CHAPTER 9
-
MISCELLANEOUS
PART 9.4A
-
REVIEW BY ADMINISTRATIVE APPEALS TRIBUNAL OF CERTAIN DECISIONS
SECTION 1317A
1317A
DEFINITIONS
In this Part:
decision
has the same meaning as in the
Administrative Appeals Tribunal Act 1975
.
SECTION 1317B
APPLICATIONS FOR REVIEW
1317B(1)
Subject to this Part, applications may be made to the Tribunal for review of a decision made under this Act by:
(a)
the Minister; or
(b)
ASIC; or
(c)
the Companies Auditors Disciplinary Board; or
(d)
a committee convened under Part
2
of Schedule
2
.
[
CCH Note:
S 1317B(1) will be amended by No 69 of 2020, s 3, Sch 1[1267], by inserting para (ba) (effective 1 July 2026 or a day or days to be fixed by Proclamation). Para (ba) will read:
(ba)
the Registrar; or.]
History
S 1317B(1) amended by No 11 of 2016, s 3, Sch 2[247] and
[
248].
1317B(1A)
Subject to this Part, applications may also be made to the Tribunal for review of a decision made by the Registrar under the data standards or disclosure framework.
History
S 1317B(1A) inserted by No 69 of 2020, s 3, Sch 1
[
12] (effective 4 April 2021).
1317B(2)
For the purposes of this Act and the
Administrative Appeals Tribunal Act 1975
, ASIC and APRA are taken to be persons whose interests are affected by a decision made under this Act by the Companies Auditors Disciplinary Board.
History
S 1317B(2) amended by No 11 of 2016, s 3, Sch 2[249].
S 1317B(2) amended by No 103 of 2004, s 3, Sch 1, Pt 8
[
178].
SECTION 1317C
1317C
EXCLUDED DECISIONS
Section
1317B
does not apply in relation to:
(a)
a decision in respect of which any provision in the nature of an appeal or review is expressly provided by this Act; or
(b)
a decision that is declared by this Act to be conclusive or final or is embodied in a document declared by this Act to be conclusive evidence of an act, matter or thing; or
(c)
(Repealed)
(ca)
a decision of ASIC to order the winding up of a company under section
489EA
; or
(d)
a decision made by ASIC in the performance of a function, or in the exercise of a power, under section
601CC
or
601CL
or Chapter
5A
; or
(e)
a decision by ASIC to refuse to exercise a power under section
601CC
or
601CL
or Chapter
5A
; or
(f)
a decision to apply under section
596A
or
596B
for the Court to summon a person for examination about a corporation
'
s examinable affairs; or
(g)
a decision to apply under section
597A
for the Court to require a person to file an affidavit about a corporation
'
s examinable affairs; or
(ga)
a decision of ASIC under section
655A
; or
(gb)
a decision of ASIC under section
673
in relation to securities of the target of a takeover bid during the bid period; or
(gc)
a decision by ASIC whether to make an application under section
657C
,
657G
,
659B
,
1325A
,
1325B
or
1325C
; or
(gca)
a decision by ASIC to make market integrity rules under section
798G
; or
(gcb)
a decision by the Minister to:
(i)
consent to the making of a market integrity rule; or
(ii)
direct ASIC to revoke or amend a market integrity rule; or
(gcc)
a decision by ASIC to do or not do anything under regulations made for the purposes of section
798K
(alternatives to civil proceedings); or
(gcd)
a decision by ASIC to:
(i)
make CS services rules; or
(ii)
give a direction under subsection
828G(1)
; or
(gce)
a decision by the Minister to:
(i)
make a determination under subsection
828B(2)
; or
(ii)
consent under subsection
828K(1)
to the making of CS services rules; or
(iii)
make directions under paragraph
828L(2)(b)
; or
(gd)
a decision of the Minister under Division
1
of Part
7.4
; or
(gda)
a decision by the Minister:
(i)
to make a determination under section
901B
, or to amend or revoke such a determination; or
(ii)
to consent, under section
901K
or
903H
, to the making of a derivative transaction rule or a derivative trade repository rule, or to consent to the variation or revocation of such a rule; or
(iii)
to direct ASIC, under section
901L
or
903J
, to amend or revoke a derivative transaction rule or a derivative trade repository rule; or
(gdb)
a decision by ASIC to make derivative transaction rules or derivative trade repository rules under section
901A
or
903A
, or to vary or revoke such rules; or
(gdc)
