)  
A member (other than a Judge) shall be appointed either as a full-time member or as a part-time member.

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 Family Court of Australia; 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. 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.

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.

SECTION 8   TERM OF APPOINTMENT  

8(1)  
(Repealed by No 38 of 2005)

8(2)  
(Repealed by No 38 of 2005)

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.

8(5)  
(Repealed by No 38 of 2005)

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.

SECTION 8A   8A   [SPECIAL PROVISIONS - PRESIDENT ON THE BENCH OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION]  
(Repealed by No 38 of 2005)

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.

9(2)   [Allowances]  

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

9(3)   [Remuneration Tribunal Act]  

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

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.

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.

Qualification for acting appointment

10(3)  


A person must not be appointed to act in an office under subsection (1) or (2) unless the person meets the requirements in section 7 for appointment to the office.

10(4)  
(Repealed by No 60 of 2015)

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.

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.

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) is to act on such terms and conditions as the Minister determines in writing.

10(8)  
(Repealed by No 26 of 1982)

10(9)  
(Repealed by No 60 of 2015)

10(10)  
(Repealed by No 60 of 2015)

10(11)  
(Repealed by No 60 of 2015)

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.

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.

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.

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.

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.

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.

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.

SECTION 16   16   [APPLICATION OF JUDGES' PENSIONS ACT]  
(Repealed by No 38 of 2005)

17-18   SECTIONS 17-18  
(Repealed by No 72 of 1984)

PART III - ORGANISATION OF THE TRIBUNAL  

Division 1 - Divisions of the Tribunal  

Subdivision A - Divisions of the Tribunal  

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.

SECTION 17B   ALLOCATION OF BUSINESS TO DIVISIONS  

17B(1)  
The Tribunal's powers in relation to a proceeding beforethe 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 of the Australian Security Intelligence Organisation Act 1979;


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

Subdivision B - Assignment of members to Divisions  

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.

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.

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.

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.

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).

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.

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.

SECTION 17J   17J   VALIDITY  


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

Subdivision C - Division heads and Deputy Division heads  

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.

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 the deputy head of one or more Divisions of the Tribunal.

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

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

17L(7)  
The Minister may, by written instrument, assign a member to act as the deputy head of a Division during any period, or during all periods, when the deputy head of the Division is absent from duty or from Australia. Such an assignment is taken to be an appointment to act for the purposes of the Acts Interpretation Act 1901.

Division 2 - Arrangement of business of Tribunal  

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.

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).

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.

Division 3 - Constitution of Tribunal  

Subdivision A - General  

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.

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.

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).

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 be constituted as directed by the President if the member referred to in subsection (1):


(a) has stopped being a member; or


(b) is for any reason unavailable; or


(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.

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) has consulted the member concerned.

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

19D(7)  
In giving directions for the purposes of this section, the President must have regard to the Tribunal's objective in section 2A.

Subdivision B - Security Division  

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 subsection 65(2) of the Australian Security Intelligence Organisation Act 1979. 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).

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 a record of the Australian Security Intelligence Organisation. 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)  
A presidential member must not participate in the proceeding if the presidential member is or has been:


(a) the Director-General of Security; or


(b) an ASIO employee or ASIO affiliate. Presiding member

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).

PART IIIAA - SMALL TAXATION CLAIMS TRIBUNAL  

SECTION 24AA   24AA   DEFINITIONS  
(Repealed by No 60 of 2015)

SECTION 24AB   24AB   REVIEWS OF RELEVANT TAXATION DECISIONS TO BE HEARD BEFORE THE TAXATION APPEALS DIVISION  
(Repealed by No 60 of 2015)

SECTION 24AC   24AC   SMALL TAXATION CLAIMS TRIBUNAL TO HEAR CERTAIN TAX DISPUTES  
(Repealed by No 60 of 2015)

SECTION 24AD   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)

PART IIIA - MANAGEMENT OF THE TRIBUNAL  

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.

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.

Division 1A - Application of the finance law  

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).

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.

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)

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)

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.

SECTION 24G   LEAVE OF ABSENCE  

24G(1)  


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

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.

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.

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.

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.

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.

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.

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.

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.

24M(2)  
(Repealed by No 46 of 2011)

24M(3)  
(Repealed by No 46 of 2011)

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.

SECTION 24P   24P   FUNCTIONS OF REGISTRAR AND STAFF  


The Registrar 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.

SECTION 24PA   24PA   OFFICERS OF THE TRIBUNAL  


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.

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.

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.

24R(2)  


A report prepared after 30 June in a year must be given to the Minister by 15 October of that year.

24R(3)  
The Minister must cause a copy of the report to be tabled in each House of the Parliament as soon as practicable.

