Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Administrative
Review Tribunal Bill 2000
No. ,
2000
(Attorney-General)
A
Bill for an Act to establish an Administrative Review Tribunal, and for other
purposes
ISBN: 0642 439362
Contents
A Bill for an Act to establish an Administrative Review
Tribunal, and for other purposes
The Parliament of Australia enacts:
This Act may be cited as the Administrative Review Tribunal Act
2000.
(1) Subject to this section, this Act commences on the day on which it
receives the Royal Assent.
(2) Parts 4 to 10 commence on a day to be fixed by
Proclamation.
(3) If Parts 4 to 10 do not commence within the period of 12 months
beginning on the day on which this Act receives the Royal Assent, they commence
on the first day after the end of that period.
The main objects of this Act are:
(a) to establish the Administrative Review Tribunal to review
administrative decisions where other enactments provide for applications for
review to be made; and
(b) to provide for the Tribunal to review the merits of such decisions
independently of the persons or bodies who made them; and
(c) to ensure the Tribunal provides an accessible mechanism for reviewing
such decisions that is fair, just, economical, informal and quick; and
(d) to enable the Tribunal to review decisions in a non-adversarial way;
and
(e) to enable the Tribunal, in reviewing decisions, to adopt flexible and
streamlined procedures and a variety of processes for resolving issues,
including making appropriate use of technology; and
(f) to improve the quality and consistency of the making of such
decisions.
Establishment, structure and membership of the Administrative Review
Tribunal—Part 2 of the Act
(1) This Act provides for there to be an Administrative Review Tribunal
consisting of a President, executive members, senior members and other members.
The Tribunal is divided into various Divisions.
(2) The President and other members are appointed by the Governor-General.
Division 3 of Part 2 covers the terms and conditions of members. For
example, it deals with the remuneration and allowances of members and their
resignation or removal from office.
Administration of the Tribunal—Part 3 of the
Act
(3) The President is responsible for managing the administrative affairs
of the Tribunal. Executive members and other members are to assist the President
in doing so.
(4) A Chief Executive Officer is also to assist the President in managing
the administrative affairs of the Tribunal. Staff and consultants may also be
engaged.
Review of decisions by the Tribunal—Parts 4 to 9 of the
Act
(5) The Tribunal has the function of reviewing administrative decisions
that affect persons’ interests, where other enactments allow applications
for review to be made. Parts 4 to 9 provide for a 2 stage process under
which the Tribunal conducts a “first-tier” review and, if certain
conditions are met, a “second-tier” review of its first-tier
decision.
Modifications by other enactments
(6) Enactments providing for applications to the Tribunal for the review
of decisions may modify the operation of this Act in relation to first-tier or
second-tier review. However, it is not intended that the enactments modify
certain provisions.
Appeals and references to the Federal Court etc.—Part 10 of
the Act
(7) Part 10 deals with appeals to the Federal Court from Tribunal
decisions, the transfer of such appeals to the Federal Magistrates Court and
references of questions of law to the Federal Court.
Administrative Review Council—Part 11 of the
Act
(8) The Act also provides for there to be an Administrative Review
Council, whose main function is to review and monitor developments in the
Commonwealth administrative law system and recommend to the Attorney-General
improvements that might be made to the system.
First-tier review
(1) The following diagram gives an overview of the main steps typically
involved in first-tier review of a decision made under an enactment.
Second-tier review
(2) The following diagram gives an overview of the main steps typically
involved in the second-tier review of a first-tier decision.
Federal Court appeals
(3) The following diagram gives an overview of the main steps typically
involved in appealing to the Federal Court from a first-tier or second-tier
decision on a question of law.
In this Act, unless the contrary intention appears:
Agency has the same meaning as in the Public Service Act
1999.
Agency Head has the same meaning as in the
Public Service Act 1999.
all review and appeal action has been finalised has the
meaning given by section 120.
appointed Council member means a member of the Council
mentioned in paragraph 175(d).
Chief Executive Officer means the Chief Executive Officer of
the Tribunal appointed under section 35.
code of conduct has the meaning given by
section 25.
consultant means a person engaged as a consultant
under section 48.
core provision has the meaning given by subsection
7(3).
Council means the Administrative Review Council mentioned in
section 175.
Council member means an appointed Council member or an ex
officio Council member.
decision includes:
(a) making, suspending, revoking or refusing to make an order or
determination; or
(b) giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission; or
(c) issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument; or
(d) imposing a condition or restriction; or
(e) making a declaration, demand or requirement; or
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other thing.
decision-maker has the meaning given by section 55 and
subsection 67(2).
Division means a Division of the Tribunal set out in
section 11.
document includes:
(a) a map, plan, drawing or photograph; and
(b) an application, notice or statement of reasons; and
(c) any other thing mentioned in the definition of document
in section 25 of the Acts Interpretation Act 1901.
enactment means:
(a) an Act; or
(b) subordinate legislation.
executive member means a person appointed as an executive
member under section 13.
ex officio Council member means a member of the Council
mentioned in paragraph 175(a), (b) or (c).
Federal Court means the Federal Court of Australia.
first-tier decision means a decision by the Tribunal under
section 133 on a first-tier review.
first-tier review means review, as a result of an application
under Division 1 of Part 4, of an original decision.
inquiry officer has the meaning given by
section 111.
member means the President, an executive member, a senior
member or any other person appointed as a member under
section 13.
Ombudsman means the Commonwealth Ombudsman holding office
under the Ombudsman Act 1976.
original decision has the meaning given by
section 54.
participant has the meaning given by
section 84.
performance agreement has the meaning given by subsection
24(1).
performance of a related Tribunal function has the meaning
given by paragraph 140(b).
person whose interests are affected by a decision: an
organisation or association of persons, whether incorporated or not, is taken to
be a person whose interests are affected by a decision if:
(a) the decision relates to a matter included in the objects or purposes
of the organisation, association or body; and
(b) if the objects or purposes did not always include the matter—the
decision was made after the objects or purposes included the matter.
practice and procedure directions means directions under
section 161.
President means the person appointed as the President under
section 12.
primary Division of a member has the meaning given by
subsection 14(2).
responsible Minister for a Division means the Minister who,
under section 15, must be satisfied as mentioned in that section in
relation to the appointment of members whose primary Division will be that
Division.
second-tier decision means a decision by the Tribunal under
section 133 on a second-tier review.
second-tier review means review, as a result of an
application under Division 2 of Part 4, of a first-tier
decision.
senior member means a person appointed as a senior member
under section 13.
staff of the Tribunal has the meaning given by
section 46.
statement of reasons for a decision means 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.
subordinate legislation means:
(a) an Ordinance of a Territory other than the Northern Territory or the
Australian Capital Territory; or
(b) an instrument (including rules, regulations or by-laws) made under an
Act or under such an Ordinance.
Tribunal means the Administrative Review Tribunal established
by section 10.
Acts
(1) As far as possible, other Acts (whether enacted before or after the
commencement of this section) are to be interpreted as not affecting the
operation of the core provisions (see subsection (3)).
Subordinate legislation
(2) If subordinate legislation, whether made before or after the
commencement of this section, makes provision as mentioned in subsections 54(2)
and (3) (about allowing applications for Tribunal review) in relation to the
review of decisions, that legislation may also provide for the amendment of the
operation of:
(a) any provision of this Act (other than a core provision) in relation to
the review of the decisions; and
(b) Subdivision B of Division 1 of Part 4 (about giving notice
of decisions) in relation to such decisions;
and any such provision has effect accordingly.
Core provisions
(3) In this section:
core provisions means the following:
(a) Parts 2 and 3 (about the establishment, structure, membership,
staffing and administration of the Tribunal);
(b) Division 2 of Part 4 (about initiating second-tier
review);
(c) Part 5 (about the Tribunal’s preparations for
review);
(d) Division 3 of Part 6 (about the presiding member and
resolution of differences);
(e) section 90 (about procedural fairness);
(f) section 91 (about rules of evidence);
(g) section 92 (about informality in reviewing decisions);
(h) section 106 (about persons being assisted by
interpreters);
(i) sections 107, 108 and 116 and Division 10 of Part 9
(about practice and procedure directions and determinations);
(j) Division 11 of Part 9 (about the performance of related
Tribunal functions).
This Act extends to every external Territory.
If 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.
Note: The provisions of this Part are core provisions. Other
Acts are to be interpreted as far as possible as not changing the provisions,
and subordinate legislation providing for Tribunal review cannot change them:
see section 7.
The Administrative Review Tribunal is established by this
section.
The Tribunal has the following Divisions:
(a) the Commercial and General Division;
(b) the Immigration and Refugee Division;
(c) the Income Support Division;
(d) the Taxation Division;
(e) the Veterans’ Appeals Division;
(f) the Workers’ Compensation Division;
(g) any other Division specified in the regulations.
(1) There is to be a President of the Tribunal.
(2) The President is to be appointed by the Governor-General by written
instrument.
(1) There are to be executive members, senior members and other members of
the Tribunal.
(2) The executive members, senior members and other members are to be
appointed by the Governor-General by written instrument.
(3) A senior member must not be appointed if the appointment would
cause:
(a) the total number of senior members to be more than 10% of the total
number of members; or
(b) the total number of senior members appointed to a Division, who have
that Division as their primary Division, to be more than 15% of the total number
of members appointed to that Division, who have that Division as their primary
Division.
Executive members
(1) One executive member is to be appointed to each Division, and the same
executive member cannot be appointed to more than one Division.
Senior members and other members
(2) Each member (other than the President or an executive member) is to be
appointed to at least one Division. If the member is appointed to one Division
only, that Division is the member’s primary Division.
Otherwise, the instrument of appointment is to state which Division is the
member’s primary Division.
Commercial and General Division etc.
(1) Before the Governor-General appoints a person as:
(a) a member whose primary Division will be the Commercial and General
Division or a Division mentioned in paragraph 11(g); or
(b) the executive member for that Division;
the Attorney-General must be satisfied, having regard to the person’s
qualifications and experience, that the person should be appointed.
Immigration and Refugee Division
(2) Before the Governor-General appoints a person as:
(a) a member whose primary Division will be the Immigration and Refugee
Division; or
(b) the executive member for that Division;
the Minister administering Part 5 of the Migration Act 1958
must be satisfied, having regard to the person’s qualifications and
experience, that the person should be appointed.
Income Support Division
(3) Before the Governor-General appoints a person as:
(a) a member whose primary Division will be the Income Support Division;
or
(b) the executive member for that Division;
the Minister administering Part 4 of the Social Security
(Administration) Act 1999 must be satisfied, having regard to the
person’s qualifications and experience, that the person should be
appointed.
Taxation Division
(4) Before the Governor-General appoints a person as:
(a) a member whose primary Division will be the Taxation Division;
or
(b) the executive member for that Division;
the Minister administering Part IVC of the Taxation Administration
Act 1953 must be satisfied, having regard to the person’s
qualifications and experience, that the person should be appointed.
Veterans’ Appeals Division
(5) Before the Governor-General appoints a person as:
(a) a member whose primary Division will be the Veterans’ Appeals
Division; or
(b) the executive member for that Division;
the Minister administering Part X of the Veterans’
Entitlements Act 1986 must be satisfied, having regard to the person’s
qualifications and experience, that the person should be appointed.
Workers’ Compensation Division
(6) Before the Governor-General appoints a person as:
(a) a member whose primary Division will be the Workers’
Compensation Division; or
(b) the executive member for that Division;
the Minister administering Part VI of the Safety, Rehabilitation
and Compensation Act 1988 must be satisfied, having regard to the
person’s qualifications and experience, that the person should be
appointed.
The President may, after a member (other than an executive member) is
appointed to one or more Divisions, in writing, assign the member to an
additional Division or Divisions for a specified period, but only with the
consent of:
(a) the member; and
(b) the responsible Minister for the member’s primary Division;
and
(c) the responsible Minister for the additional Division or responsible
Ministers for the additional Divisions.
(1) The President and the executive members are to be appointed as
full-time members.
(2) Each other member is to be appointed as a full-time member or a
part-time member.
Subject to this Division, a member holds office for the period specified
in his or her instrument of appointment. The period must not exceed 7
years.
(1) A member is to be paid the remuneration that is determined by the
Remuneration Tribunal. If no determination of that remuneration by the
Remuneration Tribunal is in operation, the member is to be paid the remuneration
that is prescribed by the regulations.
(2) A member is to be paid the allowances that are prescribed by the
regulations.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
Full-time members—recreation leave
(1) A full-time member has the recreation leave entitlements that are
determined by the Remuneration Tribunal.
President—other leave
(2) The Attorney-General may grant the President leave of absence, other
than recreation leave, on the terms and conditions as to remuneration or
otherwise that the Attorney-General determines.
Other full-time members—other leave
(3) The President may grant any other full-time member leave of absence,
other than recreation leave, on the terms and conditions as to remuneration or
otherwise that the President determines.
Part-time members
(4) The President may grant leave of absence to any part-time member on
the terms and conditions that the President determines.
Full-time members
(1) A full-time member must not engage in paid employment outside the
duties of his or her office, except with the consent of:
(a) if the member is the President—the Attorney-General;
or
(b) in any other case—the President.
Part-time members
(2) A part-time member who engages in paid employment outside the duties
of his or her office must, in writing, advise the President.
(3) 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 the duties of his or her office.
Requirement for initial disclosure of financial interests
(1) The Attorney-General must, within a reasonable period after the
President is appointed, require the President to make such written disclosure as
the Attorney-General requires of:
(a) the President’s financial interests; and
(b) the financial interests of the President’s immediate
family;
to the Attorney-General.
Compliance with disclosure requirement
(2) The President must comply with the requirement within one
month.
Updating disclosure of financial interests
(3) The President must from time to time make such further disclosure to
the Attorney-General as is necessary to ensure that the information about the
financial interests mentioned in subsection (1) is up-to-date.
Interests conflicting with review—action by
President
(4) If the President is to review, or is reviewing, (either alone or
together with one or more other members) a decision and the President has or
acquires any interest, financial or otherwise, that could conflict with the
proper review of the decision:
(a) the President must disclose the interest to the participants in the
review; and
(b) except with the consent of all the participants in the review, the
President must not review, or continue to review, the decision.
Interests conflicting with second-tier review leave
decision
(5) If the President is to decide under section 65 whether or not to
grant leave to make an application for second-tier review and the President has
or acquires any interest, financial or otherwise, that could conflict with the
proper making of the decision, the President must not make the decision, but
must delegate the function in accordance with this Act.
Requirement for initial disclosure of financial interests
(1) The President must, within a reasonable period after each other member
is appointed, require the member to make such written disclosure as the
President requires of:
(a) the member’s financial interests; and
(b) the financial interests of the member’s immediate
family;
to:
(c) in the case of an executive member—the President; or
(d) in any other case—the executive member appointed to the
member’s primary Division.
Compliance with disclosure requirement
(2) The member must comply with the requirement within one
month.
Updating disclosure of financial interests
(3) The member must from time to time make such further disclosure to the
executive member or the President, as the case may be, as is necessary to ensure
that the information about the financial interests mentioned in
subsection (1) is up-to-date.
Interests conflicting with review—action by member
(4) If a member other than the President is to review, or is reviewing,
(either alone or together with one or more other members) a decision and has or
acquires any interest, financial or otherwise, that could conflict with the
proper review of the decision:
(a) the member must disclose the interest to the participants in the
review; and
(b) the member is only to review, or continue to review, the decision
if:
(i) all the participants in the review consent to the member doing so;
and
(ii) the President does not give a direction under
paragraph (5)(a).
Interests conflicting with review—action by
President
(5) If the President becomes aware that a member who is to review, or is
reviewing, (either alone or together with one or more other members) a decision
has an interest of the kind mentioned in subsection (4):
(a) where the President considers that the member should not review or
continue to review the decision—he or she must give a direction to the
member accordingly; or
(b) in any other case—he or she must arrange for the interest of the
member to be disclosed to the participants in the review.
Interests conflicting with second-tier review leave
decision
(6) If a member other than the President is to decide under
section 65 whether or not to grant leave to make an application for
second-tier review and the member has or acquires any interest, financial or
otherwise, that could conflict with the proper making of the decision, that
member must not make the decision.
Note: In such a case, the delegation powers under this Act
would be used to enable another member to make the decision.
Requirement to enter into agreement
(1) As soon as practicable after his or her appointment, each member
(other than the President) is to enter into a written agreement (a
performance agreement) under this section with:
(a) in the case of an executive member—the President; or
(b) in any other case—the executive member appointed to the
member’s primary Division or a senior member appointed or assigned to that
Division who is chosen for the purpose by the executive member.
Note: If the member does not enter into the agreement, he or
she may be subject to removal from office under
section 28.
