Administrative Appeals Tribunal Act 1975
View history note
Hide history noteS 21AB(3) amended by No 108 of 2014.
Pt III substituted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act. Pt III formerly read:
PART III - ORGANISATION OF THE TRIBUNAL
Division 1 - Divisions of the Tribunal
SECTION 19 DIVISIONS OF THE TRIBUNAL
19(1)
The Tribunal shall exercise powers conferred on it in Divisions of the Tribunal in accordance with this section.
19(2) Divisions of the Tribunal.The Divisions of the Tribunal are as follows:
(a) General Administrative Division;
(b) Medical Appeals Division;
(baaa) National Disability Insurance Scheme Division;
(baa) Security Appeals Division;
(ba) Taxation Appeals Division;
(c) Valuation and Compensation Division; and
(d) such other Divisions as are prescribed.HistoryS 19(2) amended by No 44 of 2013, Sch 2 items 1 - 2, by inserting para (baaa) and omitting " and " in para (c), effective 29 May 2013.
S 19(2) amended by No 48 of 1986, s 4; by No 175 of 1995, s 3, Sch 1.
19(3) Assignment of non-presidential member to Division or Divisions.The Minister must assign a non-presidential member to a particular Division or Divisions of the Tribunal and may, with the consent of the member but not otherwise, vary the assignment.
HistoryS 19(3) substituted by No 38 of 2005. No 38 of 2005, Sch 1 [ 37], provides:
Transitional - subsection 19(3) of the Administrative Appeals Tribunal Act 1975
37(1)
This item applies if the assignment of a non-presidential member to a particular Division or Divisions of the Tribunal was in force immediately before the commencement of this item.
37(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Minister had, immediately after that commencement, assigned the member to that Division or those Divisions under subsection 19(3) of that Act.
37(3)
To avoid doubt, the Minister is not bound by the member's instrument of appointment in exercising a power conferred by subsection 19(3) of the Administrative Appeals Tribunal Act 1975 .
For further transitional provisions see note under s 2A .
19(3AA)
Before the Minister exercises a power conferred by subsection (3), the Minister must consult the President.HistoryS 19(3AA) inserted by No 38 of 2005. For transitional provisions see note under s 2A .
19(3A) Taxation Appeals Division.A member shall not be assigned to the Taxation Appeals Division unless the Minister has consulted with the Treasurer in relation to the assignment of the member.
HistoryS 19(3A) inserted by No 48 of 1986.
19(3B) Security Appeals Division.A non-presidential member must not be assigned to the Security Appeals Division if he or she is, or has been, the Director-General of Security or an ASIO employee or ASIO affiliate.
HistoryS 19(3B) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting " an ASIO employee or ASIO affiliate " for " an officer, employee or agent of the Australian Security Intelligence Organisation " , effective 30 October 2014.
S 19(3B) inserted by No 175 of 1995; amended by No 161 of 1999.
National Disability Insurance Scheme Division
19(3C)
A member must not be assigned to the National Disability Insurance Scheme Division unless the Minister has consulted with the Minister responsible for administering the National Disability Insurance Scheme Act 2013 in relation to the assignment of the member.HistoryS 19(3C) inserted by No 44 of 2013, Sch 2 item 3, effective 29 May 2013.
19(3D)
A non-presidential member must not be assigned to the National Disability Insurance Scheme Division unless the Minister is satisfied that the non presidential member:
(a) has training, knowledge or experience relating to disability; or
(b) has other relevant knowledge or experience that will assist the non-presidential member in considering matters relating to the National Disability Insurance Scheme.HistoryS 19(3D) inserted by No 44 of 2013, Sch 2 item 3, effective 29 May 2013.
19(4) Exercise of powers.A non-presidential member shall exercise, or participate in the exercise of, the powers of the Tribunal only in the Division or Divisions of the Tribunal to which he or she is assigned.
HistoryS 19(4) amended by No 175 of 1995.
19(5) Validity.The foregoing provisions of this section do not affect the validity of any exercise of powers by the Tribunal otherwise than in accordance with those provisions.
19(6) Certain powers to be exercised in Security Appeals Division.The following powers conferred on the Tribunal:
(a) the powers of review in respect of applications made under section 54 of the Australian Security Intelligence Organisation Act 1979 ;
(b) the power under the Archives Act 1983 to review a decision of the Australian Archives in respect of access to a record of the Australian Security Intelligence Organisation;may be exercised by the Tribunal only in the Security Appeals Division.
HistoryS 19(6) inserted by No 175 of 1995; amended by No 161 of 1999.