SECTION 24S   24S   PROPER ACCOUNTS TO BE KEPT  
(Repealed by No 152 of 1997)

SECTION 24T   24T   AUDIT  
(Repealed by No 152 of 1997)

SECTION 24U   24U   [REPEALED]  
(Repealed by No 136 of 1991)

SECTION 24V   24V   DELEGATION OF ADMINISTRATIVE POWERS OF PRESIDENT  
(Repealed by No 60 of 2015)

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.

PART IV - REVIEWS BY THE TRIBUNAL OF DECISIONS  

Division 1A - Scope of operation of this Part  

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.

Division 1 - Applications for review of decisions  

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.

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.

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.

25(4)  
(Repealed by No 60 of 2015)

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.

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.

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.

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.

25(6A)  
(Repealed by No 38 of 2005)

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.

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).

25(9)-(12)  
(Repealed by No 38 of 2005)

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.

26(1A)  


Paragraph (1)(b) does not apply in relation to a proceeding that is a child support first review.

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.

SECTION 27   PERSONS WHO MAY APPLY TO TRIBUNAL  

27(1)   [Interested parties]  

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).

27(2)   [Organizations]  

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)   [Formation of organization to pre-date decision]  

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.

SECTION 27AA   APPLICATIONS TO TRIBUNAL UNDER AUSTRALIAN SECURITY INTELLIGENCE ORGANISATION ACT  

27AA(1)   [Review of security assessments; who may apply]  

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.

27AA(2)   [Review of Tribunal's findings on review; who may apply]  

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.

27AA(3)   [Review of findings]  

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.

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.

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.

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).

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)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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) of the Australian Security Intelligence Organisation Act 1979 for review of a security assessment - must be accompanied by:


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

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


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


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

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

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.

29(1B)  
(Repealed by No 60 of 2015)

29(2)   Prescribed time for making applications - general.  

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


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


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


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

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

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

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.

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.

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.

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.

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.

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.

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.

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.

29(11)  
(Repealed by No 60 of 2015)

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.

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.

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.

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.

SECTION 29A   29A   APPLICATIONS - PAYMENT OF FEES  
(Repealed by No 186 of 2012)

SECTION 29B   29B   NOTICE OF APPLICATION - REVIEW OF SECURITY ASSESSMENT  


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.

Division 2 - Parties and procedure  

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 applies.

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).

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.

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.

SECTION 30A   INTERVENTION BY ATTORNEY-GENERAL  

30A(1AA)  


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

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.

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 applies.

SECTION 32   REPRESENTATION BEFORE TRIBUNAL  

Parties

32(1)  
At the hearing of a proceeding before the Tribunal, the following parties may appear in person or be 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.

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.

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.

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.

33(1A)   Directions hearing.  

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

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.

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.

33(3)  
(Repealed by No 60 of 2015)

33(4)  
(Repealed by No 60 of 2015)

33(5)  
(Repealed by No 60 of 2015)

33(6)  
(Repealed by No 60 of 2015)

33(7)  
(Repealed by No 60 of 2015)

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 applies.

Division 3 - Alternative dispute resolution processes  

SECTION 34   34   SCOPE OF DIVISION  


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.

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(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


(b) an officer of the Tribunal; or


(c) a person engaged under section 34H.

34A(3)  
The parties to a proceeding referred to an alternative dispute resolution process must act in good faith in relation to the conduct of the alternative dispute resolution process.

SECTION 34B   34B   ALTERNATIVE DISPUTE RESOLUTION PROCESSES - PROCEEDING BEFORE THE SMALL TAXATION CLAIMS TRIBUNAL  
(Repealed by No 60 of 2015)

SECTION 34C   34C   DIRECTIONS BY PRESIDENT  
(Repealed by No 60 of 2015)

SECTION 34D   AGREEMENT ABOUT THE TERMS OF A DECISION ETC.  

34D(1)  
If:


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


(i) in the proceeding; or

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

(iii) in relation to the matter arising out of the proceeding;
that would be acceptable to the parties; and


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


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


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

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

34D(2)  
If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may, without holding a hearing of the proceeding, make a decision in accordance with those terms.

34D(3)  
If the agreement relates to:


(a) a part of the proceeding; or


(b) a matter arising out of the proceeding;

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

Variation or revocation of decision

34D(4)  


The Tribunal may vary or revoke so much of a decision as it made in accordance with subsection (2) or (3) if:


(a) the parties, or their representatives, reach agreement on the variation or revocation; and


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


(c) the variation or revocation appears appropriate to the Tribunal; and


(d) in the case of a variation - the Tribunal is satisfied that it would have been within the powers of the Tribunal to have made the decision as varied.

SECTION 34E   EVIDENCE NOT ADMISSIBLE  

34E(1)   [Inadmissibility of evidence] 

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


(a) in any court; or


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


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

34E(2)   Exceptions.  

