Administrative Appeals Tribunal Amendment Act 2005 (38 of 2005)

Schedule 1   Amendments

Administrative Appeals Tribunal Act 1975

66   Sections 23, 23A and 23B

Repeal the sections, substitute:

23 Reconstitution of Tribunal if member is unavailable

Scope

(1) This section does not apply in relation to a proceeding in the Security Appeals Division.

(2) This section applies if:

(a) the hearing of a proceeding has commenced or is completed; and

(b) a member (the unavailable member ) who constitutes, or is one of the members who constitute, the Tribunal for the purposes of the proceeding:

(i) stops being a member; or

(ii) for any reason, is not available for the purposes of the proceeding; or

(iii) is directed by the President not to continue to take part in the proceeding.

Single member Tribunal

(3) If the unavailable member constitutes the Tribunal, the President must direct another member or members to constitute the Tribunal for the purposes of completing the proceeding.

Multiple member Tribunal

(4) If the unavailable member is one of the members who constitute the Tribunal, the President must:

(a) direct the remaining member or members to constitute the Tribunal for the purposes of completing the proceeding; or

(b) direct a member or members to constitute the Tribunal for the purposes of completing the proceeding.

Note: See also section 23B.

(5) A member who is the subject of a direction under paragraph (4)(b) may be the remaining member or one of the remaining members.

Member who stops being a member and becomes a member again

(6) For the purposes of this section, a member who:

(a) stops being a member; and

(b) at a later time becomes a member again;

is taken, from that later time, to be another member.

Reconstituted Tribunal must continue proceeding

(7) The Tribunal as reconstituted in accordance with a direction under subsection (3) or (4) must continue the proceeding.

Note: Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.

Limitations on President's powers to give directions

(8) The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1).

(9) The President must not give a direction under subparagraph (2)(b)(iii) unless:

(a) the President is satisfied that the direction is in the interests of justice; and

(b) the President has consulted the member concerned.

(10) The President must not give a direction under subsection (3) or (4) unless the President has consulted the parties to the proceeding.

(11) The President must not give a direction under paragraph (4)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of completing the proceeding unless:

(a) the President is satisfied that the direction is in the interests of justice; and

(b) the President has consulted the remaining member concerned.

(12) In determining whether a direction covered by subsection (9) or (11) is in the interests of justice, the President must have regard to the objective of proceedings that are conducted in a manner that is fair, just, economical, informal and quick.

23A Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding

Scope

(1) This section does not apply in relation to a proceeding in the Security Appeals Division.

Reconstitution of Tribunal to achieve expeditious and efficient conduct of proceeding

(2) If the hearing of a proceeding has commenced or is completed, the President may direct that the Tribunal as constituted for the purposes of a particular proceeding be reconstituted by:

(a) adding one or more members; or

(b) removing one or more members; or

(c) substituting one or more other members;

(or any combination of these) if the President thinks that the reconstitution is in the interests of achieving the expeditious and efficient conduct of the proceeding.

Note: See also section 23B.

Reconstituted Tribunal must continue proceeding

(3) The Tribunal as constituted in accordance with a direction under subsection (2) must continue the proceeding.

Note: Section 23D provides that the reconstituted Tribunal may have regard to any record of the proceeding before the Tribunal as previously constituted.

Limitations on President's power to give direction

(4) The President must not give a direction under this section about the constitution of the Tribunal if the Tribunal has made a decision under subsection 43(1).

(5) The President must not give a direction under this section unless the President has consulted the parties to the proceeding.

23B Matters to which the President must have regard in constituting the Tribunal

In giving a direction under section 20B, 23 or 23A as to the persons who are to constitute the Tribunal for the purposes of a particular proceeding, the President must have regard to:

(a) the degree of public importance or complexity of the matters to which that proceeding relates; and

(b) the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal; and

(c) the degree to which the matters to which that proceeding relates concern the security, defence or international relations of Australia; and

(d) the degree of financial importance of the matters to which that proceeding relates; and

(e) if that proceeding relates to the review of a decision made in the exercise of powers conferred by a particular enactment - the purpose or object underlying the enactment (whether or not that purpose or object is expressly stated); and

(f) the degree to which it is desirable for any or all of the persons who are to constitute the Tribunal to have knowledge, expertise or experience in relation to the matters to which that proceeding relates; and

(g) any notice given under subsection 21(2) by the parties to that proceeding; and

(h) such other matters (if any) as the President considers relevant.

