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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ADMINISTRATIVE REVIEW TRIBUNAL BILL
2000
REVISED EXPLANATORY MEMORANDUM
This explanatory memorandum takes account of amendments
made
by the House of Representatives to the Bill as introduced
(Circulated by the authority of the Attorney-General,
the
Honourable Daryl Williams AM QC MP)
ISBN: 0642 465622
1. TABLE OF CONTENTS
2. ADMINISTRATIVE REVIEW TRIBUNAL BILL 2000
The Administrative Review Tribunal Bill will establish the Administrative Review Tribunal. Its function will be to review administrative decisions on the merits. The Tribunal will be readily accessible and provide review that is fair, just, economical, informal and quick.
Other laws of the Commonwealth will provide for applications to be made to the Tribunal for review.
The Tribunal will replace the Administrative Appeals Tribunal, the Social Security Appeals Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal.
The Administrative Review Council, in its 1995 Report Better Decisions: Review of Commonwealth Merits Review Tribunals, recommended that a single merits review tribunal be established through the amalgamation of the Administrative Appeals Tribunal and several specialist review tribunals. The Government announced in 1997 that it agreed with this recommendation. Accordingly, this Bill will set up the new Administrative Review Tribunal to replace the Administrative Appeals Tribunal and the three specialist tribunals referred to in the preceding paragraph.
The Administrative Appeals Tribunal was established as a general merits review Tribunal by the Administrative Appeals Tribunal Act 1975 and commenced operation on 1 July 1976. Such a tribunal was recommended in a 1971 report by the Commonwealth Administrative Review Committee (often called the Kerr Committee—Parliamentary Paper No. 144 of 1971) and by the 1973 report of the Committee on Administrative Discretions (often called the Bland Committee—Parliamentary Paper No. 316 of 1973). Both committees recommended the establishment of a general review tribunal and the avoidance of specialist tribunals. Despite these early views, and the ever-expanding range of jurisdiction conferred on the Administrative Appeals Tribunal, the number of specialist merits review tribunals has continued to increase.
Amalgamation of the tribunals will provide the opportunity to:
• maximise information-sharing and foster the development of existing best practice across all jurisdictions;
• enable more streamlined review structures and processes to be adopted; and
• rationalise resources and create efficiencies.
The Tribunal will be constituted in Divisions to conduct reviews. The Divisions are based on the jurisdictions of the existing specialist tribunals. The creation of a number of Divisions is intended to ensure that the Tribunal, even though a single body, will enjoy the beneficial aspects of the specialist review tribunals, such as their ability to develop flexible, cost-effective and non-legalistic procedures and practices that are appropriate for, and tailored to, the types of decisions that they review.
The new Administrative Review Tribunal will consist of a President, executive members, senior members and other members.
The President will be responsible for managing the administrative affairs of the Tribunal, assisted by the executive members and other members. There is also to be a Chief Executive Officer who is to assist the President.
Each Division will be headed by an executive member who will be responsible for day-to-day management of the Division.
Senior members will be highly skilled and experienced members, suitably qualified to review difficult, complex and/or particularly significant decisions. They will provide intellectual leadership and guidance to other members.
Other enactments will make provision for applications for review to be made to the Tribunal. As far as possible, those other enactments are not intended to modify the core provisions of the Bill, which are specified in subclause 7(3).
When an application for review of a decision is made to the Tribunal, it will conduct a ‘first-tier review’ of the decision. In some circumstances, the Tribunal may also conduct a ‘second-tier review’ of the first-tier decision.
The Bill deals with various other matters relating to the review of decisions by the Tribunal such as the form of applications, fees for applications, protection given to persons appearing before the Tribunal, and confidentiality of information given to the Tribunal.
The Bill also establishes the Administrative Review Council, which was originally established by the Administrative Appeals Tribunal Act 1975. The main functions of the Council will continue to be reviewing and monitoring developments in the Commonwealth administrative law system and making recommendations for improvements to the system.
The Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 will amend legislation that currently confers jurisdiction on the tribunals mentioned above so that it confers jurisdiction on the new Tribunal and, where appropriate, makes specific provision for procedures to be followed by the Tribunal in its review of certain decisions. That Bill will also make provision for the transfer to the Tribunal of matters that, just before the Tribunal commences operations, are being reviewed by the existing tribunals.
The up-front costs of establishing the Tribunal are estimated to be $17.3m. However, these will be fully offset by savings within, at most, 4 years, as the operational costs of the Tribunal will be less than the combined operational costs of the four existing tribunals that the Tribunal will replace. Savings will arise from, among other things, economies of scale due to the elimination of the duplication of infrastructure and support services.
The Tribunal will eventually be funded entirely through the running costs of departments, which will purchase review services from the Tribunal. During its first months of operation, this funding arrangement will be in place for the Department of Family and Community Services in relation to costs of review in the Income Support Division and the Department of Immigration and Multicultural Affairs in relation to costs of review in the Immigration and Refugee Division. The remaining costs of the Tribunal will be met through the appropriation for the Attorney-General’s Department. When the necessary data has been collected on the cost of review etc. in the various Divisions, the Tribunal will be funded entirely through the running costs of those departments having portfolio responsibility for the Divisions of the Tribunal.
1. Part 1 makes provision for the short title of the Bill and commencement of its provisions. It sets out the objects of the Bill and contains diagrams illustrating the main steps typically involved in the review process, and in appealing from decisions of the Tribunal. It contains defined words, and explains what the ‘core provisions’ of the Bill are and how other laws should be construed as applying in relation to the core provisions. It contains provisions dealing with the Bill’s application to external Territories and to unincorporated bodies.
1. This clause is a formal provision specifying the short title of the Bill.
1. This clause specifies when the Bill will commence. It provides that Parts 1 to 3 and Parts 11 and 12 will commence on the day it receives the Royal Assent and Parts 4 to 10 will commence on a day to be fixed by Proclamation. If Parts 4 to 10 have not been proclaimed to commence within 6 months from the day the Bill receives the Royal Assent, they will commence on the first day after that 6-month period.
1. This clause sets out the main objects of the Bill, which are as follows:
• to establish the Tribunal to review administrative decisions where other Acts or subordinate legislation provide for applications for review to be made;
• to provide for the Tribunal to review decisions on the merits independently of the original decision-makers;
• to ensure that the Tribunal provides an accessible mechanism for reviewing decisions that is fair, just, economical, informal and quick;
• to enable the Tribunal to review decisions in a non-adversarial way;
• 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
• to improve the quality and consistency of decision-making.
1. This clause provides an overview of the Bill. It states that:
• there is to be an Administrative Review Tribunal, comprising a President, executive members, senior members and other members, and divided into a number of Divisions;
• all members are appointed by the Governor-General and their terms and conditions are set out in Division 3 of Part 2;
• the President is responsible for managing the administrative affairs of the Tribunal and the other members must assist the President;
• there will be a Chief Executive Officer, who must also assist the President;
• staff and consultants may be engaged;
• the Tribunal has the function of reviewing administrative decisions that affect persons’ interests, where other laws allow applications for review to be made;
• the Tribunal is to conduct a ‘first-tier review’ of a decision with the possibility that, if certain conditions are met, that decision can itself be reviewed by the Tribunal in a ‘second-tier’ review;
• other laws enabling applications to be made to the Tribunal for review can modify the operation of the Bill in relation to first- and second-tier review, but it is not intended that other laws modify certain provisions of the Bill (these are called the core provisions of the Bill and are set out in subclause 7(3));
• the Bill 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; and
• the Bill provides for there to be an Administrative Review Council with specific functions.
1. This clause contains diagrams which show the main steps typically involved in:
• first-tier review of a decision;
• second-tier review of a first-tier decision; and
• an appeal on a question of law to the Federal Court from a first- or second-tier decision.
1. This clause defines key terms used in the Bill.
1. It is intended that as far as possible other Acts (whenever they are enacted) be interpreted as not affecting the operation of the core provisions set out in subclause 7(3). Notes in the Bill indicate the core provisions.
2. However, a provision of another Act may be intended to affect the operation of a core provision and, where it is not possible to interpret that provision in any other way, the core provision will be affected.
3. Where subordinate legislation makes provision for applications to be made to the Tribunal for review of decisions, that legislation may also provide for the amendment of the operation of:
• any provision of the Bill (apart from the core provisions) in relation to the review of the decisions; and
• Subdivision B of Division 1 of Part 4 in relation to such decisions (that Subdivision provides for notice to be given of decisions).
4. The clause also provides that any such provision is effective. Although clause 7 does not authorise subordinate legislation to change the operation of core provisions, a provision of another Act could, of course, empower the making of regulations under that Act that affect the operation of core provisions.
1. The Bill extends to every external Territory.
1. If a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an enactment to make decisions, then the Bill will apply as if the board, committee or other body were a person empowered to make those decisions.
1. Part 2 of the Bill establishes the Tribunal and provides for its structure and membership.
2. The provisions of Part 2 are core provisions. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. Division 1 of Part 2 establishes the Tribunal and describes its divisional organisation.
1. This clause establishes the Administrative Review Tribunal.
1. The Tribunal has a number of Divisions. They are:
• the Commercial and General Division;
• the Immigration and Refugee Division;
• the Income Support Division;
• the Taxation Division;
• the Veterans’ Appeals Division; and
• the Workers’ Compensation Division.
Other Divisions may be created by regulations.
2. The creation of a number of Divisions is intended to ensure that the Tribunal will enjoy the beneficial aspects of the existing specialist review tribunals, such as their ability to develop decision-making procedures and practices that are appropriate for, and tailored to, the types of decisions that they review.