Division 2 - Arrangement of business of the Tribunal
SECTION 20 ARRANGEMENT OF BUSINESS
20(1)
Subject to this Act and to the regulations, the President is responsible for ensuring the expeditious and efficient discharge of the business of the Tribunal.HistoryS 20(1) amended by No 38 of 2005. For transitional provisions see note under s 2A .
S 20(1) substituted by No 31 of 1993.
20(1A)
(Repealed by No 38 of 2005)HistoryS 20(1A) repealed by No 38 of 2005. For transitional provisions see note under s 2A .
20(2) President may give directions.The President may give directions as to:
(a) the operations of the Tribunal generally; and
(b) the operations of the Tribunal at a particular place; and
(c) the procedure of the Tribunal generally; and
(d) the procedure of the Tribunal at a particular place; and
(e) the conduct of reviews by the Tribunal.HistoryS 20(2) substituted by No 38 of 2005. No 38 of 2005, Sch 1 [ 41], provides:
Transitional - subsection 20(2) of the Administrative Appeals Tribunal Act 1975
41(1)
This item applies to a direction if:
(a) the direction was given for the purposes of paragraph 20(1A)(d) or (e) of the Administrative Appeals Tribunal Act 1975 ; and
(b) the direction was in force immediately before the commencement of this item.
41(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20(2) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A .
S 20(2) substituted by No 58 of 1977; amended by No 175 of 1995; substituted by No 38 of 2005.
20(3)
Subsection (2) does not limit subsection (1).HistoryS 20(3) amended by No 38 of 2005. For transitional provisions see note under s 2A .
S 20(3) substituted by No 58 of 1977.
20(4)
The President may give directions as to:
(a) the arrangement of the business of the Tribunal; and
(b) the places at which the Tribunal may sit.HistoryS 20(4) inserted by No 38 of 2005. No 38 of 2005, Sch 1 [ 42], provides:
Transitional - subsection 20(4) of the Administrative Appeals Tribunal Act 1975
42(1)
This item applies to a direction if:
(a) the direction was given for the purposes of paragraph 20(1A)(a) or (c) of the Administrative Appeals Tribunal Act 1975 ; and
(b) the direction was in force immediately before the commencement of this item.
42(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20(4) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A .
20(5)
Subsection (4) does not limit subsection (1).HistoryS 20(5) inserted by No 38 of 2005. For transitional provisions see note under s 2A .
20(6)
The President may at any time vary or revoke a direction under this section.HistoryS 20(6) inserted by No 38 of 2005. For transitional provisions see note under s 2A .
SECTION 20A SECTION 20A PLACES OF SITTING
20A
Sittings of the Tribunal are to be held from time to time as required at the places at which the Registries of the Tribunal are established, but the Tribunal may sit at any place in Australia or in an external Territory.HistoryS 20A inserted by No 38 of 2005. For transitional provisions see note under s 2A .
Division 3 - Constitution and reconstitution of the Tribunal
SECTION 20B PRESIDENT MAY GIVE DIRECTIONS AS TO CONSTITUTION OF TRIBUNAL
20B(1)
The President may give directions as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding.Note: See also section 23B .
20B(2)
If the President gives a direction as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding, he or she may at any time after the giving of the direction and before the commencement of the hearing of the proceeding:
(a) revoke the direction; and
(b) give a further direction under subsection (1) as to the persons who are to constitute the Tribunal for the purposes of the proceeding.
SECTION 21 CONSTITUTION OF TRIBUNAL FOR EXERCISE OF POWERSHistoryS 20B inserted by No 38 of 2005. No 38 of 2005, Sch 1 [ 45], provides:
Transitional - section 20B of the Administrative Appeals Tribunal Act 1975
45(1)
This item applies to a direction if:
(a) the direction was given for the purposes of paragraph 20(1A)(b) or subsection 20(2) of the Administrative Appeals Tribunal Act 1975 ; and
(b) the direction was in force immediately before the commencement of this item.
45(2)
The direction has effect, after the commencement of this item, as if it had been given under subsection 20B(1) of the Administrative Appeals Tribunal Act 1975 as amended by this Schedule.
For further transitional provisions see note under s 2A .
21(1AAA) Scope.This section does not apply in relation to proceedings in the Security Appeals Division.
HistoryS 21(1AAA) inserted by No 175 of 1995.
21(1) Constitution of Tribunal.Subject to subsections (1AA) and (1A) and to any other provision made in this Act or in any other enactment with respect to the constitution of the Tribunal in relation to a particular proceeding, the Tribunal is, for the purposes of a proceeding, to be constituted by not more than 3 members.
HistoryS 21(1) amended by No 38 of 2005. For transitional provisions see note under s 2A .