Coverage of agreement
(2) The performance agreement is to deal with the performance by the
member of the duties of his or her office and in particular is to require the
member to:
(a) participate in a performance appraisal scheme; and
(b) be accountable for his or her productivity and performance;
and
(c) assist the President, in such manner as the President requires, in
managing the administrative affairs of the Tribunal; and
(d) recognise the need for compliance with the code of conduct.
Agreement not to cover substance of decisions
(3) However, the performance agreement is not to deal with the substance
of particular decisions made by the member, or in which the member
participates.
Compliance
(4) The member must comply with the performance agreement.
Note: If the member does not comply, he or she may be
subject to a direction under section 26 or removal from office under
section 28.
Establishment of committee to determine code
(1) As soon as practicable after the commencement of this section, the
President is to establish a committee that is to determine a written code of
conduct to apply to members performing the duties of their offices.
Note: Under subsection 33(3) of the Acts Interpretation
Act 1901, the code of conduct can later be varied in the same way as it was
made.
Composition of committee
(2) The committee is to consist of:
(a) the President; and
(b) 2 executive members; and
(c) a person who:
(i) is, in the opinion of the President, suitably qualified to be a member
of the committee, and
(ii) is not a member, the Chief Executive Officer, staff or (disregarding
the person’s membership of the committee) a consultant.
Consultation
(3) The committee is to consult, to the extent that it considers
appropriate, persons outside the Tribunal and members of the Tribunal about the
content of the code of conduct.
Compliance
(4) Each member must comply with the code of conduct.
Note: If the member does not comply, he or she may be
subject to a direction under section 26 or removal from office under
section 28.
Disallowable instrument
(5) The code of conduct is a disallowable instrument for the purposes of
section 46A of the Acts Interpretation Act 1901.
Direction to improve performance etc.
(1) If a member (other than the President) does not comply with his or her
performance agreement or the code of conduct, the President may, in accordance
with guidelines determined under subsection (3), in writing, direct the
member to take specified action to improve the performance of his or her duties
so that the member will in future comply with the agreement or code.
Later removal action not affected
(2) The fact that the President gives a direction does not mean that the
member cannot later be removed from office under section 28 for the
non-compliance to which the direction relates.
Guidelines
(3) The President, after consulting the executive members, must determine
written guidelines for the purposes of subsection (1). The guidelines must
ensure that procedural fairness will be afforded to members who are to be given
directions in accordance with them.
Removal of President for misbehaviour or incapacity
(1) The Governor-General must remove the President from office if each
House of the Parliament, in the same session of the Parliament, resolves that
the President should be removed from office for misbehaviour or physical or
mental incapacity.
Removal of President on other grounds
(2) The Governor-General must remove the President from office if the
President:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his
or her creditors.
Removal of members for bankruptcy etc.
(1) The Governor-General must remove a member (other than the President)
from office if the member:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his
or her creditors.
Removal of members on other grounds
(2) The Governor-General must remove a member (other than the President)
from office if:
(a) subsection (3) applies to the member; and
(b) the President is satisfied that, because of this, the member should be
removed from office; and
(c) if the member is an executive member—the responsible Minister
for the Division to which the member was appointed agrees that the member should
be removed from office.
Other grounds
(3) This subsection applies to a member if the member:
(a) misbehaves or becomes physically or mentally incapacitated;
or
(b) is absent from duty, except on leave of absence granted in accordance
with section 20, for 14 days or more in any 3 months or for 28 days or more
in any 12 months; or
(c) fails, without reasonable excuse, to comply with his or her
obligations under section 21 (about outside employment) or 23 (about
disclosure of interests); or
(d) refuses or fails to enter into a performance agreement as required by
section 24 or, after entering into such an agreement, commits a serious or
continuing breach of the agreement or of a direction under section 26 in
relation to the agreement; or
(e) commits a serious or continuing breach of his or her obligations under
subsection 25(4) (about the code of conduct) or of a direction under
section 26 in relation to the code of conduct; or
(f) commits a serious or continuing breach of his or her obligations under
section 75 or subsection 161(7) or of a requirement under subsection 108(2)
(about compliance with directions); or
(g) in the case of a member appointed or assigned to the Immigration and
Refugee Division—has a direct or indirect financial interest in a body
that provides services in relation to the seeking by persons who are not
Australian citizens of permission to enter or remain in Australia.
Paragraph (3)(a) not limited
(4) To avoid doubt, paragraphs (3)(b) to (g) do not limit
paragraph (3)(a).
A member may resign his or her appointment by giving the Governor-General
a written resignation.
A member holds office on the terms and conditions (if any) in relation to
matters not covered by this Act as are determined by:
(a) if the member is the President—the Attorney-General;
or
(b) in any other case—the President.
Acting President
(1) The Attorney-General may appoint a person (whether or not a member) to
act as 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 is absent
from duty or from Australia, or is, for any reason, unable to perform the duties
of his or her office.
Acting executive members
(2) The responsible Minister for a Division may appoint a member appointed
or assigned to the Division to act as the executive member for the
Division:
(a) during a vacancy in the office of the executive member (whether or not
an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the executive member is
absent from duty or from Australia, or is, for any reason, unable to perform the
duties of his or her office.
Acting senior members
(3) The President may appoint a member to act as a senior
member:
(a) during a vacancy in the office of the senior member (whether or not an
appointment has previously been made to the office); or
(b) during any period, or during all periods, when the senior member is
absent from duty or from Australia, or is, for any reason, unable to perform the
duties of his or her office.
Validity of action
(4) Anything done by or in relation to a member or other person purporting
to act under an appointment under this section is not invalid because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion for the member or other person to act had not arisen or
had ceased.
Note: The provisions of this Part are core provisions. Other
Acts are to be interpreted as far as possible as not changing the provisions,
and subordinate legislation providing for Tribunal review cannot change them:
see section 7.
The President is responsible for managing the administrative affairs of
the Tribunal.
The executive member appointed to each Division is to assist the
President, in such manner as the President requires, in managing the
administrative affairs of that Division.
(1) Each other member is to assist the President, in such manner as the
President requires, in managing the administrative affairs of the
Tribunal.
(2) Each member appointed or assigned to a Division is to assist the
executive member for the Division, in such manner as the executive member
requires, in managing the administrative affairs of the Division.
The Chief Executive Officer is to be appointed by the Governor-General by
written instrument.
The Chief Executive Officer is to assist the President, in such manner as
the President requires, in the management of the administrative affairs of the
Tribunal.
Subject to this Division, the Chief Executive Officer holds office for
the period specified in his or her instrument of appointment. The period must
not exceed 5 years.
(1) The Chief Executive Officer is to be paid the remuneration that is
determined by the Remuneration Tribunal. If no determination of that
remuneration by the Remuneration Tribunal is in operation, the Chief Executive
Officer is to be paid the remuneration that is prescribed by the
regulations.
(2) The Chief Executive Officer is to be paid the allowances that are
prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
(1) The Chief Executive Officer has the recreation leave entitlements that
are determined by the Remuneration Tribunal.
President may grant leave of absence
(2) The President may grant the Chief Executive Officer leave of absence,
other than recreation leave, on the terms and conditions as to remuneration or
otherwise that the President determines.
The Chief Executive Officer must not engage in paid employment outside
the duties of his or her office without the President’s
approval.
(1) The President must, within a reasonable period after the appointment
of the Chief Executive Officer, require the Chief Executive Officer to make such
written disclosure as the President requires of:
(a) the Chief Executive Officer’s financial interests; and
(b) the financial interests of the Chief Executive Officer’s
immediate family;
to the President.
(2) The Chief Executive Officer must comply with the requirement within
one month.
(3) The Chief Executive Officer must from time to time make such further
disclosures to the President as are necessary to ensure that the information
about the financial interests mentioned in subsection (1) is
up-to-date.
Removal on grounds of bankruptcy etc.
(1) The Governor-General must remove the Chief Executive Officer from
office if the Chief Executive Officer:
(a) becomes bankrupt; or
(b) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(c) compounds with his or her creditors; or
(d) makes an assignment of his or her remuneration for the benefit of his
or her creditors.
Removal on other grounds
(2) The Governor-General must remove the Chief Executive Officer from
office if the Chief Executive Officer:
(a) misbehaves or becomes physically or mentally incapacitated;
or
(b) is absent, except on leave of absence, for 14 or more consecutive days
or for 28 days or more in any 12 months; or
(c) fails, without reasonable excuse, to comply with section 40
(about outside employment) or 41 (about disclosure of interests); or
(d) commits a serious or continuing breach of his or her obligations under
subsection 161(7) or of a requirement under subsection 108(2) or 117(2) (about
compliance with directions);
and the President is satisfied that, because of this, the Chief Executive
Officer should be removed from office.
Paragraph (2)(a) not limited
(3) To avoid doubt, paragraphs (2)(b) to (d) do not limit
paragraph (2)(a).
The Chief Executive Officer may resign his or her appointment by giving
the Governor-General a written resignation.
The Chief Executive Officer holds office on the terms and conditions (if
any) in relation to matters not covered by this Act that are determined by the
President.
(1) The President may appoint a person to act as the Chief Executive
Officer:
(a) during a vacancy in the office of Chief Executive Officer (whether or
not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Chief Executive
Officer is absent from duty or from Australia, or is, for any reason, unable to
perform the duties of the office.
Validity of action
(2) Anything done by or in relation to a person purporting to act under an
appointment under subsection (1) is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment had ceased to have effect; or
(d) the occasion for the person to act had not arisen or had
ceased.
Engagement of staff
(1) The staff necessary to assist the Chief Executive Officer are to be
persons engaged under the Public Service Act 1999.
Assistance of officers or employees of other Agencies
(2) The Chief Executive Officer may arrange with an Agency Head for the
services of officers or employees of the Agency to be made available for the
purposes of the Tribunal. For the purposes of this Act (other than
subsection (1) of this section), such officers or employees are taken to be
staff of the Tribunal.
Duties of staff
(3) The Chief Executive Officer may from time to time determine in writing
the duties of staff, and the place or places at which the duties are to be
performed.
For the purposes of the Public Service Act 1999:
(a) the Chief Executive Officer and the APS employees (within the meaning
of that Act) assisting the Chief Executive Officer together constitute a
Statutory Agency; and
(b) the Chief Executive Officer is the Head of that Statutory
Agency.
The Chief Executive Officer, on behalf of the Commonwealth, may, under
written agreements, engage persons as consultants to perform services (including
in respect of conferences or processes under Division 5 of Part 6 or
inquiries under Division 6 of that Part).
(1) The President must establish such Registries of the Tribunal as the
President thinks fit, but there must be at least one Registry established in
each State, in the Australian Capital Territory and in the Northern
Territory.
(2) The President must designate one of the Registries as the Principal
Registry.
Delegation by President
(1) Subject to this section, the President may, by writing, delegate all
or any of his or her powers and functions under this Act to a member, the Chief
Executive Officer, staff or a consultant.
Non-delegable powers and functions of President
(2) The President cannot delegate his or her powers or functions under
subsection (1) or under any of the provisions listed in the following
table:
|
Non-delegable powers and functions |
||
|---|---|---|
|
Item |
Provision |
Summary of topic of provision |
|
1 |
section 16 |
assigning members to Divisions |
|
2 |
paragraph 21(1)(b) |
outside employment for full-time members |
|
3 |
paragraph 24(1)(a) |
performance agreements for executive members |
|
4 |
subsection 25(1) |
code of conduct |
|
5 |
subsection 26(3) |
performance improvement guidelines for members |
|
6 |
paragraph 28(2)(b) |
removal of members |
|
7 |
subsection 39(2) |
leave for Chief Executive Officer |
|
8 |
section 40 |
outside employment for Chief Executive Officer |
|
9 |
section 41 |
disclosure of interests by Chief Executive Officer |
|
10 |
subsection 42(2) |
removal of Chief Executive Officer |
|
11 |
subsection 45(1) |
acting Chief Executive Officer |
|
12 |
subsection 161(1) |
practice and procedure directions |
|
13 |
subsection 172(2) |
referral of questions of law to the Federal Court |
President’s powers and functions that are delegable only to
executive members
(3) The President cannot delegate his or her powers or functions under the
provisions in the following table to anyone other than an executive member for a
Division:
|
Powers and functions delegable only to executive members |
||
|---|---|---|
|
Item |
Provision |
Summary of topic of provision |
|
1 |
subsection 20(3) |
leave for full-time members |
|
2 |
subsection 20(4) |
leave for part-time members |
|
3 |
subsection 26(1) |
performance improvement directions for members |
|
4 |
subsection 31(3) |
appointment of acting senior members |
|
5 |
paragraph 65(1)(c) |
leave for second-tier review |
Delegation by executive member
(4) An executive member may, by writing, delegate his or her power under
paragraph 65(1)(d) (about leave for second-tier review) to a member appointed or
assigned to the executive member’s Division.
(1) After the end of each financial year, the President must give a report
to the Attorney-General, for presentation to the Parliament, on the activities
of the Tribunal during the year.
(2) The report must be prepared in accordance with guidelines approved on
behalf of the Parliament by the Joint Committee of Public Accounts and
Audit.
This Part does not authorise any member, the Chief Executive Officer or
any staff or consultant of the Tribunal to acquire any interest or right that
would constitute an interest in land for the purposes of the Lands
Acquisition Act 1989.
Any judicial or other proceeding relating to a matter arising out of the
management of the administrative affairs of the Tribunal, including any
proceeding relating to anything done by the Chief Executive Officer, may be
instituted by or against the Commonwealth, as the case requires.
(1) If an enactment provides that applications may be made to the
Tribunal:
(a) for the 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;
the decisions are original decisions.
Subordinate legislation allowed to provide for review
applications
(2) An enactment that is subordinate legislation may provide that
applications may be made to the Tribunal as mentioned in
subsection (1).
(3) If subordinate legislation makes provision as mentioned in
subsection (1), the subordinate legislation:
(a) may be expressed to apply to all decisions made in exercise of the
power or powers concerned, or to a class of such decisions; and
(b) may specify conditions subject to which applications may be made;
and
(c) may require that the decisions be reviewed in a specified Division of
the Tribunal;
and so far as it does so, the subordinate legislation has effect for the
purposes of this Act.
Note: Subsection 7(2) also allows subordinate legislation to
provide for the amendment of the operation of any provision of this Act, other
than the core provisions, in relation to review of decisions.
Deemed decision not to do a thing
(4) If:
(a) decisions of a person not to do a thing are original decisions;
and
(b) the enactment concerned provides for a particular period within which
the person is required or permitted to do the thing; and
(c) the person does not do the thing within that period;
the person is taken for the purposes of this Division to have made a
decision, at the end of the particular period, not to do the thing.
Note: If an enactment does not provide for a particular
period within which a person is required or permitted to do a thing,
section 10 of the Ombudsman Act 1976 provides in certain
circumstances for the person to be deemed to have decided at a particular time
not to do the thing.
Person who makes original decision
(1) The person who makes an original decision is, subject to this section,
the decision-maker in relation to the decision.
Changes in duties etc.
(2) If, at any time after making the decision, the person does not have
duties that require or permit the person to do the things that a decision-maker
is required or permitted by this Act to do in relation to the decision, the
decision-maker for that purpose is instead:
(a) if another person has those duties—that person; or
(b) if not:
(i) if the person was performing duties in an Agency when the person made
the decision, and the Agency still exists—the Agency Head; or
(ii) if the person was performing duties in an organisation or body other
than an Agency when the person made the decision, and the organisation or body
still exists—the person who manages the organisation or body; or
(iii) in any other case—such person as the President, or another
member authorised by the President, specifies.
Delegation
(3) An Agency Head, or a person managing an organisation or body, who
becomes the decision-maker because of subparagraph (2)(b)(i) or (ii) may
delegate all or any of the powers or functions conferred on the decision-maker
under this Act to any person performing duties in the Agency or the organisation
or body.
Notifiable decision
(1) Subject to subsection (5), for the purpose of this section a
notifiable decision is:
(a) an original decision; or
(b) a decision that is reviewable by:
(i) a person whose decision on review is an original decision;
or
(ii) a person whose decision on review is, because of
subparagraph (i), a notifiable decision.
Notice
(2) A person who makes a notifiable 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, of:
(a) the making of the decision; and
(b) if the decision is an original decision—the right of the person
to make an application to the Tribunal for review of the decision; and
(c) if the decision is not an original decision—the right of the
person to have the decision reviewed as mentioned in
paragraph (1)(b).
Guidelines
(3) In doing so, the person who makes the notifiable decision must have
regard to any guidelines under subsection (4).
(4) The President may issue written guidelines to facilitate the operation
of subsection (2). Such guidelines are disallowable instruments for the
purposes of section 46A of the Acts Interpretation Act
1901.
Exceptions to definition of notifiable decision
(5) None of the following is a notifiable
decision:
(a) a decision that is taken by subsection 54(4) or by section 10 of
the Ombudsman Act 1976 to have been made;
(b) a decision where notice of the kind mentioned in subsection (2)
is required to be given by another enactment;
(c) each of the following decisions, if the decision does not adversely
affect the interests of any other person:
(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.