1. Division 2 of Part 2 deals with the appointment of members to the Tribunal.
1. There is to be a President of the Tribunal who 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 who are to be appointed by the Governor-General by written instrument.
2. A senior member must not be appointed if the appointment would bring:
• the total number of senior members to more than 10% of the total number of members of the Tribunal; or
• (in a particular Division) the total number of senior members whose primary Division is that Division to more than 15% of the total number of such members—for this purpose, the total number does not include the executive member for each Division because executive members do not have a ‘primary division’: see subclause 14(2).
1. All members of the Tribunal (except the President) are to be appointed to Divisions.
2. One executive member is to be appointed to each Division to assist the President in managing the administrative affairs of that Division: see clause 33. An executive member cannot be appointed to more than one Division and cannot be assigned to another Division.
3. Each member (other than the President or an executive member) is to be appointed to at least one Division. If a member is appointed to only one Division, that Division is the member’s primary Division. If a member is appointed to more than one Division, the instrument of appointment must state which Division is the member’s primary Division.
1. Members are appointed by the Governor-General by written instrument: see clause 13. Before the Governor-General appoints a person as a member, the responsible Minister for the member’s primary Division must be satisfied that, having regard to a person’s qualifications and experience, the person should be appointed as a member to a particular Division. The term ‘primary Division’ has the meaning given by subclause 14(2): see clause 6.
2. The responsible Minister for a Division is the Minister whose portfolio responsibilities include the making of decisions reviewed in that Division or, in the case of the Commercial and General Division, the Attorney-General. The responsible Minister is best placed to understand the skills required by, and the expertise available to, his or her own Division. It is intended that the Administrative Arrangements Order will identify each responsible Minister by reference to the relevant subclause of clause 15.
3. Only the responsible Minister for a member’s primary Division needs to be satisfied that he or she should be appointed. However, it is expected that, in practice, a member would not be appointed to a Division that is not the member’s primary Division without the consent of the responsible Minister for that other Division.
4. Each responsible Minister has a number of roles in relation to the provisions of the Bill, including:
• having to be satisfied that a person should be appointed before the Governor-General appoints the person as a member to the Division for which the Minister is the responsible Minister;
• the assignment of members to the Division or other Divisions (see clause 14);
• the appointment of an acting executive member for the Division (see clause 31); and
• the making of practice and procedure directions for the Division (see Division 10 of Part 9).
In addition, the Attorney-General is responsible for the operation of the Bill as a whole.
1. After a member (other than an executive member) is appointed to a Division or Divisions, the President may assign the member to an additional Division or Divisions for a specified period (which must, of course, end on or before the end of the member’s term of appointment to the Tribunal). The President may do so only with the consent of all of the following:
• the member;
• the responsible Minister for the member’s primary Division; and
• the responsible Minister for the additional Division, or the responsible Ministers for the additional Divisions, to which the member is to be assigned.
2. The President’s power to assign members to additional Divisions, with consent, will enable flexible use of resources to manage workflow variations in particular Divisions. It will also contribute to the cross-fertilisation of ideas between Divisions.
3. The President cannot delegate his or her powers or functions under clause 16: see subclause 50(2).
1. Division 3 of Part 2 sets out some terms and conditions on which members hold office and makes provision for how terms and conditions not specifically set out in the Bill are to be determined.
1. The President and the executive members are to be appointed on a full-time basis. Other members may be appointed on either a full-time or a part-time basis.
2. This recognises that the roles of the President and the executive members of the Tribunal can only be performed by full-time appointees. There is flexibility to appoint other members on a full-time or a part-time basis, depending upon the needs of the Tribunal and of particular Divisions.
1. Subject to this Division, a member holds office for the period specified in his or her instrument of appointment. The period cannot exceed 7 years. Members may be reappointed for a further term or terms: see section 33(4A) of the Acts Interpretation Act 1901.
1. A member is to be paid the remuneration that is determined by the Remuneration Tribunal or, if there is no determination in force, as prescribed by the regulations. A member is also to be paid the allowances that are prescribed by the regulations. The clause is expressed to be subject to the Remuneration Tribunal Act 1973.
1. A full-time member is entitled to recreation leave in accordance with a determination of the Remuneration Tribunal.
2. The Attorney-General may grant the President leave of absence, other than recreation leave, on terms and conditions determined by the Attorney-General.
3. The President may grant other full-time members leave of absence, other than recreation leave, on terms and conditions determined by the President.
4. The President may also grant leave of absence to any part-time member on terms and conditions that the President determines.
5. The President cannot delegate, to anyone other than an executive member, his or her power to grant leave of absence under subclauses 20(3) and (4): see subclause 50(3).
1. Full-time members are prohibited from engaging in other paid employment unless they have permission to do so. In the case of the President, the Attorney-General may give consent. In the case of other full-time members, the President’s consent is required.
2. Part-time members may engage in paid employment outside the duties of their office but they must advise the President of this in writing. However, a part-time member cannot engage in any paid employment that, in the President’s opinion, conflicts or may conflict with the proper performance of his or her duties as a member. The prohibition against paid employment would extend to work done under a contract for services.
3. The President cannot delegate his or her power to consent to a full-time member engaging in other paid employment under paragraph 21(1)(b): see subclause 50(2).
1. This clause deals with the disclosure of financial and other interests by the President.
2. It imposes a duty on the Attorney-General, within a reasonable time after the appointment of a President, to require the President to make a written disclosure of the financial interests of the President and his or her immediate family. The President is given 1 month within which to provide the information. The President must also make such further disclosures as are necessary to ensure the information remains up-to-date.
3. The clause also deals with the possibility that the President has an interest that could conflict with the review by the President (alone or as part of a multi-member panel) of a decision. In that event, the President must disclose the interest to the participants and the President may only continue the review with their unanimous consent. Subclause (4) operates where any interest could potentially conflict with the proper review of the decision.
4. Subclause (5) deals with the possibility that the President has an interest that could conflict with his or her decision whether to grant leave to make an application for second-tier review: see clause 65. In that event, the President must not make the decision, but must delegate the function in accordance with the Bill. The President cannot delegate, to anyone other than an executive member, his or her power to grant leave under paragraph 65(1)(c)—where the first-tier review Tribunal consisted of or included an executive member—see subclause 50(3). Of course, that delegation would be to an executive member who was not involved in the first-tier review. However, there is no restriction on the President’s ability to delegate his or her power to grant leave under paragraph 65(1)(d)—where the first-tier review Tribunal did not consist of or include an executive member.
1. This clause imposes similar obligations on members to those imposed on the President by clause 22.
2. The President must require every member, within a reasonable period after the member is appointed, to make a written disclosure of the financial interests of the member and his or her immediate family. Members are given 1 month within which to provide the information. Members must also make such further disclosures as are necessary to keep the information up-to-date. Executive members must make the requisite disclosures to the President. Other members must make the disclosures to the executive member of their primary Division.
3. If a member is about to review or is in the process of reviewing a decision, and has any interest that could conflict with the proper review of the decision, the member must disclose the interest to the participants in the review. The member must not review or continue to review the decision unless all the participants consent and the President does not direct the member not to continue.
4. Subclause 23(5) empowers the President to direct a member not to conduct a review if the President becomes aware that the member has an interest that may conflict with the proper review of a decision and the President considers the member should not conduct the review. If the President decides not to give a direction, the President must ensure that the member’s interest is disclosed to the participants in the review. Normally members will have already disclosed such an interest in accordance with their obligations under subclause 23(4).
5. Subclause 23(6) provides that, if a member has an interest that could conflict with his or her decision whether to grant leave to make an application for second-tier review, the member must not make the decision. (An analogous restriction applies to the President: see subclause 22(5).) In such a case, the delegation powers under the Bill would be used to enable another member to make the decision. If, but for this subclause, the member would have exercised the function under a delegation, the delegator (the President or an executive member: see clause 65) would delegate the function to another member.
1. Every member of the Tribunal other than the President must enter into a performance agreement dealing with the performance of his or her duties. If a member does not enter into an agreement, he or she may be subject to removal from office under clause 28.
2. A performance agreement cannot cover the substance of particular decisions made by the member.
3. Members must comply with their performance agreements. If a member does not comply with his or her performance agreement:
• the President may direct the member under clause 26 about what to do to improve performance; or
• the Governor-General may remove the member from office under clause 28.
4. Executive members must enter into performance agreements with the President and other members must enter into performance agreements with either the executive member for their primary Division or, if the executive member permits, a senior member appointed or assigned to that Division.
5. The performance agreement must deal with the matters set out in subclause 24(2). These include participation in a performance appraisal scheme, accountability for productivity and performance, providing assistance in managing the administrative affairs of the Tribunal, and recognition of the obligation to comply with the code of conduct.
6. The intention behind imposing on members an obligation to enter into a performance agreement is to allow members’ productivity and performance to be monitored and to allow appropriate action to be taken if members’ performance is unacceptable. However, as noted above, a performance agreement must not deal with the substance of particular decisions made by a member, or in which a member participates.
7. The President cannot delegate his or her powers or functions under paragraph 24(1)(a) in relation to the entry by executive members into performance agreements: see subclause 50(2).
1. This clause deals with the code of conduct mentioned in paragraph 24(2)(d). The code applies to members in the performance of their duties.
2. Every member (including the President) must comply with the code. If a member does not comply with the code:
• the President may direct the member under clause 26 about what to do in order to comply with the code; or
• the Governor-General may remove the member from office under clause 28.
A member may be removed under clause 28 without a direction having been given under clause 26.