S 21(1) substituted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 175 of 1995.
21(1AA)
The Tribunal as constituted for the purposes of a proceeding must not include more than one presidential member who is a judge.HistoryS 21(1AA) inserted by No 175 of 1995.
21(1AB)
(Repealed by No 38 of 2005)HistoryS 21(1AB) repealed by No 38 of 2005. For transitional provisions see note under s 2A .
21(1A)
For the purpose of the exercise of the powers of the Tribunal under subsection 29(4), (7) or (9) or 30(1A), section 31, subsection 34D(1), 35(2) or 37(1A), (1C) or (2), section 38, subsection 41(2) or (3), section 42A or 42B, subsection 42C(1) or section 69A or 69B, the Tribunal shall be constituted -
(a) where the hearing of the relevant proceeding has not commenced - by a presidential member or an authorised member; or
(b) where the hearing of the relevant proceeding has commenced - by the members by whom the Tribunal is constituted for the purposes of that proceeding.HistoryS 21(1A) amended by No 38 of 2005. No 38 of 2005, Sch 1 [ 51], provides:
Transitional - paragraph 21(1A)(a) of the Administrative Appeals Tribunal Act 1975
The amendment made by item 50 does not apply to a proceeding if, immediately before the commencment of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.For further transitional provisions see note under s 2A .
S 21(1A) inserted by No 58 of 1977; amended by No 143 of 1979; No 26 of 1982; No 31 of 1993; No 175 of 1995.
21(2)
Where, before the commencement of the hearing of a proceeding before the Tribunal, there is lodged with the Tribunal, as prescribed, a notice, signed by or on behalf of all the parties, stating that they have agreed that the proceeding should be dealt with by the Tribunal constituted by a presidential member alone, the Tribunal may, if the President directs under section 20B, be constituted for the purposes of that proceeding by a presidential member alone.HistoryS 21(2) amended by No 38 of 2005. No 38 of 2005, Sch 1 [ 54], provides:
Transitional - subsection 21(2) of the Administrative Appeals Tribunal Act 1975
54(1)
This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member, for the purposes of the proceeding, in accordance with subsection 21(2) of the Administrative Appeals Tribunal Act 1975 .
54(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member, for the purposes of the proceeding, in accordance with a direction given under section 20B of that Act.
54(3)
Subitem (2) does not prevent the reconstitution of the Tribunal.
For further transitional provisions see note under s 2A .
21(3)
(Repealed by No 38 of 2005)HistoryS 21(3) repealed by No 38 of 2005. No 38 of 2005, Sch 1 [ 56], provides:
Transitional - subsections 21(3) and (4) of the Administrative Appeals Tribunal Act 1975
The amendment made by item 55 does not apply to a proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the proceeding by one or more members.For further transitional provisions see note under s 2A .
21(4)
(Repealed by No 38 of 2005)HistoryS 21(4) repealed by No 38 of 2005. For transitional provisions see note under s 21(3). For further transitional provisions see note under s 2A .
SECTION 21AA CONSTITUTION OF SECURITY APPEALS DIVISION - GENERAL
21AA(1) Scope.This section applies to a proceeding in the Security Appeals Division (other than a proceeding to which section 21AB applies) but has effect subject to subsection 65(2) of the Australian Security Intelligence Organisation Act 1979 .
HistoryS 21AA(1) amended by No 99 of 2009, s 3 and Sch 3 item 1, by inserting " (other than a proceeding to which section 21AB applies) " after " Security Appeals Division " , effective 7 October 2009.
S 21AA(1) inserted by No 175 of 1995; amended by No 161 of 1999.
21AA(2) Constitution of Security Appeals Division.Subject to this section, the Security Appeals Division is to be constituted by a presidential member and 2 other members.
HistoryS 21AA(2) inserted by No 175 of 1995.
21AA(3) When presidential member must not participate.A presidential member must not participate in the proceeding if he or she is, or has been, the Director-General of Security or an ASIO employee or ASIO affiliate.
HistoryS 21AA(3) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting " an ASIO employee or ASIO affiliate " for " an officer, employee or agent of the Australian Security Intelligence Organisation " , effective 30 October 2014.
S 21AA(3) inserted by No 175 of 1995; amended by No 161 of 1999.
21AA(4) Presidential member to preside.The presidential member referred to in subsection (2) is to preside at a hearing of the proceeding.
HistoryS 21AA(4) inserted by No 175 of 1995.