Effect of failure to comply
(6) A failure to comply with this section does not affect the validity of
a notifiable decision.
Request for statement
(1) Any person whose interests are affected by an original decision may,
by notice in writing given to the decision-maker, request the decision-maker to
give the person a statement of reasons for the decision.
Decision-maker to comply with request for statement
(2) Subject to this section and to section 60 (about the exclusion of
confidential information etc.), the decision-maker must, as soon as practicable
(but in any case by the end of 28 days after the day on which the request was
received), give the person the statement.
Exceptions
(3) The decision-maker is not required to give the statement if:
(a) the person has already been given a statement of reasons for the
decision; or
(b) the decision itself sets out the things required to be set out in a
statement of reasons, and a document setting out the terms of the decision has
already been given to the person; or
(c) the terms of the decision were recorded in writing and set out in a
document that was given to the person, and the person did not make the request
on or before the end of 28 days after the day on which that document was given
to the person; or
(d) the terms of the decision were not recorded in writing and set out in
a document that was given to the person, and the person did not make the request
within a reasonable time after the decision was made.
Notice of refusal etc.
(4) If:
(a) because of subsection (3), paragraph 60(2)(b) or for any other
reason, the decision-maker refuses to give the statement; or
(b) because of paragraph 60(2)(a), the decision-maker does not include
matter in the statement;
the decision-maker must give the person notice in writing of the fact,
stating the reason for refusing to give the statement or for not including the
matter.
When notice must be given
(5) The decision-maker must give the person the notice as soon as
practicable, but before the end of 28 days after the day on which the request
was made.
Application for review
(1) If:
(a) the decision-maker gives the person such notice; or
(b) the decision-maker does not give the person the statement of reasons
before the end of 28 days after the day on which the request was made;
the person may apply to the Tribunal for a decision about whether the
decision-maker should give the statement of reasons.
Decision on application
(2) If the person does so, the Tribunal must decide whether the
decision-maker should give the statement of reasons.
Effect of finding in favour of applicant
(3) If the Tribunal decides that the decision-maker should give the
statement of reasons, the decision-maker must give it before the end of 28 days
after the day on which the Tribunal advises the decision-maker of its
decision.
Application for review
(1) If:
(a) a decision-maker gives a person a statement of reasons for an original
decision; and
(b) the person considers that the statement does not contain:
(i) adequate particulars of findings on material questions of fact;
or
(ii) an adequate reference to the evidence or other material on which
those findings were based; or
(iii) adequate particulars of the reasons for the decision;
the person may apply to the Tribunal for a decision about whether the
particulars or reference is adequate.
Requirement for additional statement
(2) If the person does so, the Tribunal must decide whether the
particulars or reference is adequate. If it decides that the particulars or
reference is not adequate, the decision-maker must give the person an additional
statement, or additional statements, containing adequate particulars of the
findings or reasons, or an adequate reference to the evidence.
When statement must be given
(3) The decision-maker must do so before the end of 28 days after the day
on which the Tribunal advises the decision-maker of its decision.
Certificate by Attorney-General
(1) This section applies if the Attorney-General certifies in writing that
the disclosure of any matter contained in a statement of reasons for an original
decision, or in a statement under subsection 59(2) in relation to an original
decision, would be contrary to the public interest:
(a) because it would prejudice the security, defence or international
relations of Australia; or
(b) because 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.
Effect of certificate
(2) If this section applies, the decision-maker:
(a) is not required to include in the statement any matter in relation to
which the Attorney-General has given the certificate; and
(b) if the statement would be false or misleading if it did not include
such matter—is not required to give the statement.
Certificate also applicable for purposes of any Tribunal
review
(3) If the Tribunal later conducts a first-tier review of the original
decision, or a second-tier review of a first-tier decision resulting from such a
first-tier review, the certificate also has effect for the purposes of that
later review as if it had been given under subsection 101(1) in relation to the
disclosure of the information constituting the matter.
(1) A person whose interests are affected by an original decision may
apply to the Tribunal for a review of the decision.
Note: For the form etc. of applications, see Division 2
of Part 9.
Applications by or on behalf of Commonwealth etc.
(2) To avoid doubt:
(a) the Commonwealth; or
(b) an authority, tribunal or other body, whether incorporated or not,
that is established by an enactment; or
(c) any other person or persons in any way connected with the
Commonwealth;
are not prevented from applying merely because of their status as
such.
If:
(a) an application for first-tier review of an original decision is made
to the Tribunal by a person entitled to apply under section 61;
and
(b) the application complies with the requirements of Division 2 of
Part 9 (which is about the form etc. of applications);
the Tribunal must review the decision, and Parts 5 to 9 apply to the
review.
Note: The provisions of this Division are core provisions.
Other Acts are to be interpreted as far as possible as not changing the
provisions, and subordinate legislation providing for Tribunal review cannot
change them: see section 7.
If the Tribunal makes a first-tier decision:
(a) the decision-maker in relation to the decision; or
(b) a person who was a participant at any stage in the first-tier
review;
may apply to the Tribunal for leave to make an application for review of
the first-tier decision.
Note: For the form etc. of applications, see Division 2
of Part 9.
An application must state the grounds on which the person makes the
application.
(1) If:
(a) a person applies to the Tribunal for leave to make an application for
review of a first-tier decision; and
(b) the application complies with the requirements of this Division and of
Division 2 of Part 9 (which is about the form etc. of
applications);
then:
(c) if the Tribunal that made the first-tier decision consisted of or
included an executive member—the President must decide whether or not to
grant leave; or
(d) in any other case—the President, or the executive member
appointed to the Division within which the first-tier decision was made, must
decide whether or not to grant leave.
Grant of leave where principle, or issue, of general
significance
(2) Subject to subsection (4), the President or the executive member
must grant leave if the first-tier decision was made by the Tribunal constituted
by a single member, and the President or the executive member is satisfied that
the application raises a principle, or issue, of general significance.
Grant of leave where manifest error
(3) Subject to subsection (4), the President or the executive member
must grant leave if:
(a) the Tribunal has been given a written agreement by:
(i) the applicant for the first-tier review concerned; and
(ii) the decision-maker in relation to the original decision;
to the effect that the first-tier decision involved a manifest error of
law or fact that materially affected the first-tier decision; and
(b) the President or the executive member is satisfied that the first-tier
decision involved a manifest error of law or fact that materially affected the
first-tier decision; and
(c) no appeal to the Federal Court on a question of law from the
first-tier decision has been made under subsection 167(1).
Leave not to be granted if agreement forgoing second-tier review
right
(4) The President or the executive member must not grant leave under
subsection (2) or (3) if the Tribunal has been given a written agreement,
by all of the persons who were participants at any stage in the first-tier
review concerned, to the effect that they forgo any right to Tribunal review of
the first-tier decision.
Leave not to be granted except as provided above
(5) The President or executive member must not grant leave except in
accordance with subsections (2) to (4).
Application to be decided “on the papers”
(6) Unless the President or the executive member considers there are
special circumstances for doing otherwise, the decision about whether or not to
grant leave must be made without the applicant for the leave or any other person
being permitted or required to appear before the Tribunal.
Notice of decision
(7) The President or the executive member must give notice, to the
decision-maker and each person who was a participant at any stage in the
first-tier review, of his or her decision to grant or refuse leave.
A person who is granted leave to make an application for review of a
first-tier decision may make the application.
Note: For the form etc. of applications, see Division 2
of Part 9.
(1) If:
(a) an application for second-tier review of a first-tier decision is made
to the Tribunal by a person entitled to apply under section 66;
and
(b) the application complies with the requirements of Division 2 of
Part 9 (which is about the form etc. of applications); and
(c) the Tribunal has not been given a written agreement, by all of the
persons who were participants at any stage in the first-tier review, to the
effect that they forgo any right to Tribunal review of the first-tier
decision;
the Tribunal must review the decision, and subsection (2) of this
section and Parts 5 to 9 apply to the review.
(2) For the purposes of this Act, references to the
decision-maker in relation to the first-tier decision are
references to the decision-maker in relation to the original decision, the
first-tier review of which resulted in that first-tier decision.
Note: The provisions of this Part are core provisions. Other
Acts are to be interpreted as far as possible as not changing the provisions,
and subordinate legislation providing for Tribunal review cannot change them:
see section 7.
Review
(1) If the Tribunal is required to review a decision, the President must
direct that the review is to take place within a specified Division.
Enactments requiring review in a specified Division
(2) If, under paragraph 54(3)(c) (about subordinate legislation) or a
provision of another Act, a decision is required to be reviewed in a specified
Division, the direction under subsection (1) of this section must specify
that Division.
Directions about particular review or standing directions
(3) A direction under this section may be given in relation to a
particular review, or in relation to all review of a particular
kind.
1 to 3 members to conduct review
(1) Subject to this section, the President must direct that a single
member, 2 members or 3 members are to constitute the Tribunal for the purpose of
conducting the review.
When 2 or 3 members are to conduct the review
(2) The President is only to direct that 2 or 3 members are to constitute
the Tribunal if the President considers that it is appropriate to do
so:
(a) because the review raises a principle, or issue, of general
significance; or
(b) because one or more of the members have particular expertise of
relevance.
Members must be from Division specified in section 68
direction
(3) The member or members who are to constitute the Tribunal must, except
in the case of a member who is the President, be persons appointed or assigned
to the Division specified in the direction under section 68.
Second-tier review members not to include persons who were first-tier
review members
(4) In the case of a second-tier review, the member or members who are to
constitute the Tribunal must not be or include any person who was a member of
the Tribunal as constituted at any time for the purposes of the first-tier
review that resulted in the second-tier review.
Direction may cover timing of review etc.
(5) The direction under this section may also cover any of the
following:
(a) the period during which the review is to be carried out;
(b) the place at which the review is to be conducted (which must be in
Australia or in an external Territory);
(c) the manner in which, subject to this Act, the review is to be
conducted;
(d) any other matter relating to the conduct of the review.
Direction may relate to particular review or to all review of a
particular kind
(6) A direction under this section may be given in relation to a
particular review, or in relation to all review of a particular kind (which may,
for example, be described by reference to the place at which or period or
periods during which the review is to be conducted).
Practice and procedure directions
(7) The practice and procedure directions may make additional provision
about the giving of directions under this section.
Note: For example, the practice and procedure directions may
require members who are to constitute the Tribunal for the review of particular
kinds of decision to have particular qualifications or
experience.
(1) This section applies if a member (the unavailable
member) who constitutes, or is one of the members who constitute, the
Tribunal:
(a) stops being a member; or
(b) for any reason is not available to take part in the review.
Single member Tribunal
(2) If the unavailable member constitutes the Tribunal, the President
must, having regard to the object set out in paragraph 3(c) (about providing
fair, just, economical, informal and quick review) and subject to
section 73, direct another member or members to constitute the Tribunal for
the purpose of finishing the review.
Multiple member Tribunal
(3) If the unavailable member is one of the members who constitute the
Tribunal, the President must, having regard to the object set out in paragraph
3(c) and subject to section 73:
(a) direct that the Tribunal is to be constituted for the purposes of
finishing the review by the remaining member or members; or
(b) direct that the Tribunal is to be constituted for that purpose by the
remaining member or members together with another member or members.
Subject to section 73, the President may, at any time during the
review, direct that the Tribunal be reconstituted (whether or not it has
previously been reconstituted under this Division) by:
(a) adding one or more members; or
(b) removing one or more members; or
(c) substituting one or more members;
(or any combination of these), if he or she thinks the reconstitution is in
the interests of achieving the object set out in paragraph 3(c).
Reconstitution on request by one participant
(1) A participant may, at any time during the review, apply to the
Tribunal requesting that the Tribunal be reconstituted (whether or not it has
previously been reconstituted under this Division).
Tribunal action on the request
(2) If a participant does so, the Tribunal must:
(a) invite the other participants to make submissions, either orally or in
writing, about the request; and
(b) notify the President that the request has been made; and
(c) give the President:
(i) particulars of any submissions made in response to the invitation;
and
(ii) any comments the Tribunal may wish to make in relation to the request
or the submissions.
(3) Subject to section 73, the President may, after taking into
account any such particulars and comments, direct that the Tribunal be
reconstituted.
A direction under section 70, 71 or 72 cannot be given unless the
Tribunal could have been constituted, on the assumption that it were being
constituted for the first time in accordance with section 69, by the member
or members who, in accordance with the direction, are to constitute the
Tribunal.
If the Tribunal is reconstituted for the purpose of the review, the
Tribunal must continue and finish the review and may, for that purpose, have
regard to:
(a) any record of the review (including of any evidence given) made by the
Tribunal as previously constituted; and
(b) any document or thing relating to the review held by the Tribunal as
previously constituted.
Members must comply with any directions by the President under this
Division.
The Chief Executive Officer must arrange for the decision-maker to be
given notice in writing of an application for:
(a) review of an original decision; or
(b) leave to make an application for review of a first-tier decision;
or
(c) review of a first-tier decision.
(1) If the decision-maker is given notice in writing of an application for
review of an original decision, the decision-maker must, subject to this
section, before the end of 28 days after the day on which he or she receives
notice of the application, give the Tribunal:
(a) a statement of reasons for the decision; and
(b) every other document or part of a document that is in the
decision-maker’s possession or under the decision-maker’s control
and is relevant to the Tribunal’s review of the decision.
Practice and procedure directions may vary requirements
(2) The practice and procedure directions may provide that, in relation to
particular kinds of application:
(a) a different number or different numbers of days than the 28 specified
in subsection (1) are to apply; or
(b) decision-makers are not required to comply with paragraph (1)(b)
in relation to particular kinds of document or to all documents.
Extension of time limit
(3) The Tribunal may, on application by the decision-maker, extend the
period of 28 or different number of days otherwise applicable for the purposes
of subsection (1), if it is satisfied that it is reasonable in all the
circumstances to do so.
(4) An application under subsection (3) may be made even after the
end of the period.
(1) If:
(a) in accordance with paragraph 77(1)(a), the decision-maker gives the
Tribunal a statement of reasons for a decision; and
(b) the Tribunal considers that the statement does not contain:
(i) adequate particulars of findings on material questions of fact;
or
(ii) an adequate reference to the evidence or other material on which
those findings were based; or
(iii) adequate particulars of the reasons for the decision;
the Tribunal may give the decision-maker a notice in writing to that
effect:
(c) specifying the respects in which the statement is not adequate;
and
(d) requiring the decision-maker to give the Tribunal, within a period
specified in the notice, an additional statement, or additional statements,
containing adequate particulars of the findings or reasons, or an adequate
reference to the evidence.
(2) The decision-maker must comply with the requirement.
(1) In the case of review of either an original decision or a first-tier
decision, if the Tribunal considers that the decision-maker has or may have in
his or her possession or under his or her control a document that may be
relevant to the review of the decision by the Tribunal, the Tribunal may give
the decision-maker a notice in writing to that effect, requiring the
decision-maker to give the document to the Tribunal within a specified
period.
(2) If the document is in the possession or under the control of the
decision-maker, the decision-maker must comply with the requirement.
If:
(a) at any time during the review of a decision, a document that is
relevant to the review comes into the possession or under the control of a
participant in the review; and
(b) the document was not one produced in connection with any
participant’s participation in the review;
the participant must give the document to the Tribunal before the end of 28
days after the day on which the document came into the possession or under the
control of the participant.
The practice and procedure directions may require the Chief Executive
Officer to arrange for a copy of any document or part of a document given to the
Tribunal under any of sections 77 to 80 to be given to
participants.
Common law grounds for non-compliance overridden
(1) Sections 77 to 81 have effect in spite of any rule of law
relating to privilege or the public interest in relation to the production of
documents.
Non-compliance for reasons of confidentiality
(2) If, within the period within which the decision-maker is required to
give the Tribunal a document or part of a document under paragraph 77(1)(b),
subsection 79(2) or section 80, the decision-maker:
(a) applies to the Tribunal under subsection (3) for a decision in
relation to the document or part; and
(b) gives a copy of the application for the decision to each
participant;
the decision-maker is not required to comply with the
requirement:
(c) before the Tribunal makes its decision under subsection (4) on
the application; and
(d) afterwards, if the decision is that the decision-maker should not be
required to give the document or the part to the Tribunal.
Application for decision on confidentiality grounds
(3) If the decision-maker considers that, because of the need to protect
the confidential nature of the document or part, he or she should not be
required to give the document or the part to the Tribunal, he or she may apply
to the Tribunal for a decision under subsection (4).
Decision by Tribunal
(4) The Tribunal must decide whether the decision-maker should or should
not be required to give the document or the part to the Tribunal, and must take
as the basis for making its decision the principle that it is desirable, in the
interest of ensuring the effective performance of the Tribunal’s
functions, for the Tribunal and all participants in a review to be made aware of
all relevant matters.