3. The President must establish a committee to determine the code of conduct. The committee comprises the President, 2 executive members and a suitably qualified person who is independent of the Tribunal: that is, he or she is not a member, the Chief Executive Officer, staff or (except through being a member of the committee) a consultant.
4. The committee must consult, to the extent that it considers appropriate, persons outside the Tribunal and members.
5. The code of conduct can later be varied in the same way as it was made: see subsection 33(3) of the Acts Interpretation Act 1901.
6. Issues that might be dealt with in the code of conduct include:
• ensuring the independence of members in relation to the outcome of individual cases;
• the standards of performance expected of members, including the meeting of any productivity targets;
• the standards of behaviour expected of members towards clients and Tribunal staff;
• the ethical standards that members are expected to meet;
• the general conduct of members, including their compliance with lawful directions of the President and the executive members;
• members’ participation in professional development activities; and
• such other matters as the Committee considers are appropriate to be dealt with in the code.
7. The code of conduct is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. This means that it must be tabled in each House of Parliament and may be disallowed.
8. The President cannot delegate his or her powers or functions relating to the establishment of a committee to determine the code of conduct under subclause 25(1): see subclause 50(2).
1. The President may direct a member who has not complied with a performance agreement or code of conduct to do particular things to ensure compliance.
2. Directions to members have to be given in accordance with guidelines determined by the President after consulting the executive members. The guidelines must provide for members to be afforded procedural fairness.
3. If a member does not comply with a direction, this may be grounds for removing the member from office under clause 28. The President has the discretion not to make a direction under clause 26 before a member is removed under clause 28, however it is expected that, in all but the most serious cases, a direction to improve performance would be issued and the member given an opportunity to comply before the removal provision was invoked.
4. The President cannot delegate his or her power to direct members to improve performance under subclause 26(1) to anyone other than an executive member: see subclause 50(3).
5. The President cannot delegate his or her power to determine guidelines under subclause 26(3): see subclause 50(2).
1. This clause sets out the grounds for removing the President from office.
2. The Governor-General must remove the President from office if each House of the Parliament, in the same session, resolves that the President should be removed for misbehaviour or physical or mental incapacity. This is similar to the test for the removal of federal judges under section 72 of the Commonwealth Constitution. It will help ensure the independence of the President.
3. Subclause 27(2) requires the Governor-General to remove the President from office if the President becomes bankrupt or does certain other things indicating an unacceptable level of indebtedness.
1. This clause sets out the grounds for removing members other than the President from office.
2. Subclause 28(1) requires the Governor-General to remove a member if the member becomes bankrupt or does certain other things indicating an unacceptable level of indebtedness.
3. A member can also be removed on several other grounds set out in subclause 28(3). In addition to the specific grounds in paragraphs 28(3)(b)–(g) and physical or mental incapacity (referred to in paragraph 28(3)(a)), there is a ground of misbehaviour in paragraph 28(3)(a) that is not limited by those other grounds. The restricted grounds of removal will help ensure the independence of members.
4. The Governor-General must remove a member from office if one of these grounds exists and the President is satisfied that because of this the member should be removed. In the case of an executive member, the responsible Minister for the relevant Division must also be satisfied that the executive member should be removed.
5. The grounds for removal set out in paragraphs 28(3)(d), (e) and (f) refer to ‘serious or continuing’ breaches of various obligations or requirements. A continuous breach could be of the same obligation or requirement, or it could be of several different obligations or requirements.
6. The President cannot delegate his or her powers or functions under paragraph 28(2)(b), relating to the removal of members: see subclause 50(2).
1. A member may resign in writing given to the Governor-General.
1. In relation to matters that are not covered by the Bill, the President (or, in the case of the President, the Attorney-General) may determine members’ terms and conditions.
1. Acting appointments may be made to the offices of President, executive member or senior member in certain circumstances. They must be made, respectively, by the Attorney-General, the responsible Minister or the President.
2. Subclause 31(4) ensures that things done by, or in relation to, acting members are effective even if there has been some deficiency in relation to their appointment or action taken by them.
3. An acting appointee to a vacant office must not continue to act in the office for more than 12 months, and the appointment can be terminated at any time: see section 33A of the Acts Interpretation Act 1901.
4. The President cannot delegate his or her powers or functions to appoint acting senior members under subclause 31(3) to anyone other than an executive member: see subclause 50(3).
1. Part 3 deals with administration of the Tribunal.
2. The provisions of Part 3 are core provisions. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. Division 1 of Part 3 gives responsibility for managing the administrative affairs of the Tribunal to the President, assisted by the members in such manner as the President requires. The Chief Executive Officer, who is dealt with in Division 2, must also assist the President.
1. Responsibility for managing the administrative affairs of the Tribunal is given to the President. The President’s powers to manage the Tribunal’s administrative affairs include the power to do all things that are necessary or convenient to be done, including, on behalf of the Commonwealth, the power to enter into contracts and to acquire or dispose of personal property. (These powers are restricted by clause 52.)
1. The executive member for a Division is to assist the President in managing the administrative affairs of the Division, as required by the President.
2. Each executive member will be responsible for the day-to-day management of his or her Division.
1. Other members are also to assist the President in managing the administrative affairs of the Tribunal, as required by the President.
2. Other members also have to assist the executive member of the relevant Division to manage the administrative affairs of the Division, as required by the executive member.
1. Division 2 of Part 3 confers functions on the Chief Executive Officer of the Tribunal. An acting Chief Executive Officer may be appointed.
1. The Chief Executive Officer is to be appointed in writing by the Governor-General.
1. The function of the Chief Executive Officer is to assist the President to manage the administrative affairs of the Tribunal, as required by the President.
1. Subject to this Division, the Chief Executive Officer holds office for the period specified in his or her instrument of appointment. The period cannot exceed 5 years. The Chief Executive Officer may be reappointed for a further term or terms: see section 33(4A) of the Acts Interpretation Act 1901.
1. The Chief Executive Officer is to be paid the remuneration that is determined by the Remuneration Tribunal or, if there is no determination in force, as prescribed by the regulations. The Chief Executive Officer is also to be paid allowances that are prescribed by the regulations. The clause is expressed to be subject to the Remuneration Tribunal Act 1973.
1. The Chief Executive Officer has the recreation leave entitlements that are determined by the Remuneration Tribunal. The President may also grant the Chief Executive Officer leave of absence, other than recreation leave, on terms and conditions determined by the President.
2. The President cannot delegate his or her powers or functions under subclause 39(2): see subclause 50(2).
1. The Chief Executive Officer must not engage in other paid employment unless the President agrees.
2. The President cannot delegate his or her powers or functions under clause 40: see subclause 50(2).
1. The Chief Executive Officer, like members, must make a written disclosure of certain financial interests and make further disclosures from time to time to keep that information up to date. Disclosures are made to the President.
2. The President cannot delegate his or her powers or functions under clause 41: see subclause 50(2).
1. This clause sets out the grounds for removing the Chief Executive Officer from office.
2. Subclause 42(1) requires the Governor-General to remove the Chief Executive Officer if the Chief Executive Officer becomes a bankrupt or does certain other things indicating an unacceptable level of indebtedness.
3. Various other grounds for removal are set out in subclause 42(2). As in the case of the removal of members (see clause 28), there is a ground of misbehaviour, in addition to specified conduct, that is not limited by that specified conduct.
4. The grounds for removal set out in paragraph 42(2)(d) refer to ‘serious or continuing’ breaches of various obligations or requirements. A continuous breach could be of the same obligation or requirement, or it could be of several different obligations or requirements.
5. The President cannot delegate his or her powers or functions under subclause 42(2): see subclause 50(2).
1. The Chief Executive Officer may resign in writing given to the Governor-General.
1. In relation to matters that are not covered by the Bill, the President may determine the Chief Executive Officer’s terms and conditions.
1. The President may appoint a person to act as the Chief Executive Officer in certain circumstances.
2. Subclause 45(2) ensures that things done by, or in relation to, an acting Chief Executive Officer are effective even if there has been some deficiency in relation to his or her appointment or action taken by him or her.
3. An acting Chief Executive Officer must not continue to act in that office for more than 12 months, and the President can terminate the appointment at any time: see section 33A of the Acts Interpretation Act 1901.
4. The President cannot delegate his or her powers or functions under subclause 45(1): see subclause 50(2).
1. Division 3 of Part 3 deals with the staff and consultants of the Tribunal and the powers of the Chief Executive Officer with respect to such persons.
1. Staff necessary to assist the Chief Executive Officer are to be persons engaged under the Public Service Act 1999.
2. The Chief Executive Officer can arrange for the services of officers or employees of an Agency, within the meaning of the Public Service Act, to be made available to the Tribunal. Such persons are taken to be staff of the Tribunal for the purposes of the Bill.
3. Under section 25 of the Public Service Act, the Chief Executive Officer, as Agency Head (see clause 47), has power to determine the duties of APS employees and the place or places at which the duties are to be performed.
1. The Chief Executive Officer and the APS employees assisting him or her constitute a Statutory Agency for the purposes of the Public Service Act 1999. The Chief Executive Officer is the Head of that Statutory Agency for the purposes of that Act. The Chief Executive Officer thus has the powers of the Head of a Statutory Agency under the Public Service Act.
1. The Chief Executive Officer can, on behalf of the Commonwealth, engage persons as consultants to perform services for the Tribunal, including services in relation to conferences under Division 5 of Part 6 and inquiries under Division 6 of Part 6. The power to engage consultants gives the Tribunal additional flexibility to engage persons for short periods and with specific expertise for particular tasks.