21AA(5) Qualifications.If the proceeding is a review of a security assessment, at least one of the 2 other members referred to in subsection (2) must:
(a) if the matter to which the assessment related concerns employment or proposed employment in the Australian Public Service - be a former member of that Service; or
(b) if the matter to which the assessment related concerns service or proposed service in the Defence Force - be a former member of that Force; or
(c) if the matter to which the assessment related concerns the Australian Citizenship Act 2007 , the Migration Act 1958 or the Australian Passports Act 2005 - be a person with knowledge of, or experience in relation to, the needs and concerns of people who are or have been immigrants; or
(d) if the matter to which the assessment related concerns employment under Commonwealth contractors - be a person with experience in relation to such employment; or
(e) in any other case - be a person with knowledge of, or experience in relation to, matters of the kind to which the assessment related.HistoryS 21AA(5) amended by No 21 of 2007, s 3 and Sch 1 item 1, by substituting " Australian Citizenship Act 2007 " for " Australian Citizenship Act 1948 " , effective 1 July 2007.
No 21 of 2007, s 3 and Sch 3 item 15 contained the following transitional provision:
15 Transitional - Administrative Appeals Tribunal Act 1975
If, on or after the commencement day, there are proceedings of the Administrative Appeals Tribunal to which paragraph 21AA(5)(c) of the Administrative Appeals Tribunal Act 1975 applies and which relate to the old Act, the amendment made by item 1 of Schedule 1 is, for the purposes of those proceedings, taken not to have been made.S 21AA(5) amended by No 7 of 2005; inserted by No 175 of 1995.
21AA(6) What happens if member ceases to be available.If, before the proceeding has been completed, one of the members constituting the Division for the purposes of the proceeding has ceased to be available for the purposes of the proceeding:
(a) the proceeding is to be reheard by the Division as reconstituted in accordance with this section; and
(b) on the rehearing, the members of the Division may have regard to any record of the proceeding in the Division as previously constituted, including a record of any evidence taken in the proceeding.SECTION 21AB CONSTITUTION OF SECURITY APPEALS DIVISION - PROCEEDINGS TO REVIEW CERTAIN DECISIONS UNDER THE ARCHIVES ACT 1983HistoryS 21AA(6) inserted by No 175 of 1995.
Scope
21AB(1)
This section applies to a proceeding in the Security Appeals Division in relation to a review of a decision of the Australian Archives under the Archives Act 1983 refusing to grant access to a record in accordance with an application under section 40 of that Act, being a record that is:
(a) a record of the Australian Security Intelligence Organisation; and
(b) claimed to be an exempt record for the reason that it contains information or matter of a kind referred to in paragraph 33(1)(a) or (b) of that Act.
Constitution of Security Appeals Division
21AB(2)
Subject to this section, the Security Appeals Division is to be constituted by:
(a) 3 presidential members; or
(b) a presidential member alone.
When presidential member must not participate
21AB(3)
A presidential member must not participate in the proceeding if he or she is, or has been, the Director-General of Security or an ASIO employee or ASIO affiliate.HistoryS 21AB(3) amended by No 108 of 2014, s 3 and Sch 1 item 32, by substituting " an ASIO employee or ASIO affiliate " for " an officer, employee or agent of the Australian Security Intelligence Organisation " , effective 30 October 2014.
Reconstitution of Division at the request of a party
21AB(4)
At any time during the hearing of a proceeding before the Division, constituted by a presidential member alone, a party to the proceeding may apply to the Division as constituted for the purposes of the proceeding requesting that the Division be reconstituted for the purposes of the proceeding.
21AB(5)
If an application is made under subsection (4), the Division as constituted for the purposes of the proceeding must, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.
21AB(6)
The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Division as constituted for the purposes of the proceeding be reconstituted by 3 presidential members.
21AB(7)
If a direction is given under subsection (6), the Division as reconstituted in accordance with the direction must continue the proceeding and may either:
(a) complete the proceeding; or
(b) at any time remit the proceeding to the Division as previously constituted for completion by the Division as previously constituted.
21AB(8)
If the Division as reconstituted remits a proceeding to the Division as previously constituted, the Division as reconstituted may give directions in relation to the proceeding to the Division as previously constituted and the Division as previously constituted must, in making a decision on the review, comply with those directions.
Member presiding
21AB(9)
At the hearing of a proceeding before the Division at which the Division is constituted for the purposes of the proceeding by presidential members:
(a) if the President is a member of the Division as so constituted - he or she is to preside; or
(b) if the President is not a member of the Division as so constituted, but only one presidential member who is a Judge is a member of the Division as so constituted - that presidential member is to preside; or
(c) if the President is not a member of the Division as so constituted, but 2 or more presidential members who are Judges are members of the Division as so constituted - the senior Judge is to preside; or
(d) if neither the President, nor a Judge is a member of the Division as so constituted - a Deputy President of the Division as so constituted who is directed by the President to do so is to preside.