If a participant gives the Tribunal a document, the Tribunal must allow
the participant to have reasonable access to the document while it is held by
the Tribunal.
(1) Subject to paragraphs 128(1)(e) and 129(d) (about failure to attend
etc.) and to this Division, each of the following is a participant
in a review by the Tribunal of a decision:
(a) the applicant;
(b) the decision-maker;
(c) the Attorney-General of the Commonwealth, a State, the Australian
Capital Territory or the Northern Territory, if he or she becomes a participant
under section 86;
(d) any other person, if:
(i) the person applies to the Tribunal to become a participant in the
review; and
(ii) the Tribunal is satisfied that the person’s interests are
affected by the decision; and
(iii) the Tribunal considers it appropriate that the person become a
participant in the review.
Additional participants in second-tier review
(2) In the case of a second-tier review, any person who was a participant
at any time during the first-tier review concerned is also a
participant.
First-tier review Tribunal members not participants in second-tier
review
(3) To avoid doubt, in the case of a second-tier review, the member or
members who made the first-tier decision concerned are not participants in the
review.
Decision-maker may decline to be a participant
(1) Subject to subsection (3), the decision-maker is not a
participant in the review of the decision for so long as there is in force a
written notice that was given to the Tribunal by the decision-maker and states
that he or she does not wish to be, or to continue to be, a participant in the
review.
Agency Head etc. may stop decision-maker being a
participant
(2) Subject to subsection (3), the decision-maker is not a
participant in the review of the decision (the subject decision)
for so long as there is in force a written notice that:
(a) was given to the Tribunal by the Agency Head of the Agency, or by the
person who manages the other organisation or body, in which the decision-maker
is performing duties; and
(b) states that the Agency Head or person who manages the organisation or
body does not wish decision-makers in relation to:
(i) all decisions; or
(ii) a specified class of decisions that covers the subject
decision;
who are performing duties in the Agency, organisation or body to be, or
to continue to be, participants in the review by the Tribunal of the
decision-maker’s decisions.
Agency Head may require decision-maker to be a participant
(3) If:
(a) the decision-maker is, because of subsection (1) or (2), not a
participant in the review of the decision; and
(b) the Agency Head of the Agency, or the person who manages the
organisation or body, in which the decision-maker is performing duties gives
written notice to the Tribunal that he or she wishes the decision-maker to be a
participant in the review;
the decision-maker is a participant in the review for so long as the notice
is in force.
Attorney-General of the Commonwealth
(1) The Attorney-General may become, or later cease to be, a participant
in the review on behalf of the Commonwealth by advising the Tribunal that he or
she wishes to do so.
Attorney-General of a State, the ACT or the NT
(2) If:
(a) the review is conducted by the Tribunal under power conferred on it by
or under a law of a State, the Australian Capital Territory or the Northern
Territory; or
(b) the Attorney-General of a State, the Australian Capital Territory or
the Northern Territory gives a certificate under subsection 101(1); or
(c) the Attorney-General of a State, the Australian Capital Territory or
the Northern Territory informs the Tribunal as mentioned in subparagraph
102(1)(b)(ii);
the Attorney-General of the State or Territory may become, or later cease
to be, a participant in the review on behalf of the State or the Territory by
advising the Tribunal that he or she wishes to do so.
Costs
(3) If the Attorney-General of the Commonwealth becomes a participant, the
Attorney-General may authorise the Commonwealth to pay another participant any
costs that the Attorney-General considers the participant reasonably incurred as
a result of the Attorney-General becoming a participant.
(1) A person who is a participant other than the applicant, the
decision-maker or an Attorney General may apply to the Tribunal to cease to be a
participant.
(2) If the Tribunal considers it appropriate that the person cease to be a
participant, it must so direct.
Note: The provisions of this Division are core provisions.
Other Acts are to be interpreted as far as possible as not changing the
provisions, and subordinate legislation providing for Tribunal review cannot
change them: see section 7.
(1) This section applies if 2 or 3 members constitute the
Tribunal.
President
(2) If the members include the President, he or she presides.
Executive member
(3) If the members do not include the President, but include an executive
member, the executive member presides.
Senior member
(4) If the members do not include the President or an executive member,
but include one senior member, the senior member presides.
Other member
(5) Otherwise, the President must choose one of the members who constitute
the Tribunal to preside.
2 members
(1) If 2 members constitute the Tribunal and they do not agree about any
matter, the view of the presiding member prevails.
3 members
(2) If 3 members constitute the Tribunal and they do not agree about any
matter:
(a) if the majority agree—the view of the majority prevails;
and
(b) if not—the view of the presiding member prevails.
In reviewing a decision, the Tribunal must afford procedural
fairness.
Note: This section is a core provision. Other Acts are to be
interpreted as far as possible as not changing the section, and subordinate
legislation providing for Tribunal review cannot change it: see
section 7.
In reviewing a decision, the Tribunal is not bound by the rules of
evidence, but may inform itself on any matter in such manner as it thinks
appropriate.
Note: This section is a core provision. See the note to
section 90.
In reviewing a decision, the Tribunal must act with as little formality
and technicality as a proper consideration of the matters before the Tribunal
permits.
Note: This section is a core provision. See the note to
section 90.
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.
If the decision-maker is a participant in the review of a decision, the
decision-maker must use his or her best endeavours in assisting the Tribunal to
make its decision on the review.
Summoning persons
(1) In reviewing a decision, the Tribunal may summon a person to do either
or both of the following:
(a) appear before the Tribunal to give evidence;
(b) give the Tribunal documents or things that are:
(i) in the possession or under the control of the person; and
(ii) identified in the summons.
Persons appearing before the Tribunal
(2) In reviewing a decision, the Tribunal may require a person who is
appearing before the Tribunal to give evidence:
(a) to answer a question; or
(b) to give the Tribunal documents or things that are in the possession or
under the control of the person.
Access to documents etc.
(3) If a person gives the Tribunal a document or thing in accordance with
this section, the Tribunal must allow the person to have reasonable access to
the document or thing while it is held by the Tribunal.
Purposes for which participants may appear before Tribunal
(1) At any stage in the review of a decision, the Tribunal may permit a
participant to appear before the Tribunal and, subject to subsection (2),
do any one or more of the following in relation to the review:
(a) give evidence;
(b) make statements;
(c) present arguments;
(d) answer questions put by the Tribunal, other participants or
representatives of participants;
(e) ask questions of the Tribunal, other participants, persons giving
evidence to the Tribunal or representatives of participants or of persons giving
evidence.
Tribunal’s control over appearance by persons
(2) The Tribunal may:
(a) impose conditions on the person appearing or doing any of the one or
more things; or
(b) at any time withdraw its permission to appear or do any of the one or
more things; or
(c) direct the person as to the manner in which the person is to do any of
the one or more things; or
(d) proceed in the absence of the person if the person has been given
reasonable notice of the time at which the person is permitted to
appear.
Review “on the papers”
(3) Without limiting subsection (1), when:
(a) the decision-maker has given the Tribunal the statement of reasons and
any other documents required by section 77, and any other statement of
reasons required by section 78; and
(b) the applicant has had an opportunity to give the Tribunal any
documents he or she wishes;
the Tribunal must consider whether the review should be conducted without
any participant being permitted to appear and do any of the things mentioned in
subsection (1), and without any person being summoned to appear before the
Tribunal to give evidence.
(4) If the Tribunal considers that the review should be conducted in the
manner mentioned in subsection (3):
(a) before conducting the review in that manner, it must give notice in
writing to all participants that it intends to do so, and give them an
opportunity to give written submissions to the Tribunal about whether the review
should be conducted in that manner; and
(b) it must take into account any such submissions; and
(c) if, after doing so, the Tribunal still considers that the review
should be conducted in the manner mentioned in subsection (3), it may
conduct the review in that manner, but may also at any time cease to do
so.
(1) The Tribunal may in writing authorise:
(a) a consultant with appropriate expertise to be engaged under
section 48; or
(b) a member (whether or not a member of the Tribunal as constituted for
the purposes of the review), the Chief Executive Officer, staff or any other
person;
to take evidence on behalf of the Tribunal in accordance with any
requirements set out in the authorisation.
Single Tribunal member
(2) However, if the Tribunal is constituted by a single member, that
member cannot be authorised under subsection (1).
Taking of evidence is part of conduct of review
(3) To avoid doubt, the taking of evidence in accordance with
subsection (1) is part of the conduct of the review by the
Tribunal.
(1) Any evidence given under section 95 or 96 or taken under
section 97 must be on oath or affirmation.
(2) However, subsection (1) does not apply if:
(a) the practice and procedure directions so provide; or
(b) the Tribunal decides that the subsection should not apply to the
giving of the evidence.
(3) An oath or affirmation must be in the form and manner prescribed by
the regulations.
If the Tribunal is reviewing a first-tier decision, the Tribunal may have
regard to:
(a) any record (including of any evidence given) made by the Tribunal in
conducting the first-tier review that resulted in that decision; and
(b) any document relating to that review held by the Tribunal.
(1) Subject to this section, if a participant or any other person appears
before the Tribunal in a review, that part of the review is to be in
public.
Where electronic media etc. used
(2) If, when a part of a review is in public, a participant or any other
person appears before the Tribunal by a means allowed under section 104
(about using electronic media etc.), the Tribunal must take such steps as are
reasonably necessary to ensure that the public nature of the part of the review
is preserved.
Protection of confidential nature of review
(3) The Tribunal may give such written directions as it considers
appropriate to protect the confidential nature of any part of the
review.
Confidentiality directions
(4) Without limiting subsection (3), such directions may:
(a) require that some or all of the part of the review take place in
private and that only specified persons may be present; or
(b) prohibit or restrict the disclosure to any participant or other person
of:
(i) the names and addresses of participants or other persons appearing
before the Tribunal; or
(ii) statements made to the Tribunal; or
(iii) evidence given to the Tribunal; or
(iv) matters contained in documents given to the Tribunal; or
(v) the nature of other things given to the Tribunal;
whether in public or in private.
Matters to be considered by Tribunal in giving confidentiality
directions about disclosure to participants
(5) The Tribunal must, in considering whether to give a direction under
paragraph (4)(b) restricting disclosure to some or all of the participants,
take as the basis of its consideration the principle that it is desirable, in
the interest of ensuring the effective performance of the Tribunal’s
functions, for the participants in a review to be made aware of all relevant
matters.
Public interest certificate
(1) This section applies if the Attorney-General of the Commonwealth, a
State, the Australian Capital Territory or the Northern Territory certifies in
writing that the disclosure of specified information, or the disclosure of any
matter contained in a specified document, for the purposes of the review of a
decision would be contrary to the public interest for any of the reasons set out
in subsection (2) or (3), as the case requires.
Commonwealth Attorney-General
(2) In the case of the Attorney-General of the Commonwealth, the reasons
are:
(a) the disclosure would prejudice the security, defence or international
relations of the Commonwealth; or
(b) the disclosure would involve the disclosure of deliberations or
decisions of the Cabinet or of a Committee of the Cabinet; or
(c) any other reason 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.
State or Territory Attorney-General
(3) In the case of the Attorney-General of a State, the Australian Capital
Territory or the Northern Territory, the reasons are:
(a) the disclosure would involve the disclosure of deliberations or
decisions of the Cabinet, or of a Committee of the Cabinet, of the State or
Territory; or
(b) any other reason that could form the basis for a claim by the Crown in
right of the State or the Territory in a judicial proceeding that the
information or the matter contained in the document should not be
disclosed.
Person not excused from disclosing information or giving document to the
Tribunal
(4) If this section applies, a person is not excused from disclosing the
information, or giving the document, to the Tribunal for the purposes of the
review of a decision if the person is required by or under this Act to do
so.
Tribunal to protect information or document
(5) However, the Tribunal must do all things necessary to ensure
that:
(a) subject to subsection (6), the information, or the matter
contained in the document, is not disclosed to any person other than:
(i) a member of the Tribunal as constituted for the purposes of the
review; or
(ii) the Chief Executive Officer, staff or a consultant in the course of
the performance of his or her duties as the Chief Executive Officer, staff or a
consultant; and
(b) in the case of a document given to the Tribunal—the document is
returned, to the person who gave it to the Tribunal, as soon as practicable
after the Tribunal has finished considering the document.
Limited disclosure
(6) If the certificate:
(a) in the case of the Attorney-General of the Commonwealth—does not
specify a reason mentioned in paragraph (2)(a) or (b); or
(b) in the case of the Attorney-General of a State or Territory—does
not specify a reason mentioned in paragraph (3)(a);
the Tribunal must:
(c) consider whether the information or the matter should be disclosed to
all or any of the participants in the review; and
(d) if the Tribunal decides that the information or the matter should be
so disclosed—make the information available, or permit the part of the
document containing the matter to be inspected, accordingly.
Matters to be considered by Tribunal in allowing disclosure to
participants
(7) The Tribunal must, in considering whether information or matter
contained in a document should be disclosed as mentioned in
subsection (6):
(a) take as the basis of its consideration the principle that it is
desirable, in the interest of ensuring the effective performance of the
Tribunal’s functions, for the participants in a review to be made aware of
all relevant matters; and
(b) have due regard to any reason specified in the certificate.
Exclusion of other laws
(8) This section excludes the operation of any law that relates to the
public interest and would otherwise apply in relation to the disclosure of
information, or of matter contained in documents, in a review by the
Tribunal.
(1) If, in the review of a decision:
(a) a person is asked a question in the course of giving evidence;
and
(b) either:
(i) the Attorney-General of the Commonwealth informs the Tribunal that, in
his or her opinion, answering the question would be contrary to the public
interest for a specified reason that is mentioned in subsection 101(2);
or
(ii) the Attorney-General of a State, the Australian Capital Territory or
the Northern Territory informs the Tribunal that, in his or her opinion,
answering the question would be contrary to the public interest for a specified
reason that is mentioned in subsection 101(3);
the person is, subject to subsections (2) and (3), excused from
answering the question.
Court decision
(2) The person must answer the question if:
(a) either:
(i) the Attorney-General of the Commonwealth informed the Tribunal as
mentioned in subparagraph (1)(b)(i) and the reason specified as mentioned
in that subparagraph was that set out in paragraph 101(2)(a) or (b);
or
(ii) the Attorney-General of a State or Territory informed the Tribunal as
mentioned in subparagraph (1)(b)(ii) and the reason specified as mentioned
in that subparagraph was that set out in paragraph 101(3)(a); and
(b) a court, on an appeal under section 167 or a reference under
section 172, decides that answering the question would not be contrary to
the public interest.
Tribunal decision
(3) The person must answer the question if:
(a) paragraph (2)(a) does not apply; and
(b) the Tribunal decides that answering the question would not be contrary
to the public interest.
Appearance by Commonwealth, State or Territory
Attorney-General
(4) The Attorney-General of the Commonwealth, a State or a
Territory:
(a) may appear before the Tribunal personally, or may be represented
before the Tribunal by a barrister, solicitor or other person, in order to
inform the Tribunal of his or her opinion in accordance with this section;
or
(b) may inform the Tribunal by giving the Tribunal a written certificate
setting out his or her opinion.
Tribunal to inform participants of decisions
(1) As soon as practicable after making:
(a) a decision under subsection 101(6) in relation to information, or
matter contained in a document; or
(b) a decision under paragraph 102(3)(b) in relation to the answering of a
question;
the Tribunal must give each participant in the review a written statement
of the terms of the Tribunal’s decision.
Questions of law
(2) For the purposes of this Act, the following are questions of
law:
(a) the question whether information, or matter contained in a document,
should be disclosed to the participants in a review;
(b) the question whether the answering of a question would be contrary to
the public interest.
(1) The practice and procedure directions may permit members or other
persons to take part in any part of the review by means of:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.
(2) Any member who takes part by such means is taken to be present, and
any other person who does so is taken to appear before the Tribunal, for the
part of the review concerned.
Subject to subsection 102(4), if a person is required or permitted to
appear before the Tribunal, he or she may choose someone else to represent him
or her before the Tribunal, provided:
(a) the Tribunal agrees; and
(b) the practice and procedure directions do not prohibit him or her from
doing so.
(1) This section applies if a person is required or permitted to appear
before the Tribunal during the review of a decision.
Person applies for assistance
(2) If:
(a) the person applies in writing to the Tribunal for permission to be
assisted by an interpreter, or by someone else chosen by the person to help the
person understand what is happening; and
(b) the Tribunal considers that it is appropriate for such assistance to
be provided, and that the interpreter or other person chosen has suitable
qualifications or skills to provide the assistance;
the person may be so assisted.
Tribunal initiates assistance
(3) If the Tribunal decides that the person should be assisted
by:
(a) an interpreter made available by the Tribunal; or
(b) someone else who is chosen by the Tribunal to help the person
understand what is happening and who agrees to provide that help;
the person may be so assisted.