1. Division 4 of Part 3 makes provision for a number of other administrative aspects of the Tribunal’s operations.
1. The President is to establish Registries of the Tribunal. There must be at least one in each State, in the Australian Capital Territory and in the Northern Territory. The President must designate one Registry as the Principal Registry.
1. Clause 50 makes provision with respect to delegation of the powers and functions of the President and executive members.
2. The President cannot delegate his or her power of delegation, or powers and functions under provisions listed in the table in subclause 50(2). The President can only delegate to an executive member the powers and functions under provisions listed in the table in subclause 50(3).
3. To avoid doubt, subclause 50(1A) provides that the powers and functions that the President may delegate under subclause (1) do not include powers and functions that the President has in his or her capacity as a member of the Tribunal constituted under:
• Division 2 of Part 5 (which is about the constitution of the Tribunal for the purpose of reviewing a decision); or
• clause 163 (which, among other things, applies Division 2 of Part 5 to the performance of related Tribunal functions).
4. In exercising his or her powers and functions under the Bill, whether delegable or not, the President is expected, where appropriate, to consult with relevant executive members and other members of the Tribunal.
5. One of the functions of the executive members is to determine under paragraph 65(1)(d) whether to grant leave for second-tier review. Subclause 50(4) permits an executive member to delegate that function to a member appointed or assigned to the executive member’s Division, other than a member who was a member of the Tribunal at any stage during the conduct of the review that resulted in the first-tier decision in relation to which second-tier review is sought.
1. The President must give to the Attorney-General an annual report on the activities of the Tribunal, for the Attorney-General to present to the Parliament. The report must be prepared in accordance with guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit.
2. It is expected that the President, in consultation with the relevant executive member, will also prepare reports for each responsible Minister for a Division, as agreed with that Minister, on the management of the administrative affairs of that Division.
1. Part 3 of the Bill does not authorise any member, the Chief Executive Officer, any staff of the Tribunal or a consultant to acquire interests in land within the meaning of the Lands Acquisition Act 1989.
1. A judicial or other proceeding relating to a matter arising out of the management of the administrative affairs of the Tribunal may be instituted by or against the Commonwealth.
1. Part 4 makes provision for all the matters involved in initiating review of administrative decisions. It is divided into 2 Divisions, the first dealing with first-tier review and the second with second-tier review.
1. Division 1 of Part 4 makes provision for obtaining first-tier review of a decision. Subdivision A defines the expressions ‘original decision’ and ‘decision-maker’. Subdivision B requires decision-makers to give notice of various decisions to persons whose interests are affected by them. Subdivision C states who can apply for review of an original decision. Subdivision D requires the Tribunal to conduct first-tier review where a valid application has been made.
1. This clause defines what is an ‘original decision’. As noted above, various laws will provide for applications to be made to the Tribunal for review. Such a law (Law X) may provide for applications for review of decisions made in the exercise of powers conferred by Law X or review of decisions made in the exercise of powers conferred under another law (Law Y) that has effect under Law X. Those decisions, whether made in the exercise of powers under Law X or Law Y, are original decisions.
2. Subclause 54(2) provides that subordinate legislation can provide that applications may be made to the Tribunal for review of original decisions. (Subclause 7(2) also allows subordinate legislation to provide for the amendment of the operation of any provision of this Bill, other than the core provisions, in relation to the review of decisions.) Such subordinate legislation may provide that only certain classes of decisions are reviewable, or stipulate conditions for making applications, or specify the Division in which the decisions are to be reviewed. Acts that provide for applications for review to be made to the Tribunal can, of course, also do all these things.
3. Subclause 54(4) deems a person to have made a decision not to do a thing where the person was required or permitted by a law to do the thing within a specified period and failed to do it within the period.
4. 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.
5. Part 7 places restrictions on the implementation and alteration of decisions during review. Those restrictions also apply to a decision that is taken by subclause 54(4) or section 10 of the Ombudsman Act to have been made.
1. This clause defines who is the ‘decision-maker’ of an original decision. It is designed to ensure potential applicants do not encounter any difficulties in identifying the decision-maker, for example, for the purpose of obtaining statements of reasons.
2. Generally, the person who makes an original decision is the decision-maker.
3. If, after a decision is made, the person who made an original decision ceases to have the duties of a decision-maker under the Bill, then the decision-maker becomes either the person who has those duties or, in other cases:
• the Agency Head if the decision-maker worked in an Agency;
• the manager of an organisation or body if the decision-maker worked in the organisation or body; or
• otherwise, a person specified by the President or by a member authorised by the President.
4. If an Agency Head or the manager of another organisation or body becomes the decision-maker, he or she can delegate, to a person performing duties in the Agency, organisation or body, the powers and functions given to decision-makers under the Bill.
1. The term ‘notifiable decision’ is defined in clause 56 to mean an original decision or a decision that is subject to one or more reviews where any review is an original decision.
2. A person who makes a notifiable decision must take reasonable steps to give notice, to any person whose interests are affected by the decision, that the decision has been made and that the person has:
• a right of review under the Bill; or
• some other right of review where the decision on that review gives rise to a right of review under the Bill.
3. Subclause 56(5) sets out various decisions that are not notifiable decisions for the purposes of the Bill.
4. A person must, in giving notice of a notifiable decision, take into account any guidelines issued by the President to facilitate fulfilment of the obligation to give notice. Such guidelines are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901. This means that they must be tabled in each House of Parliament and may be disallowed.
5. The failure of a person who makes a notifiable decision to give notice in accordance with clause 56 does not affect the validity of the decision.
1. A person whose interests are affected by an original decision may request the decision-maker to give the person a statement of reasons for the decision.
2. In some circumstances, a decision-maker does not have to give a statement of reasons to a person who requests one. These circumstances are set out in subclause 57(3) and are as follows:
• the person has already been given a statement of reasons;
• the person has been given a document setting out the terms of the decision which sets out the reasons;
• the person was given a document setting out the terms of the decision and did not request a statement of reasons within 28 days of receiving that document; or
• the person was not given written notice of the terms of the decision and did not request a statement of reasons within a reasonable time after the decision was made.
3. Unless one of these exceptions (or clause 60, about the exclusion of confidential information) applies, the decision-maker must give a statement of reasons as soon as practicable, but in any event not more than 28 days after receiving the request for it.
4. A decision-maker who refuses to give a person a statement of reasons must notify the person in writing of the refusal and the reasons for it. The notice must be given as soon as practicable, but in any event before the end of 28 days after receiving the request.
1. If a decision-maker gives a person a notice refusing to provide a statement of reasons, the person can apply to the Tribunal for its decision on whether the decision-maker must give the statement of reasons.
2. The Tribunal must decide such applications. If the Tribunal decides that the statement of reasons must be given, the decision-maker must give the statement within 28 days of being advised of the Tribunal’s decision.
1. A person who is given a statement of reasons may consider that the statement is inadequate. Clause 59 enables such a person to apply to the Tribunal for a decision on whether the statement is adequate.
2. The Tribunal must decide such applications. If the Tribunal decides that the statement is inadequate, the decision-maker must give the person an additional statement or statements containing adequate information as soon as practicable, but in any event within 28 days after the Tribunal makes its decision.
1. This clause provides that in certain circumstances a decision-maker is not required to include in a statement of reasons certain information, and in some cases is not required to produce a statement at all.
2. The circumstances where this will be the case are where the Attorney-General has certified in writing that the disclosure of matter contained in a statement of reasons for the original decision, or in an additional statement required by the Tribunal under clause 59 to be given, would be contrary to the public interest because:
• it would prejudice the security, defence or international relations of Australia;
• it would disclose deliberations of Cabinet or of a committee of Cabinet; or
• some other reason exists that could form the basis of a claim for public interest privilege by the Commonwealth.
3. The decision-maker is not required to include in a statement a matter in relation to which the Attorney-General has given a certificate of the kind described in the preceding paragraph and, if the statement would be false or misleading without the matter, the decision-maker is not required to give a statement at all.
4. If the Tribunal later conducts a first-tier review of the original decision or a second-tier review of a first-tier decision, the certificate also has effect for the purposes of the review as if it had been given under clause 101(1) (which deals with non-disclosure of information in relation to review of decisions).
1. A person whose interests are affected by an original decision may apply to the Tribunal to have the decision reviewed. The form etc. of applications is dealt with in Division 2 of Part 9.
2. Subclause (2) provides that the Commonwealth, an authority, tribunal or other body that is established by an enactment, and any other person in any way connected with the Commonwealth, are not prevented from applying for review just because of their status. This subclause has been included to avoid doubt.
1. If a person makes a valid application for review of a decision to the Tribunal, it must review the decision. Parts 5 to 9 apply to the review.
1. Division 2 of Part 4 makes provision for obtaining review by the Tribunal of a first-tier decision. Second-tier review is by leave of the Tribunal and Subdivision A deals with applying for leave. Subdivision B deals with applying for second-tier review where the Tribunal has granted leave. Subdivision C requires the Tribunal to conduct second-tier review where, leave having been granted, a valid application has been made.
2. The provisions of Division 2 are core provisions. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. This clause provides that a person who was a participant at any stage in a first-tier review may apply to the Tribunal for leave to have the Tribunal review the first-tier decision.
2. The decision-maker may apply for leave even if he or she was not a participant in the first-tier review. (Clause 85 sets out the circumstances in which the decision-maker is not a participant).
3. The form etc. of applications is dealt with in Division 2 of Part 9.
1. An application must state the grounds on which the person makes the application. The grounds on which an application can be made are set out in clause 65.