What happens if member ceases to be available
21AB(10)
If, before the proceeding has been completed, one of the members constituting the Division for the purposes of the proceeding has ceased to be available for the purposes of the proceeding the proceeding is to be reheard by the Division as reconstituted in accordance with this section.
Regard may be had to record of previous proceeding
21AB(11)
If the Division:
(a) is reconstituted in accordance with a direction under subsection (6); or
(b) is reconstituted because proceedings are remitted under paragraph (7)(b) to the Division as previously constituted; or
(c) is reconstituted under subsection (10) because a member ceases to be available;the members of the Division may have regard to any record of the proceeding in the Division as previously constituted, including a record of any evidence taken in the proceeding.
SECTION 21A RECONSTITUTION OF TRIBUNAL AT THE REQUEST OF A PARTYHistoryS 21AB inserted by No 99 of 2009, s 3 and Sch 3 item 2, effective 7 October 2009.
21A(1AA) Scope.This section does not apply in relation to proceedings in the Security Appeals Division.
HistoryS 21A(1AA) inserted by No 175 of 1995.
21A(1) Party may request reconstitution of Tribunal.At any time during the hearing of a proceeding before the Tribunal (other than a proceeding in which the Tribunal is constituted by a presidential member who is a Judge and 2 other members), a party to the proceeding may apply to the Tribunal as constituted for the purposes of the proceeding requesting that the Tribunal be reconstituted for the purposes of the proceeding.
HistoryS 21A(1) inserted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 34 of 1997.
21A(2)
Upon the making of an application under subsection (1), the Tribunal as constituted for the purposes of the proceeding shall, after receiving the submissions made in support of the application and any submissions made in opposition to the application, notify the President of the making of the application and give him or her particulars of those submissions.HistoryS 21A(2) amended by No 38 of 2005. For transitional provisions see note under s 2A .
S 21A(2) inserted by No 58 of 1977; amended by No 175 of 1995.
21A(3)
The President may, after taking the submissions into account, if he or she considers that the matters to which the proceeding relates are of such public importance as to justify him or her in so doing, give a direction that the Tribunal as constituted for the purposes of the proceeding be reconstituted by:
(a) adding one or more members; or
(b) removing one or more members; or
(c) substituting one or more other members;(or any combination of these).
HistoryS 21A(3) amended by No 38 of 2005. No 38 of 2005, Sch 1 [ 59], provides:
Transitional - subsection 21A(3) of the Administrative Appeals Tribunal Act 1975
The amendment of subsection 21A(3) of the Administrative Appeals Tribunal Act 1975 made by this Schedule does not affect the continuity of a direction that was given under that subsection before the commencement of this item.For further transitional provisions see note under s 2A .
S 21A(3) inserted by No 58 of 1977; amended by No 26 of 1982; No 31 of 1993; substituted by No 175 of 1995.
21A(4)
Where a direction is so given, the Tribunal as reconstituted in accordance with the direction shall continue the proceeding and may either -
(a) complete the proceeding; or
(b) at any time remit the proceeding to the Tribunal as previously constituted for completion by the Tribunal as previously constituted.Note:
Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.
HistoryS 21A(4) amended by No 38 of 2005. For transitional provisions see note under s 2A .
S 21A(4) inserted by No 58 of 1977.
21A(5)
Where the Tribunal as reconstituted so remits a proceeding to the Tribunal as previously constituted, the Tribunal as reconstituted may give directions in relation to the proceeding to the Tribunal as previously constituted and the Tribunal as previously constituted shall, in making a decision on the review, comply with those directions.HistoryS 21A(5) inserted by No 58 of 1977.
21A(6)
(Repealed by No 38 of 2005)HistoryS 21A(6) repealed by No 38 of 2005. For transitional provisions see note under s 2A .
21A(7)
Where, by virtue of subsection (4), a proceeding is remitted by the Tribunal as reconstituted to the Tribunal as previously constituted, the Tribunal as previously constituted may, for the purposes of that proceeding, have regard to any record of the proceeding before the Tribunal as reconstituted including a record of any evidence taken under the proceeding.HistoryS 21A(7) inserted by No 58 of 1977.
SECTION 22 MEMBER PRESIDING
22(1AA) Scope.This section does not apply in relation to proceedings in the Security Appeals Division.
HistoryS 22(1AA) inserted by No 175 of 1995, s 3, Sch 1.