Note: This section is a core provision. Other Acts are to be
interpreted as far as possible as not changing the section, and subordinate
legislation providing for Tribunal review cannot change it: see
section 7.
The practice and procedure directions may deal with:
(a) the practice and procedure to be followed by the Tribunal in
conducting a review; or
(b) matters and things incidental to any such practice or
procedure.
Note 1: Division 10 of Part 9 deals with the
making of practice and procedure directions. Amongst other things, that Division
provides that the directions cannot be inconsistent with this
Act.
Note 2: This section is a core provision. Other Acts are to
be interpreted as far as possible as not changing the section, and subordinate
legislation providing for Tribunal review cannot change it: see
section 7.
(1) Subject to this section, the Tribunal may determine its own practice
and procedure for the conduct of a review.
Tribunal may require participants etc. to do things
(2) The practice and procedure that the Tribunal determines may require
the participants or other persons involved in the review to do specified
things.
Explanations to participants etc.
(3) The Tribunal must take such measures as are reasonably
practicable:
(a) to ensure that the participants or other persons involved in the
review understand the nature of any assertions made in the review and the legal
implications of those assertions; and
(b) if requested to do so—to explain to the participants or persons
any aspect of the procedure of the Tribunal, or any decision made by the
Tribunal, that relates to the review.
Determinations must not be inconsistent with Act etc.
(4) The Tribunal must not make a determination under this section that is
inconsistent with this Act or the practice and procedure directions.
Note: This section is a core provision. Other Acts are to be
interpreted as far as possible as not changing the section, and subordinate
legislation providing for Tribunal review cannot change it: see
section 7.
If, at any stage in the review of a decision:
(a) the participants agree about the terms of any decision (other than one
under section 133), or about any action, that they wish the Tribunal to
take in relation to the review or any part of the review; and
(b) they advise the Tribunal of their agreement; and
(c) the Tribunal is satisfied that a decision or action in, or consistent
with, those terms would be within its powers;
the Tribunal may make a decision or take action in accordance with, or
consistent with, those terms.
(1) The practice and procedure directions may permit or require that, at
any time or at particular times during the review of a decision:
(a) a conference of the participants be held; or
(b) the participants take part in some other process;
for the purpose of resolving issues relevant to the review or for any other
purpose relating to the review.
Note: Division 10 of Part 9 deals with the making
of practice and procedure directions.
Practice and procedure applicable to the conference or
process
(2) The practice and procedure directions may deal with the practice and
procedure that is to apply to the conduct of the conference or other process,
including:
(a) providing for members, the Chief Executive Officer, staff or
consultants to preside over or perform other functions in the conference or
process; and
(b) permitting members, the Chief Executive Officer, staff or consultants
who preside or otherwise perform functions to decide some or all of the practice
and procedure; and
(c) subject to this Act, providing for the consequences of the conference
or process for the conduct of the review by the Tribunal.
Inadmissibility of statements etc. made in conferences or other
processes
(3) Unless all the participants agree, evidence of, and statements about,
anything said or done in such a conference or process are not
admissible:
(a) in any court; or
(b) in any proceeding before a person authorised by:
(i) a law of the Commonwealth or of a State or Territory; or
(ii) the consent of the participants;
to hear evidence or take statements.
Exclusion of member from later review
(4) If:
(a) the conference or other process is presided over by a member;
and
(b) a participant notifies the Tribunal in writing that he or she objects
to that member continuing to be, or becoming, a member of the Tribunal as
constituted for the purposes of the review;
that member must not at any later time be a member of the Tribunal as
constituted for the purposes of:
(c) the review; and
(d) if the review is a first-tier review—any second-tier review that
results from the first-tier review.
(1) The Tribunal may, at any stage during the review of a
decision:
(a) arrange for a consultant with appropriate expertise to be engaged
under section 48; or
(b) appoint a member (whether or not a member of the Tribunal as
constituted for the purposes of the review), the Chief Executive Officer or
staff;
(which consultant, member, Chief Executive Officer or staff is the
inquiry officer) to:
(c) conduct an inquiry into any issue raised in, or other matter connected
with, the review; and
(d) report to the Tribunal on the outcome of the inquiry.
(2) However, if the Tribunal is constituted by a single member, that
member cannot be appointed under subsection (1).
The inquiry officer may determine the scope of the inquiry by limiting
the questions of fact, the evidence and the issues that he or she
considers.
Summoning persons
(1) In conducting the inquiry, the inquiry officer may, subject to the
practice and procedure directions, summon a person to do either or both of the
following:
(a) appear before the inquiry officer to give evidence;
(b) give the inquiry officer documents or things that are:
(i) in the possession or under the control of the person; and
(ii) identified in the summons.
Persons appearing before the inquiry officer
(2) In conducting the inquiry, the inquiry officer may, subject to the
practice and procedure directions, require a person who is appearing before the
inquiry officer to give evidence:
(a) to answer a question; or
(b) to give the inquiry officer documents or things that are in the
possession or under the control of the person.
Giving copies of documents to participants
(3) The practice and procedure directions may require the Chief Executive
Officer to arrange for a copy of any document or part of a document given to the
inquiry officer under this section to be given to the participants in the
review.
Inquiry officer to give documents to Tribunal
(4) When the inquiry officer gives his or her report on the outcome of the
inquiry to the Tribunal, the inquiry officer must also give the Tribunal any
documents or things that were given to the inquiry officer in accordance with
this section.
Access to documents etc.
(5) If a person gives the inquiry officer a document or thing, then, while
the document or thing is held by the inquiry officer or by the Tribunal, the
inquiry officer or the Tribunal must allow the person to have reasonable access
to the document or thing.
(1) At any stage in the inquiry, the inquiry officer may permit a
participant in the review to appear before the inquiry officer and, subject to
this section, do any one or more of the following in relation to the
inquiry:
(a) give evidence;
(b) make statements;
(c) present arguments;
(d) answer questions put by the inquiry officer, other participants in the
review or representatives of participants;
(e) ask questions of the inquiry officer, other participants in the
review, persons giving evidence to the inquiry officer or representatives of
participants or of persons giving evidence.
Inquiry officer’s control over appearance by persons
(2) The inquiry officer may:
(a) impose conditions on the participant appearing or doing any of the one
or more things; or
(b) at any time withdraw permission to appear or do any of the one or more
things; or
(c) direct the participant as to the manner in which the participant is to
do any of the one or more things; or
(d) proceed in the absence of the participant if the participant has been
given reasonable notice of the time at which the participant is permitted to
appear.
Section is subject to practice and procedure directions
(3) This section has effect subject to the practice and procedure
directions.
(1) Any evidence given under section 113 or 114 must be on oath or
affirmation.
(2) However, subsection (1) does not apply if:
(a) the practice and procedure directions so provide; or
(b) the inquiry officer decides that the subsection should not apply to
the giving of the evidence.
(3) An oath or affirmation must be in the form and manner prescribed by
the regulations.
The practice and procedure directions may deal with the practice and
procedure to be followed by the inquiry officer in conducting the inquiry
(including permitting the inquiry officer to decide some or all of the practice
and procedure).
Note 1: Division 10 of Part 9 deals with the
making of practice and procedure directions.
Note 2: This section is a core provision. Other Acts are to
be interpreted as far as possible as not changing the section, and subordinate
legislation providing for Tribunal review cannot change it: see
section 7.
(1) Subject to this section, the inquiry officer may determine his or her
own practice and procedure for the conduct of the inquiry.
Inquiry officer may require participants etc. to do things
(2) The practice and procedure that the inquiry officer determines may
require the participants in the review or other persons involved in the inquiry
to do specified things.
Explanations to participants etc.
(3) The inquiry officer must take such measures as are reasonably
practicable:
(a) to ensure that the participants or other persons involved in the
inquiry understand the nature of any assertions made in the inquiry and the
legal implications of those assertions; and
(b) if requested to do so—to explain to the participants or persons
any aspect of the procedure of the inquiry officer, or any decision made by the
inquiry officer, that relates to the inquiry.
Determinations not to be inconsistent with Act etc.
(4) The inquiry officer must not make a determination under this section
that is inconsistent with this Act or the practice and procedure
directions.
(1) As soon as practicable after the inquiry officer gives the Tribunal
his or her report on the outcome of the inquiry, the Tribunal must give a copy
of the report to the participants in the review.
(2) The Tribunal may adopt anything in the report. However, before doing
so, it must:
(a) give the participants an opportunity to make submissions to it, either
orally or in writing, about the content of the report; and
(b) take into account any such submissions.
If:
(a) the inquiry officer is a member of the Tribunal; and
(b) a participant in the review notifies the Tribunal in writing that he
or she objects to that member continuing to be, or becoming, a member of the
Tribunal as constituted for the purposes of the review;
that member must not at any later time be a member of the Tribunal as
constituted for the purposes of:
(c) the review; and
(d) if the review is a first-tier review—any second-tier review that
results from the first-tier review.
(1) There are 2 circumstances in which all review and appeal action
has been finalised in relation to an original decision.
First circumstance
(2) One circumstance is when:
(a) a first-tier decision has come into operation, where that decision
resulted from a first-tier review of the original decision; and
Note: A Tribunal decision need not come into operation when
it is made: see subsection 135(2).
(b) participants have become entitled to appeal to the Federal Court under
section 167 from the first-tier decision; and
Note: Participants can only become entitled to appeal in
limited circumstances: see subsection 167(1).
(c) either:
(i) the period for appealing has ended without any such appeals being
made; or
(ii) one or more such appeals have been made, and the Federal Court or
Federal Magistrates Court has determined all of them.
Second circumstance
(3) The other circumstance is when:
(a) a second-tier decision has come into operation, where:
(i) that decision resulted from a second-tier review of a first-tier
decision; and
(ii) the first-tier decision resulted from a first-tier review of the
original decision; and
(b) either:
(i) the period during which participants are entitled to appeal to the
Federal Court under section 167 from the second-tier decision has ended
without any such appeals being made; or
(ii) one or more such appeals have been made, and the Federal Court or
Federal Magistrates Court has determined all of them.
Basic rule—review not to affect implementation of
decision
(1) Subject to this section, the making of an application to the Tribunal
for:
(a) review of an original decision; or
(b) leave to make an application for review of a first-tier decision;
or
(c) review of a first-tier decision;
does not affect the operation of the decision or prevent the taking of
action to implement the decision.
Pre-conditions for giving a stay direction
(2) If an application is made for review of an original decision or a
first-tier decision and the requirements of subsection (5) are met, the
Tribunal may give a direction in writing under subsection (3) or (4) at any
time during the review of the decision.
Staying of implementation of decision during first-tier
review
(3) In the case of review of an original decision, the Tribunal may direct
that the operation or implementation of the decision or a part of the decision
be stayed or otherwise affected for some or all of the time before all review
and appeal action has been finalised in relation to the decision.
Staying of implementation of decisions during second-tier
review
(4) In the case of review of a first-tier decision, the Tribunal may
direct that the operation or implementation of either or both of the
following:
(a) the decision or a part of the decision;
(b) the original decision whose review resulted in the first-tier
decision, or a part of that original decision;
be stayed or otherwise affected for some or all of the time before all
review and appeal action has been finalised in relation to the original
decision.
Requirements for stay direction
(5) The requirements for the purposes of subsection (2) are
that:
(a) a participant in the review has made an application requesting the
Tribunal to give such a direction; and
(b) the Tribunal, after taking into account the interests of any persons
who may be affected by the decision, considers it desirable to give the
direction for the purpose of ensuring that the review of the decision will be
effective.
Direction may be subject to conditions
(6) The direction under subsection (3) or (4) may be stated to have
effect subject to specified conditions.
Variation or revocation of stay direction
(7) The Tribunal may, on application by any participant in the review,
vary or revoke a direction under subsection (3) or (4) (including one that
has previously been varied on one or more occasions under this
subsection).
Where first-tier stay direction in force when first-tier decision
made
(1) If:
(a) during its first-tier review of an original decision, the Tribunal
gives a direction under subsection 121(3) staying the operation or
implementation of that decision; and
(b) the direction is in force immediately before the Tribunal makes its
first-tier decision;
then, subject to this section, the operation or implementation of the
following are stayed until all review and appeal action has been finalised in
relation to the original decision:
(c) the original decision;
(d) the first-tier decision;
(e) any second-tier decision on any review of the first-tier
decision.
Where second-tier stay direction in force when second-tier decision
made
(2) If:
(a) during its second-tier review of a first-tier decision, the Tribunal
gives a direction under subsection 121(4) staying the operation or
implementation of either or both of the following:
(i) that decision;
(ii) the original decision whose first-tier review resulted in that
decision, or a part of that original decision; and
(b) the direction is in force immediately before the Tribunal makes its
second-tier decision;
then, subject to this section, the operation or implementation of the
following are stayed until all review and appeal action has been finalised in
relation to the original decision whose review resulted in the first-tier
decision:
(c) the decision or decisions whose operation or implementation is stayed
as mentioned in paragraph (a);
(d) the second-tier decision.
Ending the stay of a decision
(3) The following may direct that the operation or implementation of a
decision is not stayed as mentioned in subsection (1) or (2):
(a) the Tribunal, at any time before any appeal is made to the Federal
Court under section 167 from the first-tier decision or the second-tier
decision mentioned in subsection (1) or (2) of this section;
(b) the Federal Court, at any time after an appeal has been made under
section 167 from the first-tier decision or the second-tier decision
mentioned in subsection (1) or (2) of this section and before the earlier
of the following happens:
(i) the Federal Court determines the appeal;
(ii) the appeal is transferred to the Federal Magistrates Court under
section 170;
(c) the Federal Magistrates Court, at any time after an appeal mentioned
in paragraph (b) is transferred to it and before it determines the
appeal.
(1) Subject to subsection (2) and to sections 124 and
125:
(a) during the review of an original decision, the decision-maker must not
alter the decision otherwise than in accordance with this Part until all review
and appeal action has been finalised in relation to the decision; and
(b) during the review of a first-tier decision, the decision-maker must
not alter the original decision whose review resulted in the first-tier decision
(including that original decision as varied by the first-tier decision)
otherwise than in accordance with this Part until all review and appeal action
has been finalised in relation to the original decision.
Exception
(2) Subsection (1) does not apply if:
(a) the enactment that authorised the making of the application expressly
permits the original decision to be altered; or
(b) the participants in the review consent to the making of the
alteration.
Meaning of alter
(3) In this section:
alter a decision means:
(a) vary the decision; or
(b) set the decision aside; or
(c) set the decision aside and make a decision in substitution for the
decision.
(1) If, during the review of a decision, the Tribunal becomes aware that
information that it has, or that is given to it, is new information (see
subsection (7)), the Tribunal must decide whether to:
(a) refer the new information to the decision-maker; and
(b) ask the decision-maker to reconsider:
(i) in the case of the first-tier review of an original decision—the
original decision; or
(ii) in the case of the second-tier review of a first-tier
decision—the original decision whose review resulted in the first-tier
decision (including that original decision as varied by the first-tier
decision);
having regard to the new information.
Factors to be taken into account
(2) In making a decision under subsection (1), the Tribunal must take
into account:
(a) whether the new information was known to the applicant before the
original decision was made and, if so, whether the applicant had a reasonable
explanation for not informing the decision-maker about it; and
(b) whether it would be more efficient, having regard to the likely cost
to the Commonwealth and any other matter, for the Tribunal not to do as
mentioned in subsection (1), but instead to continue to conduct the review;
and
(c) any matter required to be taken into account by the practice and
procedure directions.
Reconsideration by decision-maker
(3) If the Tribunal refers the new information to the decision-maker and
asks the decision-maker to reconsider the original decision having regard to the
new information, the decision-maker must do so, and must then do one of the
following:
(a) affirm the decision;
(b) vary the decision;
(c) set aside the decision and make a new decision in substitution for the
decision set aside.
Time limit on reconsideration
(4) The decision-maker must comply with subsection (3) by the end of
28 days after the day on which the new information is referred, or by the end of
such earlier or later day as the Tribunal specifies when referring the new
information.
(5) The Tribunal may, on application by the decision-maker, fix a later
day as the day applicable under subsection (4).
(6) If the decision-maker does not comply with subsection (3) by the
end of the applicable day, he or she is taken to have affirmed the original
decision.
Meaning of new information
(7) In this section:
new information means information in respect of which the
following requirements are satisfied:
(a) the decision-maker was unaware of the information, or the information
did not exist, at the time of making:
(i) in the case of first-tier review of an original decision—the
original decision; or
(ii) in the case of second-tier review of a first-tier decision—the
original decision whose review resulted in the first-tier decision;
(b) if the decision-maker had been aware of the information at that time,
he or she may not have made the original decision, or may have made it in a
materially different way.