1. This clause specifies the grounds on which leave to apply for second-tier review may be granted. The application must be a valid application.
2. The executive member for the Division where the first-tier decision was made may grant leave. The President may also grant leave and, if an executive member made the first-tier decision (alone or as part of a multi-member panel), only the President (or, in some circumstances, his or her delegate) may grant leave.
3. The President cannot delegate, to anyone other than an executive member, his or her power to grant leave under paragraph 65(1)(c)—where the first-tier review Tribunal consisted of or included an executive member—see subclause 50(3). Of course, that delegation would be to an executive member who was not involved in the first-tier review. However, there is no restriction on the President’s ability to delegate his or her power to grant leave under paragraph 65(1)(d)—where the first-tier review Tribunal did not consist of or include an executive member.
4. The President or executive member must grant leave if:
• the first-tier decision was made by a single member of the Tribunal; and
• the executive member or President is satisfied that the application raises a principle or issue of general significance.
5. The President or executive member must also grant leave if:
• the applicant for first-tier review, and the decision-maker in relation to the original decision, agree in writing that the first-tier decision involved a manifest error of law or fact that materially affected the first-tier decision and the written agreement is given to the Tribunal;
• the President or executive member is satisfied that the first-tier decision involved such an error; and
• there has been no appeal to the Federal Court on a question of law from the first-tier decision.
6. Leave must not be granted if all the participants in the first-tier review have agreed in writing to forgo any right to have the Tribunal review the first-tier decision and have given their written agreement to the Tribunal.
7. A copy of a written agreement may be given to the Tribunal instead of the original: see clause 158.
8. The clause also provides that, unless the executive member or President considers there are special circumstances, a decision by the President or executive member about whether to grant leave for review must be made without any of the participants, or anyone else, appearing before the Tribunal.
9. The President or executive member must notify every participant whether or not leave has been granted.
10. An executive member may, by writing, delegate his or her power to grant leave under paragraph 65(1)(d) to a member appointed or assigned to the executive member’s Division, other than a member who was a member of the Tribunal at any stage during the conduct of the review that resulted in the first-tier decision in relation to which second-tier review is sought: see subclause 50(4).
1. If a participant is granted leave to have the Tribunal review a first-tier decision, the participant can apply for review of the decision. The form etc. of applications is dealt with in Division 2 of Part 9.
1. If:
• an application for review of a first-tier decision has been validly made by a person given leave to seek review; and
• the Tribunal has not been given a written agreement by all the participants in the first-tier review agreeing to forgo any right to second-tier review;
the Tribunal must review the decision. Parts 5 to 9 apply to the review.
2. A copy of a written agreement may be given to the Tribunal instead of the original: see clause 158.
3. Subclause (2) makes it clear that, in second-tier review, references to the decision-maker are to the decision-maker in relation to the original decision (see clause 55)—not to the Tribunal that made the first-tier decision.
1. Part 5 requires the Tribunal to undertake review of decisions in Divisions and provides for the constitution of the Tribunal in conducting reviews.
2. The provisions of Part 5 are core provisions. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. Division 1 of Part 5 provides that the review of a decision is to take place in one of the Divisions of the Tribunal.
1. This clause specifies that, where the Tribunal is required to review a decision, the President is to direct that the review is to take place in a specified Division. If a law requires a decision to be reviewed in a specified Division, the President’s direction must specify that Division.
2. A direction may be given in relation to a particular review, or in relation to all review of a particular kind.
3. It is expected that the President will routinely delegate the giving of directions under this clause to other members or to the Chief Executive Officer or staff.
1. Division 2 of Part 5 makes provision for how the Tribunal is to be constituted to undertake reviews. References elsewhere in the Bill to ‘the Tribunal’ are, where appropriate, references to the Tribunal as constituted for the purpose of the review.
2. The Bill does not preclude the Tribunal constituted for the purpose of conducting a review from also simultaneously reviewing several other decisions where this would be appropriate.
1. The President must direct that 1, 2 or 3 members are to constitute the Tribunal for the purpose of conducting a review. It would not be necessary for the President to name particular members at the time of this initial constitution, although he or she may do so.
2. Many reviews, particularly in areas of high volume decision-making, will be conducted by a single member. The President can only direct that a multi-member panel is to conduct the review if the President considers that to be appropriate either because the review raises a principle or issue of general importance or because one or more of the members has particular expertise that is relevant to the circumstances of the review.
3. Review must be conducted by members appointed or assigned to the Division in which the review is required to be conducted. The President is not, of course, appointed or assigned to a particular Division and may conduct, or participate in the conduct of, a review in any Division.
4. The Tribunal as constituted for a second-tier review cannot include a member who constituted, or was part of, the Tribunal that conducted the first-tier review that resulted in the second-tier review.
5. The President’s direction under this clause may cover when and where the review is to be conducted, the manner in which it is conducted and any other matter relating to the review, subject, of course, to the Bill.
6. The President does not have to give a direction on each occasion when the Tribunal is required to review a decision. Directions can be given in particular cases or in relation to all cases of a kind.
7. Practice and procedure directions may make additional provision about the giving of directions for constitution of the Tribunal. For example, they may require members who are to constitute the Tribunal for the review of particular kinds of decision to have particular qualifications or experience. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
1. This clause provides for the reconstitution of the Tribunal if a member becomes unavailable.
2. If a single member constituted the Tribunal for the review and the member becomes unavailable, the President must direct another member or other members to finish the review. If the member who is unavailable was part of a multi-member panel, the President must either direct the remaining member or members to finish the review or direct another member or members to join the Tribunal to complete the review.
3. The President’s power to reconstitute the Tribunal under this clause is restricted in the same way as is his or her power to constitute the Tribunal initially: see clause 73.
4. A Tribunal can be reconstituted under this provision even if all the members originally constituting it become unavailable: see section 23(b) of the Acts Interpretation Act 1901.
1. This clause gives the President a wide discretion to reconstitute the Tribunal if he or she believes that the reconstitution is in the interests of achieving the objective, set out in paragraph 3(c), that the Tribunal be an accessible mechanism for reviewing decisions that is fair, just, economical, informal and quick.
2. The President’s direction can add more members to the Tribunal, remove members or substitute members or do any or all of these things.
3. The President’s power to reconstitute the Tribunal under this clause is restricted in the same way as is his or her power to constitute the Tribunal initially: see clause 73.
1. This clause allows a participant in a review to request that the Tribunal be reconstituted.
2. If a participant makes such a request, the Tribunal must seek the views of the other participants (by way of submissions) and inform the President about the request and the particulars of any submissions. The President can direct that the Tribunal be reconstituted after taking into account those particulars and any comments the Tribunal may wish to make. The President’s direction need not be in accordance with the participant’s request.
3. The President’s power to reconstitute the Tribunal under this clause is restricted in the same way as is his or her power to constitute the Tribunal initially: see clause 73.
1. The President can only reconstitute a Tribunal under clause 70, 71 or 72 if the resulting panel of members could have been the initially constituted Tribunal in accordance with clause 69.
2. For example, the President could not reconstitute a single-member panel as a multi-member panel at the request of a participant (under clause 72) unless the President considered that a multi-member panel was appropriate either because the review raised a principle or issue of general importance or because one or more of the members had particular expertise that was relevant to the circumstances of the review (as required, in relation to the initial constitution of multi-member panels, by subclause 69(2)).
1. If the Tribunal is reconstituted it must continue to finish the review, and for that purpose it can have access to any record of the review made by, and any document relating to the review held by, the Tribunal as previously constituted.
1. Members must comply with directions given by the President under Division 2.
1. Part 6 sets the procedures to be followed by the Tribunal in conducting review of decisions.
1. Division 1 of Part 6 requires decision-makers to be notified of applications for review of their original decisions and of first-tier decisions, makes provision in relation to statements of reasons, and ensures that the Tribunal has access to relevant records and documents.
1. The Chief Executive Officer must arrange for a decision-maker to be given notice that an application has been made for review of an original decision, for leave to make an application for review of a first-tier decision, or for review of a first-tier decision.
1. Where a decision-maker receives a notice of the kind referred to in clause 76, the decision-maker must provide certain documents to the Tribunal. They include:
• a statement of reasons for the decision; and
• any other document or part of a document that the decision-maker has in his or her possession or control and which is relevant to the Tribunal’s review.
(A copy of a document may be given to the Tribunal instead of the original: see clause 158.)
2. The time limit for providing these documents is 28 days after the day on which the decision-maker receives the notice unless the practice and procedure directions provide for a different time period. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
3. The Tribunal may also, on application by a decision-maker, extend any such period if it considers that it is reasonable in all the circumstances to do so. An application for extension may be made during or after the period.
4. Practice and procedure directions may also provide that decision-makers do not have to provide all relevant documents that are in their possession or control. This allows for protocols to be agreed between the Tribunal and departments and agencies requiring, for example, that only primary files be provided.
1. The Tribunal may require the decision-maker to give an additional statement of reasons where the Tribunal considers that the statement previously given in accordance with clause 77 was not adequate in certain respects. The decision-maker must comply with any such requirement. (A copy of the statement may be given to the Tribunal instead of the original: see clause 158.)
1. The Tribunal may give a decision-maker a notice requiring the decision-maker to give to the Tribunal, within a specified period, a document that the Tribunal considers may be relevant to the review and which the Tribunal considers that the decision-maker has in his or her possession or control.
2. If the document is in the possession or under the control of the decision-maker, he or she must comply with the notice.