a decision by ASIC to do or not do anything under regulations made for the purpose of section
901F
or
903E
; or
(gdca)
a decision by ASIC under subsection
915B(1B)
,
(2B)
,
(3B)
or
(4B)
(immediate cancellation of an Australian financial services licence); or
(gdd)
a decision by ASIC to make client money reporting rules under section
981J
; or
(gde)
a decision by ASIC to do or not do anything under regulations made for the purposes of section
981N
(alternatives to civil proceedings for contraventions of client money reporting rules); or
(gdf)
a decision by ASIC to make a declaration under subsection
908AC(2)
, or to vary or revoke such a declaration (about significant financial benchmarks); or
(gdg)
a decision by the Minister under:
(i)
subsection
908AC(4)
to consent to the making of a declaration under subsection
908AC(2)
; or
(ii)
subsection
908AD(3)
to direct ASIC to revoke a declaration made under subsection
908AC(2)
; or
(gdh)
a decision of the Minister under subsection
908BU(2)
to disallow a direction or notice given by ASIC under section
908BT
(about compliance directions or notices given to benchmark administrator licensees); or
(gdi)
a decision by ASIC to make rules under Division
3
of Part
7.5B
, or to vary or revoke such rules; or
(gdj)
a decision by ASIC to do or not do anything under regulations made for the purposes of subsection
908CG(1)
(alternatives to civil proceedings for contraventions of rules about financial benchmarks); or
(gdk)
a decision by the Minister:
(i)
under subsection
908CM(2)
to consent to the making of rules under Division
3
of Part
7.5B
; or
(ii)
under subsection
908CN(3)
to direct ASIC to vary or revoke rules made under Division
3
of Part
7.5B
; or
(gdl)
a decision by ASIC to require something, by giving written notice, under the compelled financial benchmark rules; or
(gdm)
any of the following decisions by ASIC:
(i)
a decision under subsection
1023D(3)
(which relates to making product intervention orders);
(ii)
a decision under subsection
1023H(1)
(which relates to extensions of product intervention orders);
(iii)
a decision under section
1023J
(which relates to amendments of product intervention orders) that, under subsection
1023J(6)
, must be by legislative instrument;
(iv)
a decision under section
1023K
(which relates to revocation of product intervention orders) that, under subsection
1023K(4)
, must be by legislative instrument; or
(ge)
a decision of ASIC under section
1101A
or
1101AA
;or
(gf)
a decision of ASIC:
(i)
to give an infringement notice under section
1317DAM
; or
(ii)
to extend, or to refuse to extend, the payment period for an infringement notice under section
1317DAR
; or
(iii)
to make an arrangement, or to refuse to make an arrangement, to pay the amount payable under an infringement notice by instalments under section
1317DAS
; or
(iv)
to withdraw, or not to withdraw, an infringement notice under section
1317DAT
; or
(gg)
a decision by the Registrar to make, amend or repeal data standards under section
1270G
; or
(gh)
a decision by the Registrar to make, amend or repeal the disclosure framework under section
1270K
; or
(h)
a decision to make a determination under subsection
1317D(3)
; or
(i)
a decision of ASIC to issue an infringement notice under section
1317DAC
; or
(j)
a decision of ASIC to withdraw, or not to withdraw, an infringement notice under section
1317DAI
; or
(k)
a decision of ASIC under section 40-5 of Schedule
2
(which deals with directing liquidators to comply with requirements to lodge documents etc.); or
(l)
a decision of ASIC under section 40-10 of Schedule
2
(which deals with directing liquidators to correct inaccuracies etc.); or
(m)
a decision of ASIC under section 40-100 of Schedule
2
to take no action in relation to matters raised by an industry notice lodged under that section (notice by industry bodies of possible grounds for disciplinary action); or
(n)
a decision of ASIC to give a direction under section 70-70 of Schedule
2
(which deals with directing external administrators to comply with requests for information etc.); or
(o)
a decision of ASIC under section 70-85 of Schedule
2
(a decision to impose a condition on the use or disclosure of relevant material).