(1) Subject to subsection (3), the Tribunal may, at any time while it
is conducting the review of a decision, ask the decision-maker to
reconsider:
(a) in the case of first-tier review of an original decision—the
original decision; or
(b) in the case of second-tier review of a first-tier decision—the
original decision whose review resulted in the first-tier decision (including
that original decision as varied by the first-tier decision).
Reconsideration by decision-maker
(2) If the Tribunal does so, the decision-maker must reconsider the
original decision and must also do one of the following:
(a) affirm the decision;
(b) vary the decision;
(c) set aside the decision and make a new decision in substitution for the
decision set aside.
Time limit on reconsideration
(3) The decision-maker must comply with subsection (2) by the end of
28 days after the day on which the Tribunal asks the decision-maker, or by the
end of such earlier or later day as the Tribunal specifies when asking the
decision-maker.
(4) The Tribunal may, on application by the decision-maker, fix a later
day as the day applicable under subsection (3).
(5) If the decision-maker does not comply with subsection (2) by the
end of the applicable day, he or she is taken to have affirmed the
decision.
Exclusion
(6) This section does not apply if the reason, or one of the reasons, for
the Tribunal asking the decision-maker to reconsider the decision is that the
Tribunal has become aware of new information (within the meaning of subsection
124(7)).
Variation of decision
(1) If, as mentioned in section 123, 124 or 125, the decision-maker
varies the original decision:
(a) the review becomes a first-tier review of the original decision as
varied; and
(b) the applicant may either:
(i) proceed with that review; or
(ii) advise the Tribunal that the applicant does not wish to proceed with
the review.
Setting aside of decision and substituting a new decision
(2) If, as mentioned in section 123, 124 or 125, the decision-maker
sets an original decision aside and makes a new decision in substitution for the
decision set aside:
(a) the review becomes a first-tier review of the new decision;
and
(b) the applicant may either:
(i) proceed with that review; or
(ii) advise the Tribunal that the applicant does not wish to proceed with
that review.
Review to end in certain cases
(3) If:
(a) the applicant advises the Tribunal as mentioned in
subparagraph (1)(b)(ii) or (2)(b)(ii); or
(b) as mentioned in section 123, the decision-maker sets an original
decision aside without making a new decision in substitution for the decision
set aside;
the review ends.
Note: In addition to the cases set out in this Division,
subsection 126(3) (which applies if the decision-maker reconsiders the original
decision in the course of a review) may result in the review ending
early.
The applicant may, in the manner set out in the practice and procedure
directions, end the review of a decision at any time.
(1) If a participant in the review of a decision (other than the
decision-maker or an Attorney-General) fails to appear, or to be represented by
another person, at:
(a) any part of the review in which participants are required to appear
before the Tribunal; or
(b) a conference or other process that participants are required to take
part in under section 110; or
(c) any part of an inquiry in which participants are required to appear
before an inquiry officer under section 111;
the Tribunal may:
(d) if the participant is the applicant—end the review; or
(e) in any other case—direct that the participant ceases to be a
participant in the review.
Appropriate notice
(2) The Tribunal must be satisfied that appropriate notice was given to
the participant of the time and place of the part of the review, conference,
process or inquiry before exercising its powers under
subsection (1).
Participation by electronic media etc.
(3) For the purposes of subsection (1), a participant is taken to
appear, or to be represented by another person, at a part of the review,
conference, process or inquiry if the participant or the participant’s
representative participates by a means allowed under section 104 (in the
case of the review) or an equivalent provision of the practice and procedure
directions (in the case of a conference, process or inquiry).
If a participant in the review of a decision (other than the
decision-maker or an Attorney-General) fails, without reasonable excuse, to
comply with:
(a) any practice and procedure direction; or
(b) any direction given or obligation imposed by the Tribunal in
conducting the review or by an inquiry officer in conducting an
inquiry;
the Tribunal may:
(c) if the participant is the applicant—end the review; or
(d) in any other case—direct that the participant ceases to be a
participant in the review.
Note: A failure to comply with a direction or obligation may
also be an offence under section 149 (about contempt of the
Tribunal).
(1) The Tribunal may end the review of an original decision if, at any
stage of the review, the Tribunal is satisfied that the application for the
review is frivolous or vexatious.
Direction that applicant not make further application for
review
(2) If the Tribunal does so, it may by writing, on the application of a
participant in the review, direct that the applicant must not, without leave of
the Tribunal, make a subsequent application to the Tribunal of a kind or kinds
specified in the direction.
If, in the case of a second-tier review of a first-tier decision, the
Tribunal is given a written agreement, by all the persons who were participants
at any stage in the first-tier review that resulted in the first-tier decision,
to the effect that they forgo any right to have the Tribunal review the
first-tier decision, the second-tier review ends.
Application for reinstatement
(1) If the Tribunal ends its review of a decision, a participant in the
review may apply to the Tribunal for reinstatement of the review.
Power to reinstate
(2) If such an application is made, the Tribunal may reinstate the review
and give such directions as it thinks appropriate in relation to the conduct of
the review as a consequence of the reinstatement.
Guidelines
(3) The practice and procedure directions may include guidelines to be
complied with by the Tribunal in exercising the power conferred by
subsection (2).
Powers of Tribunal in reviewing an original decision
(1) For the purposes of reviewing an original decision, the Tribunal may
exercise all the powers and discretions that are conferred by any relevant
enactment on the decision-maker.
Decision on review of original decision
(2) The Tribunal must make a decision in writing:
(a) affirming the original decision; or
(b) varying the original decision; or
(c) setting aside the original decision and:
(i) making a decision in substitution for the decision so set aside;
or
(ii) remitting the matter to the decision-maker for reconsideration in
accordance with any directions or recommendations of the Tribunal.
Powers of Tribunal in reviewing a first-tier decision
(3) In reviewing a first-tier decision, the Tribunal may exercise all the
powers and discretions that are conferred by subsections (1) and (2) on the
Tribunal in reviewing the original decision that resulted in the first-tier
decision.
Decision on review of first-tier decision
(4) The Tribunal must make a decision in writing:
(a) affirming the first-tier decision; or
(b) varying the first-tier decision; or
(c) setting aside the first-tier decision and making a decision in
substitution for the decision so set aside.
Note: The Tribunal does not have power to remit the matter
to the first-tier review Tribunal for reconsideration, but it could remit it to
the decision-maker in respect of the original decision by varying or replacing
the first-tier decision.
Agreement about terms of Tribunal’s decision
(5) If:
(a) the participants agree about the terms of the decision that they wish
the Tribunal to make under this section; and
(b) they advise the Tribunal in writing of their agreement; and
(c) the Tribunal is satisfied that a decision in those terms would be
within its powers;
the Tribunal may make a decision in those terms.
(1) If a first-tier decision:
(a) varies an original decision; or
(b) sets aside an original decision and makes a new decision in
substitution for the original decision;
the original decision as varied, or the new decision made in substitution,
is, subject to subsection (3), taken to be a decision of the decision-maker
for all purposes.
(2) If a second-tier decision, by affirming, varying or setting aside a
first-tier decision as mentioned in subsection 133(4), results in:
(a) the variation of an original decision; or
(b) the setting aside of an original decision and the making of a new
decision in substitution for the original decision;
the original decision as varied, or the new decision made in substitution,
is, subject to subsection (3), taken to be a decision of the decision-maker
for all purposes.
(3) Subsections (1) and (2) do not have effect for the purposes of
applications to the Tribunal for review under Part 4 or of appeals to the
Federal Court on questions of law under section 167.
Decision comes into operation immediately
(1) Subject to this section and to section 122 (about staying etc.
decisions), a decision of the Tribunal under section 133 comes into
operation immediately after it is made.
Tribunal may specify a later day
(2) The Tribunal may specify in the decision that it is not to come into
operation until a later day specified in the decision. If a later day is so
specified, the decision comes into operation on that day.
When variations etc. of original decisions have effect
(3) When a decision of the Tribunal to which section 134 applies
comes into operation:
(a) the original decision as varied; or
(b) the new decision made in substitution for the original
decision;
has effect, or is taken to have had effect, unless the Tribunal otherwise
orders, on and from the day on which the original decision has or had
effect.
Giving reasons
(1) Subject to section 101 (which limits disclosure where a public
interest certificate is given), the Tribunal:
(a) must give reasons either orally or in writing for any decision under
subsection 133(2) or (4); and
(b) may give reasons either orally or in writing for any decision under
subsection 133(5).
Copy of decision to be given to each participant
(2) The Tribunal must:
(a) give a copy of any decision under section 133; and
(b) if the Tribunal gives reasons for the decision in writing—give a
copy of those reasons;
to each person who was a participant at the end of the review and, if the
decision-maker was not such a participant, to the decision-maker.
Participant may request written reasons
(3) If the Tribunal gives reasons for its decision orally, a person who is
given a copy of the decision in accordance with paragraph (2)(a) may,
before the end of 28 days after the day on which the copy is given, request the
Tribunal to give the person its reasons for the decision in writing.
(4) The Tribunal must comply with the request before the end of 28 days
after the day on which it receives the request.
Written reasons to contain findings on material questions of fact
etc.
(5) In any case in which the Tribunal gives reasons for its decision in
writing, those reasons must set out the Tribunal’s findings on material
questions of fact and refer to the evidence or other material on which those
findings were based.
Publication of decision and reasons
(6) The Tribunal may publish its decision and any reasons for the
decision. However, if relevant, it must do so in a version that is consistent
with any direction under subsection 100(3) (about confidentiality) and gives
effect to any obligation under paragraph 101(5)(a) (about non-disclosure of
information etc. covered by a public interest certificate).
Copy of decision admissible as prima facie evidence
(1) A document:
(a) purporting to be a copy of a decision of the Tribunal, or a copy of
the reasons for such a decision; and
(b) purporting to be certified by the Chief Executive Officer to be a true
copy of the decision, or of those reasons;
is, in any proceeding, prima facie evidence of the decision or
reasons.
Oral reasons not admissible
(2) If the Tribunal gives reasons for its decision orally and does not
publish those reasons or later give them in writing, evidence of those reasons
is not admissible:
(a) in any court (whether exercising federal jurisdiction or not);
or
(b) in any proceeding before a person authorised by a law of the
Commonwealth or of a State or Territory, or by the consent of the participants,
to hear evidence.
(1) If, after the Tribunal makes a decision under section 133, the
Tribunal is satisfied that there is an obvious error in the text of:
(a) the decision; or
(b) written reasons for the decision;
the Tribunal may alter the text of the decision or the reasons.
Altered text becomes decision
(2) If the text of a decision or reasons is so altered, the altered text
is taken to be the decision of the Tribunal or the reasons for the decision, as
the case may be.
Examples of obvious errors
(3) The following are examples of obvious errors in the text of a decision
or reasons:
(a) an obvious clerical or typographical error;
(b) an inconsistency between the decision and the reasons.
Who may exercise powers under this section
(4) The powers of the Tribunal under this section may be exercised by the
President or by the member who presided at the review that resulted in the
decision.
(1) If all review and appeal action has been finalised in relation to an
original decision, the President may return a document, or any thing, given to
the Tribunal for the purposes of the review, to the decision-maker or other
person who gave it.
(2) If the Federal Court or the Federal Magistrates Court returns to the
Tribunal a document or thing sent to the Court in accordance with subsection
173(3) or (4) in connection with a proceeding before the Court, the President
may return the document or thing to the person who gave it to the
Tribunal.
Except as otherwise provided, this Part applies in relation to:
(a) the review by the Tribunal of decisions that it is required to conduct
by sections 62 and 67, and the doing of things by members, participants,
the Chief Executive Officer, staff, consultants and other persons in that
review; and
(b) the doing of any other thing (the performance of a related
Tribunal function) by the Tribunal, members, the Chief Executive
Officer, staff, consultants and other persons under Parts 4 to 8 or this
Part, or under a provision of another Act.
Note: An example of the performance of a related Tribunal
function is making a decision under subsection 58(2) whether a decision-maker is
required to give a statement of reasons for a decision.
(1) An application to the Tribunal must be in the form and manner
applicable under the practice and procedure directions.
(2) The Chief Executive Officer is to ensure that persons who ask for
assistance in:
(a) making applications to the Tribunal; and
(b) participating in any review or the performance of any related Tribunal
function;
are given reasonable assistance to do so.
Regulations may provide time limits
(1) If the regulations provide that an application to the Tribunal must be
made by a specified time, the application must, subject to this section, be made
by that time.
Tribunal may extend time limits
(2) The Tribunal may, on application, fix a later time as the time by
which a particular application mentioned in subsection (1) must be made,
if:
(a) where paragraph (b) does not apply—the Tribunal is
satisfied that it is reasonable in all the circumstances to do so; or
(b) where the regulations provide that the Tribunal is to be satisfied
about specified matters for the purposes of this subsection—the Tribunal
is satisfied about those matters.
Extension applications after time limit in regulations has
passed
(3) An application under subsection (2) may be made even after the
time specified in the regulations has passed.
Application to be accompanied by fee or waiver application
(1) If the regulations provide that a fee is payable for making an
application (the primary application) to the Tribunal, the
application must be accompanied by:
(a) the fee; or
(b) an application for waiver of the fee.
Waiver of fee
(2) If an application for waiver of the fee is made, the Tribunal must
decide, in accordance with the regulations, whether to waive the fee.
Consequence if fee not waived
(3) If the Tribunal does not waive the fee:
(a) the applicant must pay the fee within 14 days after the Tribunal gives
written notice of its decision to the applicant; and
(b) if the applicant does not do so, the primary application does not
comply, and is taken never to have complied, with the requirements of this
section.
Protection of members
(1) A member has, in performing his or her duties, the same protection and
immunity as a Justice of the High Court.
Protection of Chief Executive Officer, staff and
consultants
(2) If the Chief Executive Officer, staff or a consultant performs any of
the following duties:
(a) presiding over or performing other functions in relation to a
conference or other process under Division 5 of Part 6;
(b) as an inquiry officer, conducting an inquiry and reporting to the
Tribunal under Division 6 of Part 6;
he or she has, in performing those duties, the same protection and immunity
as a Justice of the High Court.
Protection and liabilities of participants etc.
(3) Each of the following persons:
(a) a participant or other person involved in a review;
(b) a person involved in a conference or process under Division 5 of
Part 6 or an inquiry under Division 6 of that Part;
when appearing before, or giving documents or things to, the Tribunal, or
when appearing or giving documents or things at the conference, process or
inquiry:
(c) has the same protection as a witness in a proceeding in the High
Court; and
(d) is, in addition to being subject to the penalties provided by this
Act, subject to the same liabilities as a witness in a proceeding in the High
Court.
Protection of representatives etc.
(4) A person:
(a) appearing before the Tribunal to represent or otherwise assist a
participant or person involved in a review; or
(b) appearing at a conference or process under Division 5 of
Part 6 or an inquiry under Division 6 of that Part to represent or
otherwise assist a person involved in the conference, process or
inquiry;
has the same protection and immunity as a barrister has in appearing for a
party in a proceeding in the High Court.
Failure to give evidence
(1) A person summoned to appear before the Tribunal or an inquiry officer
to give evidence must not refuse or fail to comply with the summons.
Refusal to produce document etc.
(2) A person summoned, or otherwise required, to give the Tribunal or an
inquiry officer a document or other thing must not refuse or fail to comply with
the summons or requirement.
Penalty: 30 penalty units or imprisonment for 6 months.
Refusal to take oath etc.
(1) A person appearing before the Tribunal or an inquiry officer to give
evidence that is required to be given on oath or affirmation must not refuse or
fail to take an oath or to make an affirmation.
Refusal to answer questions
(2) A person appearing before the Tribunal or an inquiry officer to give
evidence must not refuse or fail to answer a question that he or she is required
by the Tribunal or the inquiry officer to answer.
Penalty: 30 penalty units or imprisonment for 6 months.
A person must not give evidence, to the Tribunal or an inquiry officer,
that the person knows to be false or misleading in a material
particular.
Penalty: 60 penalty units or imprisonment for 12 months.
A person must not refuse or fail to comply with a direction by the
Tribunal under subsection 100(3).
Penalty: 30 penalty units or imprisonment for 6 months.
A person must not obstruct or hinder the Tribunal, a member or an inquiry
officer in the exercise of powers or performance of functions under this
Act.
Penalty: 60 penalty units or imprisonment for 12 months.
Chapter 2 of the Criminal Code applies to all offences
against this Division.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Persons to whom section applies
(1) This section applies to a person who is, or has been, a member, the
Chief Executive Officer, staff or a consultant.
Persons not competent etc. to give evidence or required to produce
document
(2) A person to whom this section applies:
(a) is not competent, and must not be required, to give evidence to a
court relating to a matter; and
(b) must not be required to produce in court a document;
if any of subsections (3) to (7) applies.
Where confidentiality grounds for non-compliance with sections 77
to 81
(3) This subsection applies if the giving of the evidence, or the
production of the document, would disclose the contents of a document or part of
a document that the Tribunal decided under subsection 82(4) should not be
required to be given to the Tribunal.