3. A copy of the document may be given to the Tribunal instead of the original: see clause 158.
1. A participant in a review must give to the Tribunal documents that are relevant and come into the possession or under the control of the participant during the review and which have not been produced in connection with the participation of any participant in the review. Such a document must be given before the end of 28 days after the day on which the document came into the possession or under the control of the participant. (A copy of the document may be given to the Tribunal instead of the original: see clause 158.)
1. 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 clauses 77 to 80 to be given to participants. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
1. This clause provides that sections 77 to 81 apply in spite of any rule of law relating to privilege or the public interest in relation to the production of documents.
2. This clause allows decision-makers who would otherwise have to produce documents to the Tribunal to apply to the Tribunal to be relieved of that obligation. An application must be on the grounds that there is a need to protect the confidential nature of the document or part of the document. While an application is being considered, a decision-maker is not required to comply with the obligation to give relevant documents to the Tribunal imposed by paragraph 77(1)(b) or subclause 79(2) or clause 80.
3. The Tribunal may decide that the decision-maker does not have to give the document or part of the document to the Tribunal.
4. The Tribunal is required by the clause to make such a decision on the basis of the principle that it is desirable, to achieve effective performance of the Tribunal’s functions, that all participants in a review be made aware of all relevant matters.
1. The Tribunal must give participants reasonable access to documents that they have given to the Tribunal.
1. Division 2 of Part 6 identifies the persons who are, or may elect to become, participants in a review and makes specific provision with respect to decision-makers, Attorneys-General and additional participants in second-tier review, and the cessation of participation in reviews.
1. Participants in a review by the Tribunal are:
• the applicant for review;
• the decision-maker;
• the Attorney-General of the Commonwealth or of a State or of the Australian Capital Territory or the Northern Territory who becomes a participant in a review; and
• any other person who applies to be a participant, if the Tribunal is satisfied that the person’s interests are affected by the decision and that it is appropriate for the person to become a participant.
(In certain circumstances, the Tribunal can direct that a person, other than the decision-maker or an Attorney-General, ceases to be a participant: see paragraphs 128(1)(e) and 129(d).)
2. The clause also provides that:
• persons who were participants at any time in the first-tier review are participants in the second-tier review; and
• to avoid doubt, in the case of second-tier review, the member or members who made the first-tier decision concerned are not participants in the review (this provision has been included to avoid any suggestion that those members “participated” in the first-tier decision).
3. The Head of an Agency, or the person who manages another organisation or body, can give the Tribunal a notice in writing stating that a specified person or persons performing duties in the Agency, organisation or body is to replace the decision-maker as participant for a specified purpose or purposes or for all purposes, in relation to the review of all decisions or a specified class of decisions.
4. It would not be administratively practicable for an Agency, organisation or body if the actual decision-maker were required to be the participant in all cases and for all purposes. These provisions will give such an Agency, organisation or body the flexibility required.
1. A decision-maker may choose not to be, or not to continue as, a participant in a review, by giving written notice to this effect to the Tribunal.
2. An Agency Head or person managing another organisation or body may give a notice to the Tribunal with respect to decision-makers within the Agency or organisation or body that has the effect that they are not, or are no longer, participants in a review.
3. This clause allows for classes of decisions to be reviewed by the Tribunal without the participation of the decision-maker. This is analogous to the situation in the Social Security Appeals Tribunal at the time of the introduction of this Bill, where the decision-maker is precluded from making any oral presentation to the Tribunal. The capacity to review decisions without the participation of the decision-maker is one of the ways in which the Tribunal can fulfil its object of non-adversarial review.
4. Where the decision-maker is not a participant, if the Agency Head or the manager of the organisation or body in which the decision-maker works gives a notice to the Tribunal stating that he or she wishes the decision-maker to be a participant in the review, the decision-maker becomes a participant in the review.
5. Under this clause, the decision-maker is, or is not, a participant depending upon there being a written notice in force. A written notice would remain in force until it was varied or revoked: see section 33(3) of the Acts Interpretation Act 1901.
1. This clause provides a mechanism for:
• the Commonwealth Attorney-General; or
• (in specified circumstances) the Attorney-General of a State or Territory;
to become, or later cease to be, a participant in a review by advising the Tribunal that he or she wishes to do so.
2. If the Commonwealth Attorney-General becomes a participant, he or she may authorise the Commonwealth to pay any costs reasonably incurred by another participant as a result.
3. The Attorney-General may authorise the Commonwealth to provide persons with legal or financial assistance in certain circumstances: see clause 154.
1. A person who is a participant in a review (other than the applicant, the decision-maker or an Attorney-General) may apply to cease to be a participant and the Tribunal must direct that the person ceases to be a participant if it considers this appropriate.
2. Although the applicant cannot apply to cease to be a participant, he or she may, in the manner set out in the practice and procedure directions, end the review of a decision at any time: see clause 127.
3. The decision-maker or an Attorney-General can cease to be a participant: see subclauses 85(1) and (2) and 86(1) and (2).
1. Division 3 of Part 6 makes provision for one member of a multi-member panel to preside, and for the resolution of disagreements between members.
2. The provisions of Division 3 are core provisions. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. A multi-member panel is to have a presiding member. The presiding member is the President, if the President is on the Tribunal, or the executive member, if the executive member is on the Tribunal, or the senior member, if there is only one senior member on the Tribunal. Otherwise, the President must designate a member to preside.
1. In the case of a disagreement between members of a 2-member panel, the opinion of the presiding member prevails. In a 3-member panel, the majority opinion prevails or, in the unusual case where there is no majority opinion, the presiding member’s opinion prevails.
1. Division 4 of Part 6 makes provision for the practice and procedure of the Tribunal. These provisions reflect the objects of the Tribunal.
1. The Tribunal is required to afford procedural fairness.
2. This is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. The Tribunal is not bound by the rules of evidence.
2. This is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. The Tribunal is required to act with as little formality and technicality as possible while ensuring that it gives proper consideration to the matters before it.
2. This is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. The scope of a review can be determined by the Tribunal, in that it can limit the questions of fact and the evidence and the issues that it will consider. However, the Tribunal must afford procedural fairness: see clause 90.
1. Decision-makers who are participants in a review must do all they can to assist the Tribunal to make a decision. This provision will help ensure that Tribunal proceedings are conducted in a non-adversarial way.
1. In reviewing a decision the Tribunal can:
• summon a person to give evidence in person; and/or
• summon a person to give certain documents or things to the Tribunal (though this may not necessarily require personal attendance by that person).
(Copies of documents may be given to the Tribunal instead of originals: see clause 158.)
2. The Tribunal can also require a person giving evidence to answer questions and give certain documents or things to the Tribunal. A person giving evidence is not required to answer a question (which may be asked by the Tribunal, a participant or a participant’s representative—see 96(1)(d)) unless the Tribunal requires the person to do so. The Tribunal must allow a person who has given a document or thing reasonable access to it while it is held by the Tribunal.
3. Consistent with a non-adversarial approach, it is expected that the Tribunal will take an active role in any questioning of participants and other people.
1. This clause provides a very flexible and informal framework within which the Tribunal can operate in conducting reviews. The Tribunal may conduct a review simply on the basis of documents presented to the Tribunal, provided it has notified all participants of its intention to do so and has taken into account submissions made by participants. It also allows the Tribunal to begin a review ‘on the papers’ and then conclude the review by allowing participants to appear before the Tribunal.
2. The Tribunal may also allow participants to appear before the Tribunal to do one or more of a range of things such as give evidence, present arguments, or answer or ask questions. The clause gives the Tribunal wide powers to control the conduct of persons who appear before it.
3. There is no requirement for personal attendance before the Tribunal. In order to facilitate the prompt and efficient resolution of applications, members or other persons can take part in any part of a review by use of electronic media etc.: see clause 104.
1. This clause emphasises the flexible framework within which the Tribunal operates. It allows the Tribunal to authorise members, the Chief Executive Officer, staff, a consultant and other persons to take evidence on behalf of the Tribunal and allows the Tribunal to set out requirements with which those persons must comply. If the Tribunal is constituted by a single member, that member cannot be authorised to take evidence on behalf of the Tribunal. The clause provides that the taking of such evidence is part of the conduct of the review.
1. This clause states that the usual case is that evidence given under clause 95 or 96 or taken under clause 97 must be on oath or affirmation, in the form and manner required by the regulations. However, the Tribunal may take evidence otherwise than on oath or affirmation where the practice and procedure directions so provide, or the Tribunal decides to do so. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
1. When the Tribunal reviews a first-tier decision, it can take into account any record that was made in the conduct of the first-tier review and any document relating to that review that the Tribunal possesses. It may choose to take further evidence, or allow participants to make further statements or present further arguments etc. even if the record of the first-tier review included evidence, statements and arguments, etc.
1. If a participant or any other person appears before the Tribunal, that part of the review is to be in public. Furthermore, when a part of a review is in public, the public nature of the review should be preserved if a person appears before the Tribunal by means of electronic media, etc.
2. The Tribunal may give directions in order to protect the confidential nature of any part of a review. Subclause (4) sets out examples of things such directions may do, such as limit the persons who may be present and prohibit or restrict the disclosure of something to some or all of the participants.
3. Although the Tribunal may protect the confidential nature of a part of a review by giving such directions, in considering whether to give a direction prohibiting disclosure, the Tribunal is required to act on the basis of the principle that it is desirable, to achieve effective performance of the Tribunal’s functions, that all participants in a review be made aware of all relevant matters.