[
CCH Note:
Regulation 10.25.02(3)(m) (which was effective 1 March 2017) provides that the amendments made by No 11 of 2016, s 3, Sch 2[251] (to the extent that it inserts paragraphs 1317C(n) and (o)) apply in relation to external administrations on and after 1 September 2017.]
[
CCH Note:
S 1317C will be amended by No 69 of 2020, s 3, Sch 1[1268] and
[
1269], by inserting
"
or the Registrar
"
after
"
ASIC
"
in para (d) and (e) and
"
with ASIC or the Registrar
"
after
"
documents etc.
"
in para (k) (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1317C amended by No 75 of 2023, s 3, Sch 3[9] (effective 21 September 2023).
S 1317C amended by No 46 of 2023, s 3, Sch 1[17] (effective 4 July 2023).
S 1317C amended by No 69 of 2020, s 3, Sch 1[13] (effective 4 April 2021).
S 1317C amended by No 135 of 2020, s 3, Sch 1
[
5] (effective 1 January 2021).
S 1317C amended by No 50 of 2019, s 3, Sch 2
[
10] (effective 6 April 2019).
S 1317C amended by No 17 of 2019, s 3, Sch 1
[
112] (effective 13 March 2019).
S 1317C amended by No 61 of 2018, s 3, Sch 2[307] (effective 18 September 2018).
S 1317C amended by No 27 of 2018, s 3, Sch 1[23] (effective 12 April 2018).
S 1317C amended by No 25 of 2017, s 3, Sch 5[19] (effective 4 April 2018).
S 1317C amended by No 11 of 2016, s 3, Sch 2[250] and
[
251].
S 1317C amended by No 178 of 2012, s 3, Sch 1, Pt 1[37].
S 1317C amended by No 118 of 2012, s 3, Sch 1, Pt 1
[
5].
S 1317C amended by No 48 of 2012, s 3, Sch 1, Pt 1
[
4].
S 1317C amended by No 26 of 2010, s 3, Sch 1[24].
S 1317C amended by No 103 of 2004, s 3, Sch 2, Pt 3
[
15].
S 1317C amended by No 103 of 2004, s 3, Sch 6, Pt 2[8].
S 1317C amended by No 122 of 2001, s 3, Sch 1, Pt 2
[
435].
SECTION 1317D
NOTICE OF REVIEWABLE DECISION AND REVIEW RIGHTS
1317D(1)
This section applies if the Minister, ASIC, the Companies Auditors Disciplinary Board or a committee convened under Part 2 of Schedule
2
(the
decision maker
) makes a decision to which section
1317B
applies.
[
CCH Note:
S 1317D(1) will be amended by No 69 of 2020, s 3, Sch 1[1270], by inserting
"
the Registrar,
"
after
"
ASIC,
"
, (effective 1 July 2026 or a day or days to be fixed by Proclamation).]
History
S 1317D(1) amended by No 11 of 2016, s 3, Sch 2[252].
1317D(2)
Subject to subsection (3), the decision maker must take such steps as are reasonable in the circumstances to give to each person whose interests are affected by the decision notice, in writing or otherwise:
(a)
of the making of the decision; and
(b)
of the person
'
s right to have the decision reviewed by the Tribunal.
1317D(3)
Subsection (2) does not require the decision maker to give notice to a person affected by the decision or to the persons in a class of persons affected by the decision, if the decision maker determines that giving notice to the person or persons is not warranted, having regard to:
(a)
the cost of giving notice to the person or persons; and
(b)
the way in which the interests of the person or persons are affected by the decision.
1317D(4)
A failure to comply with this section does not affect the validity of the decision.
1317D(5)
The fact that a person has not been given notice of the decision because of a determination under subsection (3) constitutes special circumstances for the purposes of subsection 29(6) of the
Administrative Appeals Tribunal Act 1975
.