Application for decision under subsection 82(4) pending
(4) This subsection applies if:
(a) an application has been made to the Tribunal for a decision under
subsection 82(4) about whether a document or part of a document should be
required to be given to the Tribunal; and
(b) the Tribunal has not made its decision; and
(c) the giving of the evidence, or the production of the document, would
disclose the contents of the document or part.
Breach of confidentiality direction
(5) This subsection applies if the giving of the evidence, or the
production of the document, would be contrary to a direction of the Tribunal in
force under subsection 100(3) (about confidentiality).
Application for confidentiality direction pending
(6) This subsection applies if:
(a) an application has been made to the Tribunal for a direction under
subsection 100(3) concerning the matter to which the evidence would relate or in
relation to the document; and
(b) the Tribunal has not determined the application.
Breach of public interest certificate
(7) This subsection applies if:
(a) a certificate under section 101 (about public interest
certificates) is in force certifying that the disclosure of information
concerning the matter to which the evidence would relate, or of matter contained
in the document, would be contrary to the public interest for the reason
mentioned in subsection 101(2) or (3), as the case may be; and
(b) if paragraph (2)(a) of this section applies and the certificate
does not specify a reason mentioned in paragraph 101(2)(a) or (b) or (3)(a), as
the case may be—the Tribunal has not made information concerning that
matter available to the participants in a review conducted by the Tribunal and,
if the information is contained in a document, has not permitted those
participants to inspect the document; and
(c) if paragraph (2)(b) of this section applies and the certificate
does not specify a reason mentioned in paragraph 101(2)(a) or (b) or (3)(a), as
the case may be—the Tribunal has not permitted the participants in a
review conducted by the Tribunal to inspect the document.
Persons not required to give evidence
(8) A person to whom this section applies must not be required to give
evidence to a court in relation to any review conducted by the
Tribunal.
Definitions
(9) In this section:
court includes any tribunal, authority or person (other than
the Ombudsman) having power to require the production of documents or the
answering of questions.
produce includes permit access to.
(1) If:
(a) a provision of an enactment (other than this Act) prohibits the
disclosure, whether absolutely, in certain circumstances only or subject to
conditions, of information by persons who:
(i) are included in a particular class of persons; and
(ii) acquired the information in the course of their duties under the
enactment; and
(b) a person who is, or has been, a member, the Chief Executive Officer,
staff or a consultant has acquired or acquires any such information in the
course of his or her duties as such a person;
the provision applies to the person as if he or she were included in the
particular class of persons and acquired the information in the course of
performing his or her duties under the enactment.
(2) To avoid doubt, subsection (1) applies even if the information
has been communicated to the Tribunal in evidence, a statement or a document
given or made in the course of a review.
Prescribed fees and allowances
(1) A person summoned to appear before the Tribunal or an inquiry officer
to give evidence is entitled to be paid, for his or her attendance, any fees,
and allowances for expenses, that may be prescribed by the
regulations.
Who must pay fees and allowances
(2) The fees and allowances must be paid:
(a) if the person was summoned at the request of a participant (other than
the decision-maker) in the review of an original decision or a first-tier
decision—by the participant; or
(b) in any other case—by the Commonwealth.
(3) The Tribunal may direct that the fees and allowances of a person
referred to in paragraph (2)(a) be paid, in whole or in part, by the
Commonwealth.
Witness may recover fees and allowances
(4) If the Tribunal does not give a direction under subsection (3),
the fees and allowances payable by the participant mentioned in
paragraph (2)(a) are recoverable by the person mentioned in that paragraph
as a debt due to the person by the participant.
Applications
(1) A person (other than a member, the Chief Executive Officer, staff or a
consultant) who:
(a) proposes to become, or is or has been, involved in a review (as a
participant or otherwise) or in the performance of a related Tribunal function;
or
(b) proposes to institute a proceeding, or is a party to a proceeding
instituted, before a court in respect of a matter arising under this
Act;
may apply to the Attorney-General for the provision of assistance under
this section.
Authorisation of assistance
(2) If the Attorney-General is satisfied that:
(a) it would involve hardship to that person to refuse the application;
and
(b) in all the circumstances, it is reasonable that the application should
be granted;
the Attorney-General may authorise the provision by the Commonwealth to the
person, either unconditionally or subject to such conditions as the
Attorney-General determines, of such legal or financial assistance in relation
to the matter covered by paragraph (1)(a) or (b) as the Attorney-General
determines.
Each participant in a review or person (other than a member, the Chief
Executive Officer, staff or a consultant) involved in the performance of a
related Tribunal function must bear his or her own costs.
Taxing costs
(1) If:
(a) the Tribunal, under any other Act, requires a person (other than a
member, the Chief Executive Officer, staff or a consultant) who is or was
involved in a review (as a participant or otherwise) or in the performance of a
related Tribunal function (the payer) to pay to another
participant or person involved (the payee) the reasonable costs
incurred by the payee; and
(b) the payer and payee are unable to agree as to the amount of those
costs;
the Tribunal, on application by either the payer or payee:
(c) may tax those costs; or
(d) may give such directions as it thinks appropriate for the costs to be
taxed by the Chief Executive Officer or staff.
Application for review of amount taxed
(2) If the costs are taxed by the Chief Executive Officer or staff, either
the payer or payee may apply to the Tribunal for review of the amount so
taxed.
Review of amount taxed
(3) If such an application is made, the Tribunal must review the amount
taxed and may:
(a) affirm the amount; or
(b) set aside the amount and substitute another amount; or
(c) set aside the amount and remit the costs to the Chief Executive
Officer or staff to be taxed again in accordance with the directions of the
Tribunal.
Amounts recoverable as debts
(4) An amount that the payer is required by the Tribunal to pay to the
payee is recoverable by the payee as a debt due to the payee by the
payer.
If a person is permitted or required by this Act to give the Tribunal or
an inquiry officer a document or thing, the person must do so:
(a) by giving the document or thing to the Chief Executive Officer or
staff at a Registry; or
(b) by a method set out in the practice and procedure
directions.
(1) If a person is permitted or required by this Act to give a document to
any of the following (the recipient):
(a) the Tribunal; or
(b) an inquiry officer; or
(c) the Chief Executive Officer or staff;
the person may instead give a copy of the document.
(2) However, if the recipient so requires, the copy must be certified to
be a true copy of the document. This must be done in accordance with the
practice and procedure directions.
(3) If the person gives a copy of a document in accordance with this
section, this Act applies to the copy in the same way as it would if the
document itself had been given.
When section applies
(1) This section applies if the Tribunal or any person is permitted or
required under this Act to give a document or thing to the decision-maker in
relation to an original decision.
Giving documents etc. to Agency Head
(2) If this section applies, the Tribunal or other person may instead give
the document or thing to the Agency Head for the Agency administered by the
Minister who administers:
(a) the enactment under which the original decision was made; or
(b) if that enactment was made under a power contained in another
enactment—that other enactment.
Giving documents etc. to holder of office
(3) If:
(a) this section applies; and
(b) the regulations or any other enactment prescribes the holder of a
particular office as a person to whom documents or things may be given under
this Act in relation to a class of decisions that includes the original
decision;
the Tribunal or other person may instead give the document or thing to the
holder of that office.
Note: Sections 28A and 29 of the Acts Interpretation
Act 1901 deal with the manner in which the documents may be
given.
(1) If an enactment provides for the Tribunal to give an advisory opinion,
the Tribunal may inform itself in such manner as it thinks appropriate for the
purpose of giving the opinion.
(2) If subordinate legislation provides that applications may be made to
the Tribunal for the review of decisions as mentioned in subsection 54(2), that
legislation may also provide for the Tribunal to give advisory opinions on
matters or questions relating to the making of such decisions.
Note: The provisions of this Division are core provisions.
Other Acts are to be interpreted as far as possible as not changing the
provisions, and subordinate legislation providing for Tribunal review cannot
change them: see section 7.
Matters covered by directions
(1) The President, the responsible Minister for a Division or the
executive member appointed to a Division may issue directions in writing about
any thing required or permitted by another provision of this Act to be dealt
with in the practice and procedure directions.
Note: An example is section 107 (about the
Tribunal’s conduct of the review of decisions).
Scope of directions by President
(2) The directions that the President issues are to relate to the Tribunal
as a whole, to any one or more of its Divisions or to any class of
matters.
Scope of directions by responsible Ministers and executive
members
(3) The directions that a responsible Minister for a Division, or an
executive member appointed to a Division, issues are to relate only to the
Division or to a class of matters within the Division.
Pre-conditions for issue of directions
(4) In preparing directions for issue under this section:
(a) in the case of directions for issue by the President—the
President must consult the executive members; and
(b) in the case of directions for issue by an executive member—the
executive member must consult the President; and
(c) in any case—the person preparing the directions must have regard
to the objects set out in section 3.
Directions not to be inconsistent with this Act
(5) Directions under this section must not be inconsistent with this
Act.
Note: Some provisions of this Act allow the practice and
procedure directions to prevail over provisions of this Act (for example, see
subsection 113(1)).
Resolving inconsistencies in directions by different
persons
(6) Directions issued by a responsible Minister prevail over directions
issued by the President or by an executive member, to the extent of any
inconsistency. Directions issued by the President prevail over directions issued
by an executive member, to the extent of any inconsistency.
Compliance with directions
(7) Members, the Chief Executive Officer, staff, consultants, participants
and other persons must comply with any applicable directions under this
section.
Note: The provisions of this Division are core provisions.
Other Acts are to be interpreted as far as possible as not changing the
provisions, and subordinate legislation providing for Tribunal review cannot
change them: see section 7.
(1) The President must direct that the performance of any related Tribunal
function is to take place in a specified Division.
Enactments requiring review in a specified Division
(2) If:
(a) under paragraph 54(3)(c) (about subordinate legislation) or a
provision of another Act, a decision is required to be reviewed in a specified
Division; and
(b) the performance of the related Tribunal function relates to that
decision;
the direction under subsection (1) of this section must also specify
that Division.
Note: An example of the effect of subsection (2) would
be that the Division in which the Tribunal would decide whether a statement of
reasons for a decision was adequate would be the same as the Division in which
any subsequent review of the decision would take place.
Directions on a particular occasion or standing directions
(3) A direction under subsection (1) may be given in relation to the
performance of a related Tribunal function on a particular occasion, on all
occasions of a particular kind or on all occasions.
Division 2 of Part 5 and Division 3 of Part 6 apply
in the same way to the performance of a related Tribunal function as they do to
the conduct of a review that the Tribunal is required to conduct by
section 62 or 67.
Sections 90 to 92 apply in the same way to the performance of a
related Tribunal function as they do to the conduct of a review that the
Tribunal is required to conduct by section 62 or 67.
(1) The practice and procedure directions may deal with:
(a) the practice and procedure to be followed in performing a related
Tribunal function; or
(b) matters and things incidental to any such practice or
procedure.
(2) Section 108 applies in the same way to the performance of a
related Tribunal function as it does to the conduct of a review that the
Tribunal is required to conduct by section 62 or 67.
(1) This Part applies in relation to the review by the Tribunal of an
original decision or a first-tier decision under power conferred on it by or
under:
(a) an enactment; or
(b) a law of a State, the Australian Capital Territory or the Northern
Territory.
(2) This Part has effect in relation to the review by the Tribunal of an
original decision or a first-tier decision under power conferred on it by a law
of a State, the Australian Capital Territory or the Northern Territory as if a
reference in this Part to a provision of this Act that is not in this Part were
a reference to that provision as applying as a law of the State or the
Territory.
Appeal to Federal Court from first-tier decisions
(1) A person who was a participant at any stage in a first-tier review may
appeal to the Federal Court on a question of law from the first-tier decision on
that review if:
(a) an application by the person under section 63 for leave to apply
for Tribunal review of the first-tier decision has been refused; or
(b) an application by the person under subsection 142(2) for the Tribunal
to extend the period within which an application under section 63 may
be made has been refused; or
(c) the Tribunal has, by the time the appeal is made, been given a written
agreement, by all of the persons who were participants at any stage in the
first-tier review, to the effect that they forgo any right to Tribunal review of
the first-tier decision; or
(d) the first-tier decision was made by the Tribunal constituted by 2 or 3
members and no application under section 66 for review of the first-tier
decision has been made.
Note: An application for review of a first-tier decision
made by the Tribunal constituted by 2 or 3 members can only be made where
subsection 65(3) (which is about manifest error of law or fact)
applies.
Appeal to Federal Court from second-tier decisions
(2) A person who was a participant at any stage in a second-tier review
may appeal to the Federal Court on a question of law from the decision on that
review.
Appeal to Federal Court about whether first-tier review
applicant’s interests are affected by original decision
(3) If:
(a) a person applies under section 61 for the review of an original
decision; and
(b) the Tribunal decides that the person cannot do so because the
person’s interests are not affected by the decision;
the person may appeal to the Federal Court from the decision of the
Tribunal.
Appeal to Federal Court about whether interests of person applying to
become a participant are affected
(4) If:
(a) a person applies under section 84 to be made a participant in the
review of a decision; and
(b) the Tribunal decides that the person is not entitled to be made a
participant because the person’s interests are not affected by the
decision;
the person may appeal to the Federal Court from the decision of the
Tribunal.
Appeal to Federal Court about adequacy of statement of
reasons
(5) If the Tribunal makes a decision under subsection 59(2) (about the
adequacy of a statement of reasons), the decision-maker, or the person,
mentioned in that subsection may appeal to the Federal Court from the decision
of the Tribunal.
Appeal to Federal Court from Tribunal decision about public
interest
(6) If the Tribunal makes a decision under subsection 101(6) or 102(3)
(about the public interest in disclosing information or documents or in
answering questions), a person who is a participant in the review at the time
may appeal to the Federal Court from the decision of the Tribunal.
Appeal to Federal Court on question of law about public
interest
(7) If:
(a) as mentioned in subparagraph 102(1)(b)(i), the Attorney-General of the
Commonwealth informs the Tribunal that, in his or her opinion, answering a
question would be contrary to the public interest, and a reason specified is
that set out in paragraph 101(2)(a) or (b); or
(b) as mentioned in subparagraph 102(1)(b)(ii), the Attorney-General of a
State, the Australian Capital Territory or the Northern Territory informs the
Tribunal that, in his or her opinion, answering a question would be contrary to
the public interest, and a reason specified is that set out in paragraph
101(3)(a);
a person who is a participant in the review at the time may appeal to the
Federal Court for a decision on the question of law whether answering the
question would be contrary to the public interest.
Appeals from first-tier decisions where refusal of leave for second-tier
review
(1) Subject to subsection (6), an appeal by a person on grounds set
out in paragraph 167(1)(a) must be made before the end of 28 days after the day
on which the person is notified of the refusal of leave mentioned in that
paragraph.
Appeals from first-tier decisions where refusal of extension of time to
apply for leave for second-tier review
(2) An appeal by a person under paragraph 167(1)(b) can only be made
within a period that the Federal Court considers reasonable in all the
circumstances.
Other appeals from first-tier decisions
(3) Subject to subsection (6), an appeal by a person on grounds set
out in paragraph 167(1)(c) or (d) can only be made before the end of 28 days
after the day on which the person is given a copy of the first-tier decision
mentioned in that paragraph.
Appeals on question of law about public interest
(4) Subject to subsection (6), an appeal by a person under subsection
167(7) must be made before the end of 28 days after the day on which the person
is notified that the Attorney-General concerned has informed the Tribunal as
mentioned in that subsection.
Other appeals
(5) Subject to subsection (6), any other appeal by a person on
grounds set out in section 167 must be made before the end of 28 days after
the day on which a document setting out the terms of the Tribunal’s
decision mentioned in that section is given to the person.
Extension of time limit
(6) The Federal Court may, on application by the person, extend the period
of 28 days mentioned in subsection (1), (3), (4) or (5) if it is satisfied
that it is reasonable in all the circumstances to do so.
(7) An application under subsection (1), (3), (4) or (5) may be made
even after the end of the period of 28 days.
Manner of making appeal
(8) An appeal by a person under section 167 must be made in such
manner as is prescribed by Rules of Court made under the Federal Court of
Australia Act 1976.
(1) The Federal Court has jurisdiction to hear and determine an appeal
made to it under section 167.
Federal Court to hear and determine appeal
(2) The Federal Court must hear and determine the appeal and may make such
order as it thinks appropriate by reason of its decision.
Examples of orders Federal Court may make
(3) Without limiting subsection (2), the orders that may be made by
the Federal Court on the appeal include the following:
(a) an order affirming or setting aside a decision of the
Tribunal;
(b) an order remitting the matter to be reviewed and decided again, either
with or without the taking of further evidence, by the Tribunal in accordance
with the directions of the Court.