22(1) Multiple member Tribunal - who is to preside.At the hearing of a proceeding before the Tribunal at which the Tribunal is constituted for the purposes of the proceeding by more than one member -
(a) if the President is a member of the Tribunal as so constituted - he or she shall preside;
(aa) if the President is not a member of the Tribunal as so constituted, but a presidential member who is a Judge is a member of the Tribunal as so constituted - that presidential member shall preside;
(ab) if a presidential member who is a Judge is not a member of the Tribunal as so constituted but 2 or more Deputy Presidents are members of the Tribunal as so constituted - one of those Deputy Presidents who is directed by the President to do so is to preside;
(b) if a presidential member who is a Judge is not a member of the Tribunal as so constituted, but a Deputy President is a member of the Tribunal as so constituted - that Deputy President shall preside; or
(c) if the Tribunal is constituted only by non-presidential members -
(i) where one only of those non-presidential members is a senior member - he or she shall preside;
(ii) where 2 or more of those non-presidential members are senior members - one of those senior members who is directed by the President to do so shall preside; or
(iii) where none of those non-presidential members is a senior member - one of those non-presidential members who is directed by the President to do so shall preside.HistoryS 22(1) substituted by No 58 of 1977, s 13; amended by No 26 of 1982, s 19; No 31 of 1993, s 7; No 175 of 1995, Sch 3.
22(2) Reconstituted Tribunal - who is to preside.In a case where a direction is given under subsection 20B(2), section 21A, subsection 23(3) or (4) or section 23A reconstituting the Tribunal for the purposes of a proceeding, any necessary direction may be given under this section as to the member who is to preside at the hearing of the proceeding by the Tribunal as reconstituted.
SECTION 23 RECONSTITUTION OF TRIBUNAL IF MEMBER IS UNAVAILABLEHistoryS 22(2) substituted by No 58 of 1977, s 13.
S 22(2) amended by No 38 of 2005. No 38 of 2005, Sch 1 [ 65], provides:
Transitional - subsection 22(2) of the Administrative Appeals Tribunal Act 1975
The amendments of subsection 22(2) of the Administrative Appeals Tribunal Act 1975 made by this Schedule do not affect the continuity of a direction that was given under that subsection before the commencement of this item.For further transitional provisions see note under s 2A .
23(1) Scope.This section does not apply in relation to a proceeding in the Security Appeals Division.
HistoryS 23(1) substituted by No 38 of 2005. No 38 of 2005, Sch 1 [ 67], provides:
Transitional - paragraph 23(1)(a) of the Administrative Appeals Tribunal Act 1975
67(1)
This item applies to a proceeding before the Tribunal if, immediately before the commencement of this item, the Tribunal was constituted by a particular member or members, for the purposes of the proceeding, in accordance with paragraph 23(1)(a) of the Administrative Appeals Tribunal Act 1975 .
67(2)
The Administrative Appeals Tribunal Act 1975 has effect, after the commencement of this item, as if the Tribunal had been constituted by that member or those members, for the purposes of the proceeding, in accordance with a direction given under subsection 20B(1) of that Act.
67(3)
Subitem (2) does not prevent the reconstitution of the Tribunal.
For further transitional provisions see note under s 2A .
23(2)
This section applies if:
(a) the hearing of a proceeding has commenced or is completed; and
(b) a member (the unavailable member ) who constitutes, or is one of the members who constitute, the Tribunal for the purposes of the proceeding:
(i) stops being a member; or
(ii) for any reason, is not available for the purposes of the proceeding; or
(iii) is directed by the President not to continue to take part in the proceeding.
23(3) Single member Tribunal.If the unavailable member constitutes the Tribunal, the President must direct another member or members to constitute the Tribunal for the purposes of completing the proceeding.
23(4) Multiple member Tribunal.If the unavailable member is one of the members who constitute the Tribunal, the President must:
(a) direct the remaining member or members to constitute the Tribunal for the purposes of completing the proceeding; or
(b) direct a member or members to constitute the Tribunal for the purposes of completing the proceeding.Note: See also section 23B .
23(5)
A member who is the subject of a direction under paragraph (4)(b) may be the remaining member or one of the remaining members.
23(6) Member who stops being a member and becomes a member again.For the purposes of this section, a member who:
(a) stops being a member; and
(b) at a later time becomes a member again;is taken, from that later time, to be another member.
23(7) Reconstituted Tribunal must continue proceeding.The Tribunal as reconstituted in accordance with a direction under subsection (3) or (4) must continue the proceeding.
Note: Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.
23(8) Limitations on President's powers to give directions.The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1) .
23(9)
The President must not give a direction under subparagraph (2)(b)(iii) unless:
(a) the President is satisfied that the direction is in the interests of justice; and
(b) the President has consulted the member concerned.