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

34E(3)   [Exceptions - reports]  

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


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


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

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

SECTION 34F   34F   ELIGIBILITY OF PERSON CONDUCTING ALTERNATIVE DISPUTE RESOLUTION PROCESS TO SIT AS A MEMBER OF THE TRIBUNAL  


If:


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


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

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

SECTION 34G   34G   PARTICIPATION BY TELEPHONE ETC.  
(Repealed by No 60 of 2015)

SECTION 34H   ENGAGEMENT OF PERSONS TO CONDUCT ALTERNATIVE DISPUTE RESOLUTION PROCESSES  

34H(1)   [Powers of Registrar]  

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

34H(2)   [Who Registrar may engage]  

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

Division 4 - Hearings and evidence  

SECTION 34J   34J   CIRCUMSTANCES IN WHICH HEARING MAY BE DISPENSED WITH  


If:


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


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

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

SECTION 35   PUBLIC HEARINGS AND ORDERS FOR PRIVATE HEARINGS, NON-PUBLICATION AND NON-DISCLOSURE  

Public hearing

35(1)  
Subject to this section, the hearing of a proceeding before the Tribunal must be in public. Private hearing

35(2)  
The Tribunal may, by order:


(a) direct that a hearing or part of a hearing is to take place in private; and


(b) give directions in relation to the persons who may be present. Orders for non-publication or non-disclosure

35(3)  
The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:


(a) information tending to reveal the identity of:


(i) a party to or witness in a proceeding before the Tribunal; or

(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or


(b) information otherwise concerning a person referred to in paragraph (a).

35(4)  


The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:


(a) relates to a proceeding; and


(b) is any of the following:


(i) information that comprises evidence or information about evidence;

(ii) information lodged with or otherwise given to the Tribunal.

35(5)  
In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:


(a) that hearings of proceedings before the Tribunal should be held in public; and


(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and


(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.

However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

Not applicable to Security Division review of security assessment

35(6)  
This section does not apply in relation to a proceeding in the Security Division to which section 39A applies.

Note:

See section 35AA.

SECTION 35AA   ORDERS FOR NON-PUBLICATION AND NON-DISCLOSURE - CERTAIN SECURITY DIVISION PROCEEDINGS  

35AA(1)  
This section applies in relation to a proceeding in the Security Division to which section 39A applies.

35AA(2)  
The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:


(a) information tending to reveal the identity of:


(i) a party to or witness in the proceeding; or

(ii) any person related to or otherwise associated with any party to or witness in the proceeding; or


(b) information otherwise concerning a person referred to in paragraph (a); or


(c) information that relates to the proceeding and is any of the following:


(i) information that comprises evidence or information about evidence;

(ii) information lodged with or otherwise given to the Tribunal; or


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

SECTION 35A   35A   PARTICIPATION BY TELEPHONE ETC  
(Repealed by No 60 of 2015)

SECTION 36   DISCLOSURE NOT REQUIRED: ATTORNEY-GENERAL'S PUBLIC INTEREST CERTIFICATE  

36(1AA)   Scope.  

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

36(1)   Attorney-General may issue public interest certificate.  

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


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


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


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

the following provisions of this section have effect.

36(2)   Protection of information etc.  

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

36(3)   Disclosure of information etc.  

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

36(3A)   Attorney-General taken to be a party.  

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

36(4)   What Tribunal must consider in deciding whether to disclose information etc.  

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

36(4AA)-(8)  
(Omitted by No 120 of 1988)

SECTION 36A   ANSWERING QUESTIONS WHERE ATTORNEY-GENERAL INTERVENES ON PUBLIC INTEREST GROUNDS  

36A(1AA)   Scope.  

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

36A(1)   Intervention by Attorney-General.  

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

36A(2)   When person excused from answering question.  

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


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


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

36A(2A)   Attorney-General taken to be a party.  

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

36A(2B)-(6)  
(Omitted by No 120 of 1988)

SECTION 36AA   36AA   INTERPRETATION OF SECTIONS 36B, 36C AND 36D  


In sections 36B, 36C and 36D, unless the contrary intention appears:

Attorney-General
includes the Minister administering the ACT Civil and Administrative Tribunal Act 2008 of the Australian Capital Territory.

Cabinet
includes the Australian Capital Territory Executive.

SECTION 36B   DISCLOSURE NOT REQUIRED: STATE ATTORNEY-GENERAL'S PUBLIC INTEREST CERTIFICATE  

36B(1AA)   Scope.  

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

36B(1)   State Attorney-General may issue public interest certificate.  

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


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


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

the following provisions of this section have effect.

36B(2)   Protection of information etc.  

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

36B(3)   Disclosure of information etc.  

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

36B(4)   State Attorney-General taken to be a party.  

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

36B(5)   What Tribunal must consider in deciding whether to disclose information etc.  

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

36B(6)  
(Repealed by No 59 of 2015)