1. The Attorney-General of the Commonwealth or of a State or of the Australian Capital Territory or the Northern Territory may certify that the disclosure of particular information, or of any matter contained in a particular document, would be contrary to the public interest for one of a number of specified reasons. If this happens, then:
• a person must still disclose the information, or give the document to the Tribunal if required by or under the Bill; but
• the Tribunal must do all that is necessary to protect the information or matter contained in the document from disclosure to persons other than members of the Tribunal or the Chief Executive Officer, staff or a consultant performing their duties as such and it must also return documents to the person who provided them.
2. Special provisions apply where the certificate given by an Attorney-General specifies, as the reason that the disclosure of certain matter would be contrary to the public interest, some ground of public interest privilege other than that the disclosure would involve the disclosure of deliberations or decisions of Cabinet or a Cabinet Committee, or, in the case of the Commonwealth, that the disclosure would prejudice the security, defence or international relations of the Commonwealth.
3. In such a case, the Tribunal has to decide whether the information or matter should be disclosed to all or any participants in the review. If it decides that the information or matter should be disclosed, it must make the information available or permit the part of the document containing the matter to be inspected. It may limit disclosure to only some of the participants in the review. In deciding whether the information or matter should be disclosed, the Tribunal must:
• be guided by the principle that it is desirable for participants to be made aware of all relevant matters in the review; and
• have proper regard to any reason specified in the certificate issued by the Attorney-General.
4. The clause excludes the operation of any law about public interest which would otherwise apply.
1. A person may be excused from answering a question put to him or her when giving evidence in a review, where the Attorney-General of the Commonwealth or of a State or of 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.
2. The reason, or one of the reasons, may be that answering the question would involve the disclosure of deliberations or decisions of Cabinet or a Cabinet Committee or, in the case of the Commonwealth, that the disclosure would prejudice the security, defence or international relations of the Commonwealth. In such a case, a court may decide, on an appeal under clause 167 or a reference under clause 172, that it would not be contrary to the public interest for the person to answer the question. In that case, the person must answer the question.
3. If the Attorney-General is of the opinion that answering the question would be contrary to the public interest for a reason other than a reason mentioned in the preceding paragraph, the Tribunal can decide that it would not be contrary to the public interest for the person to answer the question. In that case also, the person must answer the question.
4. The Attorney-General of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory can appear before the Tribunal personally or be represented by certain others for the purposes of informing the Tribunal of his or her opinion under this clause. An Attorney-General may also inform the Tribunal of his or her opinion by writing to the Tribunal.
1. If the Tribunal makes a decision under clause 101 or 102, the Tribunal must notify each applicant in the review, in writing, of the terms of its decision.
2. The clause states that, for the purposes of the Bill, the following are questions of law:
• whether information, or a matter contained in a document, should be disclosed to participants in a review; and
• whether the answering of a question would be contrary to the public interest.
Questions of law may be appealed or referred to the Federal Court: see clauses 167 and 172.
1. The practice and procedure directions may permit members or others to take part in review by use of electronic media and by any other means of communication. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
2. Where electronic means of communication are used, the person taking part by those means is taken to appear before the Tribunal for the relevant part of the review. This will help to ensure that the Tribunal can conduct reviews quickly and economically.
1. A person who is required or permitted to appear before the Tribunal may choose to be represented by another person, where:
• the practice and procedure directions permit it; or
• the Tribunal agrees and the practice and procedure directions do not prohibit it.
(Division 10 of Part 9 deals with the making of practice and procedure directions.)
2. A representative need not be a lawyer or have legal training.
3. To avoid doubt, the clause provides that the practice and procedure directions may require the Tribunal to take specified matters into account when deciding whether to agree to a person being represented.
4. To avoid doubt, the clause also provides that, where a person chooses another person to represent him or her, the practice and procedure directions can regulate the way in which the person chosen represents the person.
5. Assistance, as distinct from representation, may also be given: see clause 106.
6. Clause 105 does not apply to an Attorney-General represented in accordance with subclause 102(4).
1. A person who is required or permitted to give evidence in person before the Tribunal or otherwise appear before the Tribunal may be assisted by an interpreter or by another person who can help them understand what is happening. The use of such an interpreter or assistant is at the discretion of the Tribunal. The interpreter or assistant may be someone chosen by the person who is appearing before the Tribunal, if the Tribunal considers the person so chosen is suitable to assist, or may be someone chosen by the Tribunal.
2. There is no requirement for an interpreter or assistant to be physically present. Consequently, an interpreter could assist by telephone or by use of some other electronic media.
3. This is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. Practice and procedure directions may deal with the Tribunal’s practice and procedure in conducting reviews and incidental matters. 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 Bill.
2. Practice and procedure directions can be varied or revoked: see section 33(3) of the Acts Interpretation Act 1901.
3. This is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. The Tribunal may determine its own practice and procedure for the conduct of a review.
2. The Tribunal’s determinations of practice and procedure can impose obligations on participants or other persons involved in a review.
3. The Tribunal is required to take reasonable measures:
• to ensure participants or other persons involved in the review understand the nature and legal implications of assertions made in the review; and
• on request, to explain to participants or other persons aspects of the procedures of the Tribunal or decisions made by the Tribunal relating to the review.
4. The Tribunal cannot make a determination under this clause that is inconsistent with the Bill or the practice and procedure directions. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
5. This is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. Participants in a review may agree on the terms of a decision or other action that they wish the Tribunal to take in relation to the review. The Tribunal may do so, if it is satisfied that it has power to make the decision or take the action.
1. Division 5 of Part 6 makes provision for the Tribunal, during a review, to conduct conferences or use other processes to resolve relevant issues. Other such processes might include counselling, mediation and conciliation.
1. The practice and procedure directions may permit or require conferences and other processes to be undertaken either for the purpose of resolving issues between participants which are relevant to the review or for any other purpose relating to the review. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
2. The practice and procedure directions may also specify a number of other related matters, such as who will preside at a conference or other process or perform other functions and providing for what the consequences of the conference or other process will be for the review.
3. The clause makes inadmissible statements made and things done at a conference or process in certain cases, except with the agreement of all the participants.
4. Where a conference or other process is presided over by a member of the Tribunal, and a participant objects in writing to the member becoming involved, or having any further involvement, in the review, or in any second-tier review that may result from the first-tier review, the member must not participate in the review. This may mean that the Tribunal has to be reconstituted for the purposes of continuing a review.
5. Even where the practice and procedure directions do not expressly deal with the involvement in a conference or some other process of participants in a review of a decision, the Tribunal may, if it considers it desirable, encourage the participants to take part in a variety of other processes for the purpose of resolving issues relevant to the review or for any other purpose relating to the review.
1. Division 6 of Part 6 makes provision for the Tribunal to hold an inquiry during the course of a review into any issue or matter relevant to the review.
1. At any stage of a review, the Tribunal may arrange for a consultant or a member (except if the member alone constitutes the Tribunal) or the Chief Executive Officer or a member of staff to conduct an inquiry into any issue raised in, or other matter connected with, the review, and to report to the Tribunal on the outcome of the inquiry. The person conducting the inquiry is the ‘inquiry officer’.
1. The inquiry officer can determine the scope of the inquiry, in that he or she can limit the questions of fact and the evidence and the issues considered.
1. In conducting an inquiry, the inquiry officer may, subject to the practice and procedure directions, summon a person to give evidence and give the inquiry officer certain documents or things. When the inquiry officer gives the Tribunal a report on the outcome of the inquiry, the inquiry officer must also give the Tribunal any such documents or things. The person who provided such documents or things should be allowed reasonable access to the documents or things whilst they are held by the inquiry officer or the Tribunal.
2. Clause 82 (which provides that documents do not have to be given to the Tribunal, in certain circumstances, to protect their confidential nature) does not apply to documents required to be given to the inquiry officer. However, as clause 113 is subject to the practice and procedure directions, the directions could impose a similar restriction in relation to inquiry officers, or specify procedures under which the inquiry officer, or the Tribunal, could decide whether such documents must be given to the inquiry officer.
1. At any stage of an inquiry, subject to the practice and procedure directions, the inquiry officer may permit a participant to appear before the inquiry officer and give evidence, make statements, present arguments and do a number of other things. In permitting this, the inquiry officer can control the procedure by imposing conditions on the person, directing the person in the manner in which they are to do any of the things permitted, withdrawing permission for the person to appear and do any of those things, or proceeding in the absence of the person who fails to appear when given reasonable notice.
1. Evidence given at an inquiry must be given on oath or affirmation, in the form and manner required by the regulations. The inquiry officer may take evidence otherwise than on oath or affirmation where the practice and procedure directions so provide, or the inquiry officer decides to do so.
1. The practice and procedure directions can deal with the practice and procedure to be followed by an inquiry officer in conducting an inquiry. Some of the provisions in other Divisions of Part 6, dealing with the Tribunal’s procedures in conducting review, do not apply to the conduct of an inquiry. For example:
• clause 80, which provides for the Tribunal to be given any later documents that are relevant;
• clause 82, which provides that documents do not have to be given to the Tribunal, in certain circumstances, to protect their confidential nature (see paragraph 2 of this memorandum);
• clause 105, which provides for a person who is required or permitted to appear before the Tribunal to be represented by another person; and
• clause 106, which provides for other assistance to be provided.
Practice and procedure directions could make similar provision in relation to inquiries where this would be appropriate. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
2. This is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. An inquiry officer has power to decide other matters of practice and procedure that will apply to his or her inquiry provided they do not conflict with the Bill and the practice and procedure directions. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
2. The inquiry officer is required to take reasonable measures:
• to ensure participants or other persons involved in the inquiry understand the nature and legal implications of assertions made in the inquiry; and
• on request, to explain to participants or other persons aspects of the procedures of the inquiry officer or decisions made by the inquiry officer relating to the inquiry.