23(10)
The President must not give a direction under subsection (3) or (4) unless the President has consulted the parties to the proceeding.
23(11)
The President must not give a direction under paragraph (4)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of completing the proceeding unless:
(a) the President is satisfied that the direction is in the interests of justice; and
(b) the President has consulted the remaining member concerned.
23(12)
In determining whether a direction covered by subsection (9) or (11) is in the interests of justice, the President must have regard to the objective of proceedings that are conducted in a manner that is fair, just, economical, informal and quick.HistoryS 23 substituted by No 38 of 2005. For transitional provisions see note under s 2A .
SECTION 23A RECONSTITUTION OF TRIBUNAL TO ACHIEVE EXPEDITIOUS AND EFFICIENT CONDUCT OF PROCEEDING
23A(1) Scope.This section does not apply in relation to a proceeding in the Security Appeals Division.
23A(2) Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding.If the hearing of a proceeding has commenced or is completed, the President may direct that the Tribunal as constituted for the purposes of a particular proceeding be reconstituted by:
(a) adding one or more members; or
(b) removing one or more members; or
(c) substituting one or more other members;(or any combination of these) if the President thinks that the reconstitution is in the interests of achieving the expeditious and efficient conduct of the proceeding.
Note: See also section 23B .
23A(3) Reconstituted Tribunal must continue proceeding.The Tribunal as constituted in accordance with a direction under subsection (2) must continue the proceeding.
Note: Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.
23A(4) Limitations on President's power to give direction.The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1) .
23A(5)
The President must not give a direction under this section unless the President has consulted the parties to the proceeding.
HistoryS 23A substituted by No 38 of 2005. For transitional provisions see note under s 2A .
S 23A inserted by No 175 of 1995.
SECTION 23B SECTION 23B MATTERS TO WHICH THE PRESIDENT MUST HAVE REGARD IN CONSTITUTING THE TRIBUNAL
23B
In giving a direction under section 20B , 23 or 23A as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding, the President must have regard to:
(a) the degree of public importance or complexity of the matters to which that proceeding relates; and
(b) the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and
(c) the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and
(d) the degree of financial importance of the matters to which that proceeding relates; and
(e) if that proceeding relates to the review of a decision made in the exercise of powers conferred by a particular enactment - the purpose or object underlying the enactment (whether or not that purpose or object is expressly stated); and
(f) the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have knowledge, expertise or experience in relation to the matters to which that proceeding relates; and
(g) any notice given under subsection 21(2) by the parties to that proceeding; and
(h) such other matters (if any) as the President considers relevant.SECTION 23C LIMITATION ON COMPOSITION OF RECONSTITUTED TRIBUNALHistoryS 23B substituted by No 38 of 2005. For transitional provisions see note under s 2A .
S 23B inserted by No 175 of 1995.
23C(1) Scope.This section does not apply in relation to a proceeding in the Security Appeals Division.
23C(2) Limitation on composition of reconstituted Tribunal.A direction relating to the reconstitution of the Tribunal must not be given unless the member or members who constitute the reconstituted Tribunal could have constituted the Tribunal for the purposes of the proceeding if the proceeding had commenced immediately before the direction was given.
SECTION 23D TRIBUNAL MAY HAVE REGARD TO RECORD OF PREVIOUS PROCEEDINGHistoryS 23C inserted by No 38 of 2005. For transitional provisions see note under s 2A .
23D(1) Scope.This section does not apply in relation to a proceeding in the Security Appeals Division.
23D(2) Tribunal may have regard to record of previous proceeding.If the Tribunal is reconstituted, the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).
23D(3)
Subsection (2) does not apply in a case where the Tribunal is reconstituted following an order under subsection 44(4) remitting a case to be heard and decided again.Note 1: Subsection 44AA(9) applies subsection 44(4) to appeals transferred to the Federal Circuit Court of Australia.
Note 2: Paragraph 44(6)(b) deals with a proceeding reheard by the Tribunal following an appeal.
SECTION 23E CONSTITUTION OF TRIBUNAL FOR REVIEW OF AMOUNT TAXED - GENERAL RULEHistoryS 23D amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting " Federal Circuit Court of Australia " for " Federal Magistrates Court " wherever occurring, effective 12 April 2013.
S 23D inserted by No 38 of 2005. No 38 of 2005, Sch 1 [ 68], provides:
Transitional - section 23D of the Administrative Appeals Tribunal Act 1975
Section 23D of the Administrative Appeals Tribunal Act 1975 applies in relation to a reconstitution of the Tribunal before or after the commencement of this item.For further transitional provisions see note under s 2A .