Order remitting a matter to Tribunal
(4) If the Federal Court makes an order remitting a matter to be reviewed
and decided again by the Tribunal, the Tribunal need not be constituted for the
review by the person or persons who made the decision to which the appeal
relates.
Note: If the matter involved a first-tier review, the review
would likewise be a first-tier review. Similarly, if the matter involved a
second-tier review, the review would be a second-tier review.
Transfer of appeals
(1) If an appeal under section 167 is pending in the Federal Court,
the Federal Court may, by order, transfer the appeal to the Federal Magistrates
Court.
Exception
(2) However, the Federal Court must not transfer an appeal to the Federal
Magistrates Court if the appeal is of a kind specified in the
regulations.
Transfer of appeals on application or own initiative
(3) The Federal Court may transfer an appeal under
subsection (1):
(a) on the application of a party to the appeal; or
(b) on its own initiative.
Rules of Court may make provision in relation to transfers of
appeals
(4) Rules of Court made under the Federal Court of Australia Act
1976 may make provision in relation to transfers of appeals to the
Federal Magistrates Court under subsection (1).
(5) In particular, Rules of Court made under the Federal Court of
Australia Act 1976 may set out factors that are to be taken into
account by the Federal Court in deciding whether to transfer appeals to the
Federal Magistrates Court under subsection (1).
(6) Before Rules of Court are made for the purposes of subsection (4)
or (5), the Federal Court must consult the Federal Magistrates Court.
Relevant factors in deciding whether to transfer appeals
(7) In deciding whether to transfer an appeal to the Federal Magistrates
Court under subsection (1), the Federal Court must have regard
to:
(a) any Rules of Court made for the purposes of subsection (5);
and
(b) whether a proceeding in respect of an associated matter is pending in
the Federal Magistrates Court; and
(c) whether the resources of the Federal Magistrates Court are sufficient
to hear and determine the appeal; and
(d) the interests of the administration of justice.
Jurisdiction
(8) The Federal Magistrates Court has jurisdiction to hear and determine
appeals transferred to it under subsection (1).
Provisions of section 169 apply in corresponding way
(9) Subsections 169(3) and (4) apply in relation to the hearing and
determination of an appeal transferred to the Federal Magistrates Court under
subsection (1) of this section in a corresponding way to that in which they
apply to the hearing and determination of an appeal by the Federal
Court.
No appeal from decision to transfer appeal
(10) An appeal cannot be made from a decision of the Federal Court in
relation to the transfer of an appeal under subsection (1).
(1) Subject to this section, the making of an appeal to the Federal Court
from a decision of the Tribunal does not affect the operation of the decision or
prevent the taking of action to implement the decision.
Federal Court or Federal Magistrates Court may make orders affecting the
operation or implementation of decisions
(2) If:
(a) an appeal is made to the Federal Court from a first-tier decision or a
second-tier decision of the Tribunal; or
(b) such an appeal is transferred from the Federal Court to the Federal
Magistrates Court;
then, for the purpose of ensuring the effectiveness of the hearing and
determination of the appeal, an order may be made under subsection (3)
by:
(c) if paragraph (a) applies—the Federal Court or a Judge of
that Court; or
(d) if paragraph (b) applies—the Federal Magistrates Court or a
Federal Magistrate.
(3) For the purposes of subsection (2), the order that may be made is
one that stays or otherwise affects the operation or implementation
of:
(a) if the appeal mentioned in subsection (2) is from a first-tier
decision—either or both of the following:
(i) that decision or a part of that decision;
(ii) the original decision whose review resulted in the first-tier
decision, or a part of that original decision; or
(b) if the appeal mentioned in subsection (2) is from a second-tier
decision—any one or more of the following:
(i) that decision or a part of that decision;
(ii) the first-tier decision whose review resulted in that decision, or a
part of that first-tier decision;
(iii) the original decision whose review resulted in the first-tier
decision, or a part of that original decision.
Variation or revocation of order
(4) If an order (the initial order) is in force under
subsection (3) (including an order that has previously been varied on one
or more occasions under this subsection):
(a) the Federal Court or a Judge of that Court; or
(b) the Federal Magistrates Court or a Federal Magistrate;
as the case requires, may make an order varying or revoking the initial
order.
How long order has effect
(5) An order in force under subsection (3) (including an order that
has previously been varied on one or more occasions under
subsection (4)):
(a) is subject to such conditions as are specified in the order;
and
(b) has effect until:
(i) if a period for the operation of the order is specified in the
order—the end of that period or, if a decision is given on the appeal
before the end of that period, the giving of the decision; or
(ii) if no period is so specified—the giving of a decision on the
appeal.
General referral provision
(1) The Tribunal may, of its own motion or at the request of a
participant, refer to the Federal Court for decision a question of law arising
in a review by the Tribunal.
Referral of question of law about public interest
(2) If:
(a) as mentioned in subparagraph 102(1)(b)(i), the Attorney-General of the
Commonwealth informs the Tribunal that, in his or her opinion, answering a
question would be contrary to the public interest, and a reason specified is
that set out in paragraph 101(2)(a) or (b); or
(b) as mentioned in subparagraph 102(1)(b)(ii), the Attorney-General of a
State, the Australian Capital Territory or the Northern Territory informs the
Tribunal that, in his or her opinion, answering a question would be contrary to
the public interest, and a reason specified is that set out in paragraph
101(3)(a);
the Tribunal may, of its own motion or at the request of a participant at
the time, refer to the Federal Court for decision the question of law whether
answering the question would be contrary to the public interest.
Agreement of President
(3) However, the President must agree to the referral.
Jurisdiction
(4) The Federal Court has jurisdiction to hear and determine a question of
law referred to it under this section.
Tribunal to act accordingly
(5) If a question of law has been referred to the Federal Court under this
section, the Tribunal must not, in that review:
(a) give a decision to which the question is relevant while the reference
is pending; or
(b) proceed in a manner, or make a decision, that is inconsistent with the
opinion of the Federal Court on the question.
(1) This section applies if:
(a) an appeal is made to the Federal Court in accordance with
section 167; or
(b) a question of law is referred to that Court in accordance with
section 172.
Tribunal must send documents etc. to Federal Court
(2) The Tribunal must, despite subsection 101(5), send to the
Court:
(a) all documents and things that were before the Tribunal in connection
with the review to which the appeal or reference relates; and
(b) any other documents and things in the Tribunal’s possession that
the Tribunal is required to send to the Court by Rules of Court made under the
Federal Court of Australia Act 1976.
Return of documents etc. to Tribunal
(3) Except in the case of an appeal that is transferred to the Federal
Magistrates Court, the Federal Court must return the documents and things to the
Tribunal at the conclusion of the proceeding before the Federal Court in
relation to the appeal or reference.
(4) In the case of an appeal that is transferred to the Federal
Magistrates Court:
(a) the Federal Court must send the documents and things to the Federal
Magistrates Court; and
(b) at the conclusion of the proceeding before the Federal Magistrates
Court in relation to the appeal, the Federal Magistrates Court must return the
documents and things to the Tribunal.
Restriction on disclosure of matters in document
(5) If, in respect of any of the documents, a certificate is in force
under subsection 60(1) or 101(1) certifying that the disclosure of a matter
contained in the document would be contrary to the public interest:
(a) the Federal Court; or
(b) the Federal Magistrates Court;
as the case requires, must do all things necessary to ensure that the
matter is not disclosed to any person other than a member of the Court as
constituted for the purposes of the proceeding.
Note: Subsection (7) allows inspection of the document
in certain circumstances.
(6) However, subsection (5) does not prevent the Federal Court from
sending the document to the Federal Magistrates Court as mentioned in
paragraph (4)(a).
(7) If:
(a) a question for decision by the Federal Court or the Federal
Magistrates Court, as the case requires, is whether a matter should be disclosed
to some or all of the participants in the review by the Tribunal in respect of
which the appeal was instituted or the reference was made; and
(b) the Court decides that the matter should be so disclosed;
the Court must permit the part of the document in which the matter is
contained to be inspected accordingly.
Disclosure to officers of the Court
(8) Nothing in this section prevents the disclosure of information, or of
matter contained in a document, to an officer of the Court in the course of the
performance of his or her duties as an officer of the Court.
The Administrative Review Council is established.
The Administrative Review Council consists of the following
members:
(a) the President of the Tribunal;
(b) the Ombudsman;
(c) the President of the Australian Law Reform Commission established by
the Australian Law Reform Commission Act 1996;
(d) not fewer than 3 other members or more than 10 other members or, if a
higher number than 10 is prescribed by the regulations for the purposes of this
paragraph, that higher number of members.
(1) This section sets out the Council’s functions.
Review and monitor developments in administrative law
(2) The Council is to keep the Commonwealth administrative law system
under review, monitor developments in administrative law and recommend to the
Attorney-General improvements that might be made to the system.
Inquire into adequacy of procedures used by persons to make
administrative decisions etc.
(3) The Council is:
(a) to inquire into the adequacy of the procedures used by authorities of
the Commonwealth and other persons who exercise administrative discretions or
make administrative decisions; and
(b) to consult with and advise them about those procedures;
for the purpose of ensuring that the discretions are exercised, or the
decisions are made, in a just and equitable manner. If the Council holds such an
inquiry, or gives any such advice, the Council must give the Attorney-General a
copy of any findings made by the Council in the inquiry or a copy of the advice,
as the case may be.
Ascertain and keep under review decisions that a court etc. does not
review
(4) The Council is to ascertain, and keep under review, the classes of
administrative decisions that are not the subject of review by a court, tribunal
or other body.
Recommend to Attorney-General whether any decisions should be subject to
review by a court etc.
(5) The Council is to make recommendations to the Attorney-General as to
whether any of those classes of decisions should be the subject of review by a
court, tribunal or other body and, if so, as to the appropriate court, tribunal
or other body to make that review.
Inquire into adequacy of law and practice relating to review by courts
of administrative decisions
(6) The Council is to inquire into the adequacy of the law and practice
relating to the review by courts of administrative decisions and to make
recommendations to the Attorney-General as to any improvements that might be
made in that law or practice.
Inquire into qualifications etc. of persons engaged in review of
administrative decisions
(7) The Council is to inquire into:
(a) the qualifications required for membership of authorities of the
Commonwealth, and the qualifications required by other persons, engaged in the
review of administrative decisions; and
(b) the extent of the jurisdiction to review administrative decisions that
is conferred on those authorities and other persons; and
(c) the adequacy of the procedures used by those authorities and other
persons in the exercise of that jurisdiction;
and to consult with and advise those authorities and other persons about
the procedures used by them as mentioned in paragraph (c) and recommend to
the Attorney-General any improvements that might be made in respect of any of
the matters referred to in paragraphs (a), (b) and (c).
Recommend to Attorney-General the constitution of Tribunals reviewing
administrative decisions
(8) The Council is to make recommendations to the Attorney-General as to
the manner in which tribunals engaged in the review of administrative decisions
should be constituted.
Recommend to Attorney-General the desirability of decisions to be
reviewed by the Administrative Review Tribunal
(9) The Council is to make recommendations to the Attorney-General as to
the desirability of administrative decisions that are the subject of review by
tribunals other than the Administrative Review Tribunal being made the subject
of review by the Administrative Review Tribunal.
Facilitate training of persons making administrative
decisions
(10) The Council is to facilitate the training of members of authorities
of the Commonwealth and other persons in exercising administrative discretions
or making administrative decisions.
Promote knowledge about Commonwealth administrative law
system
(11) The Council is to promote knowledge about the Commonwealth
administrative law system.
Consider matters referred by the Attorney-General
(12) The Council is to consider, and report to the Attorney-General on,
matters referred to the Council by the Attorney-General.
Interpretation
(13) A reference in this Part to an administrative decision or an
administrative discretion includes a reference to an administrative decision
made, or an administrative discretion exercised, otherwise than under an
enactment.
The performance of the functions of the Council is not affected by reason
only of:
(a) there being a vacancy in the office of an ex officio Council member;
or
(b) the number of appointed Council members falling below 3 for not more
than 3 months.
Holding of meetings
(1) The Council is to hold such meetings as are necessary for the
performance of its functions.
President may convene meeting at any time
(2) The President of the Council may at any time convene a meeting of the
Council.
Note: Section 183 provides for appointment of a
President of the Council.
President must convene meeting upon request by 3 Council
members
(3) The President of the Council must, on receipt of a request in writing
signed by 3 Council members, convene a meeting of the Council.
Quorum
(4) At a meeting of the Council, 4 Council members constitute a
quorum.
President to preside when present
(5) The President of the Council must preside at all meetings of the
Council at which he or she is present.
Another Council member to preside if President not present
(6) If the President of the Council is not present at a meeting of the
Council, the Council members present must elect one of their number to preside
at that meeting and the person so elected must preside accordingly.
Voting
(7) Questions arising at a meeting of the Council are to be determined by
a majority of the votes of the Council members present and voting.
Presiding Council member has casting vote
(8) The Council member presiding at a meeting of the Council has a
deliberative vote and, in the event of an equality of votes, also has a casting
vote.
Conduct of proceedings etc.
(9) The Council may regulate the conduct of proceedings at its meetings as
it thinks fit and must keep minutes of those proceedings.
The Attorney-General may, by writing given to the President of the
Council, give directions to the Council in respect of the performance of its
functions, and the Council must comply with any such directions.
The Attorney-General may, by writing given to the President of the
Council, refer matters to the Council for inquiry and report.
(1) When the Council concludes its consideration of:
(a) a matter relating to a project in respect of which the Council has
determined that a report is to be prepared; or
(b) a matter referred by the Attorney-General to the Council for inquiry
and report;
the Council is to prepare a report on the matter and give the report to the
Attorney-General.
Tabling of report
(2) The Attorney-General must cause a copy of the report to be tabled in
each House of the Parliament as soon as practicable.
The Council members mentioned in paragraph 175(d) are to be appointed by
the Governor-General by written instrument.
One Council member is to be appointed by the Governor-General as
President of the Council.
A person is not to be appointed as a Council member mentioned in
paragraph 175(d) unless he or she:
(a) has had extensive experience at a high level in industry, commerce,
public administration, industrial relations, the practice of a profession or the
service of a government or of an authority of a government; or
(b) has an extensive knowledge of administrative law or public
administration; or
(c) has had direct experience, and has direct knowledge, of the needs of
people, or groups of people, significantly affected by government
decisions.
Appointed Council members are to be appointed as part-time
members.
Subject to this Division, an appointed Council member holds office for
the period specified in his or her instrument of appointment. The period must
not exceed 3 years.
(1) An instrument appointing a Council member mentioned in paragraph
175(d) may state that the member is appointed primarily for the purpose of
taking part in a project specified in the instrument that is being, or is to be,
undertaken by the Council.
Rights etc. of such a member
(2) If an instrument appointing a Council member mentioned in paragraph
175(d) contains such a statement:
(a) the person is to take part in the project but has all the rights of,
and is to be treated for the purposes of this Act in all other respects as if he
or she were, an appointed Council member who was not appointed primarily for the
purpose of taking part in a specified project; and
(b) if the appointment has not ceased under section 186 and has not
been terminated under subsection 190(1)—the appointment ceases when the
President of the Council certifies in writing that the Council has finished the
project.
(1) An appointed Council member is to be paid the remuneration that is
determined by the Remuneration Tribunal. If no determination of that
remuneration by the Remuneration Tribunal is in operation, the member is to be
paid the remuneration that is prescribed by the regulations.
(2) An appointed Council member is to be paid the allowances that are
prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act
1973.
The Attorney-General may grant leave of absence to any appointed Council
member on the terms and conditions that the Attorney-General
determines.
Removal of Council members appointed to take part in a specified
project
(1) The Governor-General may at any time remove from office an appointed
Council member whose instrument of appointment contained a statement of the kind
mentioned in subsection 187(1) (about the member being appointed to take part in
a specified project).
Removal of other Council members
(2) The Governor-General must remove from office any other appointed
Council member if the member:
(a) misbehaves or becomes physically or mentally incapacitated;
or
(b) is absent, except on leave of absence, from 3 consecutive meetings of
the Council.
An appointed Council member may resign his or her appointment by giving
the Governor-General a written resignation.
The staff of the Council are to be persons engaged under the Public
Service Act 1999.
(1) After the end of each financial year, the President of the Council
must give a report to the Attorney-General, for presentation to the Parliament,
on the Council’s activities during the year.
(2) The report must be prepared in accordance with guidelines approved on
behalf of the Parliament by the Joint Committee of Public Accounts and
Audit.
(1) The Governor-General may make regulations prescribing
matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.
Prescribing fees
(2) Without limiting subsection (1), the regulations may make
provision:
(a) prescribing fees to be paid in relation to applications under this
Act; and
(b) for the waiver or refund, in whole or in part, of those fees;
and
(c) prescribing fees to be paid in relation to the taxation of costs
ordered by the Tribunal to be paid.