23C Limitation on composition of reconstituted Tribunal

Scope

(1) This section does not apply in relation to a proceeding in the Security Appeals Division.

Limitation on composition of reconstituted Tribunal

(2) A direction relating to the reconstitution of the Tribunal must not be given unless the member or members who constitute the reconstituted Tribunal could have constituted the Tribunal for the purposes of the proceeding if the proceeding had commenced immediately before the direction was given.

23D Tribunal may have regard to record of previous proceeding

Scope

(1) This section does not apply in relation to a proceeding in the Security Appeals Division.

Tribunal may have regard to record of previous proceeding

(2) If the Tribunal is reconstituted, the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding).

(3) Subsection (2) does not apply in a case where the Tribunal is reconstituted following an order under subsection 44(4) remitting a case to be heard and decided again.

Note 1: Subsection 44AA(9) applies subsection 44(4) to appeals transferred to the Federal Magistrates Court.

Note 2: Paragraph 44(6)(b) deals with a proceeding reheard by the Tribunal following an appeal.

23E Constitution of Tribunal for review of amount taxed - general rule

Scope

(1) This section applies to a proceeding (the taxing review proceeding ) by way of an application to the Tribunal under subsection 69A(2) for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid by a party to another proceeding (the substantive proceeding ).

Constitution of Tribunal for taxing review proceeding

(2) For the purposes of the taxing review proceeding, the Tribunal is to be constituted by:

(a) if the Tribunal was constituted for the purposes of the substantive proceeding by a single member - that member; or

(b) if the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members - the member who presided for the purposes of the substantive proceeding.

(3) This section has effect subject to section 23F.

23F Constitution of Tribunal for review of amount taxed - member unavailable

Scope

(1) This section applies to a proceeding (the taxing review proceeding ) by way of an application to the Tribunal under subsection 69A(2) for review of a decision by the Registrar, a District Registrar or a Deputy Registrar taxing any costs ordered by the Tribunal to be paid by a party to another proceeding (the substantive proceeding ) if:

(a) in a case where the Tribunal was constituted for the purposes of the substantive proceeding by a single member - that member (the unavailable member ):

(i) has stopped being a member; or

(ii) for any reason, is not available to take part in the taxing review proceeding; or

(iii) is directed by the President not to take part in the taxing review proceeding; or

(b) in a case where the Tribunal was constituted for the purposes of the substantive proceeding by 2 or 3 members - the member (the unavailable member ) who presided at the substantive proceeding:

(i) has stopped being a member; or

(ii) for any reason, is not available to take part in the taxing review proceeding; or

(iii) is directed by the President not to take part in the taxing review proceeding.

Single member Tribunal

(2) If the unavailable member constituted the Tribunal for the purposes of the substantive proceeding, the President must direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.

Multiple member Tribunal

(3) If the unavailable member is one of the members who constituted the Tribunal for the purposes of the substantive proceeding, the President must:

(a) direct the remaining member, or one of the remaining members, to constitute the Tribunal for the purposes of the taxing review proceeding; or

(b) direct another member to constitute the Tribunal for the purposes of the taxing review proceeding.

Member who stops being a member and becomes a member again

(4) For the purposes of this section, a member who:

(a) stops being a member; and

(b) at a later time becomes a member again;

is taken, from that later time, to be another member.

Limitations on President's powers to give directions

(5) The President must not give a direction under subparagraph (1)(a)(iii) or (b)(iii) unless the President is satisfied that the direction is in the interests of justice.

(6) The President must not give a direction under paragraph (3)(b) that results in the remaining member, or any of the remaining members, not constituting the Tribunal for the purposes of the taxing review proceeding unless the President is satisfied that the direction is in the interests of justice.


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