23E(1) Scope.This section applies to a proceeding (the taxing review proceeding ) by way of an application to the Tribunal under subsection 69A(2) for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid by a party to another proceeding (the substantive proceeding ).
23E(2) Constitution of Tribunal for taxing review proceeding.For the purposes of the taxing review proceeding, the Tribunal is to be constituted by:
(a) if the Tribunal was constituted for the purposes of the substantive proceeding by a single member - that member; or
(b) if the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members - the member who presided for the purposes of the substantive proceeding.
23E(3)
This section has effect subject to section 23F .
SECTION 23F CONSTITUTION OF TRIBUNAL FOR REVIEW OF AMOUNT TAXED - MEMBER UNAVAILABLEHistoryS 23E inserted by No 38 of 2005. No 38 of 2005, Sch 1 [ 69], provides:
Application of amendment - sections 23E and 23F of the Administrative Appeals Tribunal Act 1975
Sections 23E and 23F of the Administrative Appeals Tribunal Act 1975 do not apply to a taxing review proceeding if, immediately before the commencement of this item, the Tribunal was constituted for the purposes of the taxing review proceeding by one or more members.For further transitional provisions see note under s 2A .
23F(1) Scope.This section applies to a proceeding (the taxing review proceeding ) by way of an application to the Tribunal under subsection 69A(2) for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid by a party to another proceeding (the substantive proceeding ) if:
(a) in a case where the Tribunal was constituted for the purposes of the substantive proceeding by a single member - that member (the unavailable member ):
(i) has stopped being a member; or
(ii) for any reason, is not available to take part in the taxing review proceeding; or
(iii) is directed by the President not to take part in the taxing review proceeding; or
(b) in a case where the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members - the member (the unavailable member ) who presided at the substantive proceeding:
(i) has stopped being a member; or
(ii) for any reason, is not available to take part in the taxing review proceeding; or
(iii) is directed by the President not to take part in the taxing review proceeding.
23F(2) Single member Tribunal.If the unavailable member constituted the Tribunal for the purposes of the substantive proceeding, the President must direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.
23F(3) Multiple member Tribunal.If the unavailable member is one of the members who constituted the Tribunal for the purposes of the substantive proceeding, the President must:
(a) direct the remaining member, or one of the remaining members, to constitute the Tribunal for the purposes of the taxing review proceeding; or
(b) direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.
23F(4) Member who stops being a member and becomes a member again.For the purposes of this section, a member who:
(a) stops being a member; and
(b) at a later time becomes a member again;is taken, from that later time, to be another member.
23F(5) Limitations on President's powers to give directions.The President must not give a direction under subparagraph (1)(a)(iii) or (b)(iii) unless the President is satisfied that the direction is in the interests of justice.
23F(6)
The President must not give a direction under paragraph (3)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of the taxing review proceeding unless the President is satisfied that the direction is in the interests of justice.
SECTION 24 (PLACES OF SITTING)History
24
(Repealed by No 38 of 2005)HistoryS 24 repealed by No 38 of 2005. For transitional provisions see note under s 2A .
Subdiv A inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
The Tribunal as constituted for the purposes of a proceeding: (a) must not have more than 3 members, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding; and (b) must not have more than one member who is a Judge, unless another provision of this Act or another enactment provides otherwise in relation to the proceeding.
S 19B(1) amended by No 3 of 2022, s 3 and Sch 1 item 29, by inserting " , unless another provision of this Act or another enactment provides otherwise in relation to the proceeding " in para (b), applicable in relation to the constituting (or reconstituting) of the Tribunal on or after 18 February 2022.
19B(2)
At any time before the hearing of a proceeding commences, the powers of the Tribunal in relation to the proceeding may be exercised by the President or an authorised member.
19B(3)
Subsection (2) does not apply in relation to the following powers: (a) the power under section 34J (circumstances in which hearing may be dispensed with); (b) the power under section 43 (Tribunal ' s decision on review); (c) the power under section 59 (advisory opinions); (d) a power that a provision of this Act (except this section) or another enactment requires or permits to be exercised by:
(i) one or more persons specified by the provision; or
(ii) the Tribunal constituted in a way specified by the provision.
Note:
Examples of powers covered by subparagraph (3)(d)(i) are the powers under sections 19A , 33 and 43AA . Examples of powers covered by subparagraph (3)(d)(ii) are the powers under section 19C .
19B(4)
This section does not apply in relation to a proceeding in the Security Division (see Subdivision B ).
S 19B inserted by No 60 of 2015, s 3 and Sch 1 item 27, effective 1 July 2015. For transitional and saving provisions, see note under the title of the Act.
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