1. The Tribunal must give a copy of the inquiry officer’s report to the participants as soon as practicable after the inquiry officer has given his or her report to the Tribunal. The Tribunal can adopt anything in the report but only if it has first given the participants an opportunity to make submissions about the content of the report and has taken those submissions into account.
1. Where an inquiry officer is a member of the Tribunal, and a participant objects in writing to the member becoming involved, or having any further involvement, in the review, or in any second-tier review that may result from the first-tier review, the member must not participate in the review. This may mean that the Tribunal has to be reconstituted for the purposes of continuing a review.
1. Part 7 provides for the following matters:
• the effect that the conduct by the Tribunal of a review has on the operation of the original decision or first-tier decision being reviewed;
• the power of the Tribunal, Federal Court and Federal Magistrates Court to stay the implementation of a decision being reviewed or in respect of which an appeal has been made;
• the power of a decision-maker to change a decision that is being reviewed;
• the power of the Tribunal to refer a matter back to a decision-maker for reconsideration if new information becomes available during the review of a first- or second-tier decision or for any other reason; and
• if a decision-maker reconsiders a decision and changes it—the effect, upon the review, of that change.
1. This clause defines the 2 situations where ‘all review and appeal action has been finalised’ in relation to an original decision.
2. The first situation is where:
• there has been a first-tier review of an original decision;
• the first-tier decision has come into effect;
• participants are entitled to appeal to the Federal Court under clause 167; and
• one of the following applies:
− the period for appealing from the first-tier decision has ended without any appeal having been made; or
− an appeal or appeals have been made and the Federal Court or Federal Magistrates Court has determined every appeal.
A Tribunal decision need not come into operation when it is made: see subclause 135(2). Participants can only become entitled to appeal in limited circumstances: see subclause 167(1).
3. The second situation is where:
• there has been a second-tier review of a first-tier decision;
• the second-tier decision has come into effect;
• participants are entitled to appeal to the Federal Court under clause 167; and
• one of the following applies:
− the period for appealing from the second-tier decision has ended without any appeal having been made; or
− an appeal or appeals have been made and the Federal Court or Federal Magistrates Court has determined every appeal.
1. This clause sets out a basic rule: an original decision has effect, and action may be taken to implement it, despite the fact that an application for review has been made. This applies to applications for first-tier review, applications for leave to apply for second-tier review, and applications (with leave) for second-tier review.
2. However, in some circumstances the operation of a decision, or part of a decision, may be stayed, either by the Tribunal or, under clause 171(3), the Federal Court or Federal Magistrates Court.
3. The Tribunal may, at any time during a review, give a written direction that the operation or implementation of an original decision or a first-tier decision or part of it be stayed or otherwise affected for any or all of the period until all review and appeal action has been finalised in relation to the decision. Such a direction may be made subject to conditions specified by the Tribunal.
4. The Tribunal may give such a direction where:
• a participant has applied to the Tribunal to give such a direction; and
• the Tribunal considers it desirable to give the direction so as to ensure that the review of the decision will be effective, having first taken into account the interests of persons who might be affected by the decision.
5. An example where such a stay may be desirable is where the original decision is to pay an allowance; if the original decision is not stayed, it may not be possible to recover the allowance if the Tribunal reverses the original decision. Alternatively, where an original decision is to cease to pay an allowance, a stay resulting in continuing payment of the allowance might be desirable to avoid hardship to the individual affected.
6. The Tribunal can vary or revoke a written direction: see section 33(3) of the Acts Interpretation Act 1901.
1. This clause deals with the situation where the Tribunal has given a direction under subclause 121(3) or 121(4): that is, where the Tribunal has directed that the coming into effect of an original decision or a first-tier decision, or part of a decision, be stayed. In such a case, clause 122 ensures that any stay in effect continues in effect, and any later Tribunal decision on the review is similarly stayed, until all review and appeal action has been finalised in relation to the original decision.
2. However, the Tribunal, until such time as an appeal to the Federal Court under clause 167 is made, may direct that implementation of a decision or part of it not be stayed. The Federal Court or the Federal Magistrates Court may also make orders precluding implementation of a decision or part of it from being stayed.
1. During the review of an original decision or a first-tier decision, and subject to clauses 124 and 125, the decision-maker cannot alter the original decision (including the original decision as varied by the Tribunal’s first-tier decision) otherwise than in accordance with Part 7, unless the participants and the Tribunal consent to the alteration or the enactment that authorised the making of the application expressly permits the decision to be altered.
2. The word ‘alter’ is defined to mean:
• vary the decision;
• set the decision aside; or
• set the decision aside and make a substitute decision.
3. Although the power to set a decision aside, without making any decision in substitution, is not one that the Tribunal can exercise in reviewing a decision (see clause 133), the enactment that authorised the making of the application may expressly permit the decision to be altered in this way and/or the participants in the review may consent to that alteration. Accordingly, that power is included in the definition of ‘alter’ in this clause.
4. If the decision-maker sets an original decision aside without making a new decision in substitution, the review ends: see subclause 126(3).
1. If, in the course of first- or second-tier review, the Tribunal becomes aware that information that it has, or that is given to it, is new information, the Tribunal must decide whether or not to refer the new information to the decision-maker and ask the decision-maker to reconsider the original decision in the light of it.
2. In making this decision, the Tribunal is to take into account the following factors:
• whether the applicant knew about the information before the original decision was made and, if so, whether the applicant had a reasonable explanation for not telling the decision-maker about it;
• whether it would be more efficient for the Tribunal to continue to conduct the review; and
• matters set out in the practice and procedure directions.
(Division 10 of Part 9 deals with the making of practice and procedure directions.)
3. An applicant who knew about the information before the original decision was made would have a reasonable explanation for not mentioning it if, for example, he or she was not in a position to understand the relevance of that information to the decision that was to be made.
4. If the Tribunal decides to refer the new information to the decision-maker and ask the decision-maker to reconsider the original decision in the light of it, the decision-maker must do so and must either affirm the decision, vary it or set it aside and substitute a new decision. If the decision-maker does not do one of these things within a specified time, he or she is taken to have affirmed the decision.
5. The review by the Tribunal then becomes a review of the varied decision, or the substituted decision, and the applicant can either proceed with the review or not: see subclauses 126(1) and (2).
6. The term ‘new information’ is defined in sub-clause (7). The information must not have existed, or the decision-maker must have been unaware of it, at the time of the original decision. Furthermore, the information must be such that, had the decision-maker been aware of it at that time, he or she may not have made the decision or may have made it in a materially different way.
1. Even in a case where new information is not placed before the Tribunal, and therefore clause 124 does not apply, the Tribunal may refer a matter to a decision-maker for reconsideration. The decision-maker must reconsider the decision and either affirm it, vary it or set it aside and substitute a new decision.
2. The review by the Tribunal then becomes a review of the varied decision, or the substituted decision, and the applicant can either proceed with the review or not: see subclauses 126(1) and (2).
1. A review becomes a first-tier review of a varied original decision where the decision-maker varies the original decision in accordance with clause 123, 124 or 125. In that event, the applicant may either proceed with the review or end it.
2. A review becomes a first-tier review of a new decision where the decision-maker sets an original decision aside and substitutes a new decision for it in accordance with clause 123, 124 or 125. In that event, also, the applicant may either proceed with the review or end it.
3. The practice and procedure directions could deal with the consequences of, for example, a second-tier review becoming a first tier review by providing for reconstitution of the Tribunal where appropriate, continuing access of the Tribunal to records of the earlier (second-tier) review, etc.
4. The review ends if, as mentioned in clause 123, the decision-maker sets an original decision aside but does not make another decision in substitution.
1. Part 8 deals with the circumstances in which a review by the Tribunal is completed or ends early.
1. Division 1 of Part 8 makes provision for the early ending of a review. (Subclause 126(3), in Part 7, may also result in a review ending early after a decision-maker has reconsidered an original decision in the course of a review.)
1. An applicant for review may end the review at any time, in accordance with the practice and procedure directions. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
1. The Tribunal may end a review or direct that a participant will cease to be a participant in the review. The Tribunal may do this where a participant in the review (other than the decision-maker or the Attorney-General) fails to appear (either in person or through a representative):
• at any part of the review in which he or she was required to appear;
• at a conference or other process under clause 110 in which he or she was required to take part; or
• at any part of an inquiry under clause 111 in which he or she was required to appear before an inquiry officer.
2. Before doing either of these things, the Tribunal has to be satisfied that the person had appropriate notice of the time and place for attendance.
3. The clause makes it clear that participation in a review by electronic media as allowed by clause 104, or in a conference, process or inquiry as allowed by the equivalent provision in the practice and procedure directions, satisfies the requirement of attendance. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
1. The Tribunal may end a review (if the participant is the applicant) or direct that a participant ceases to be a participant (if the participant is not the applicant) if the participant fails without reasonable excuse to comply with practice and procedure directions, or other directions or obligations imposed by the Tribunal or inquiry officer. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
2. This does not apply if the participant in question is the Attorney-General or the decision-maker, because their involvement is to assist the Tribunal.
3. A failure to comply with a direction or obligation may also be an offence under clause 149 (about contempt of the Tribunal).
1. The Tribunal may also end a review of an original decision if it is satisfied that the application is frivolous or vexatious. If a participant applies to the Tribunal, it may also direct an applicant not to make a subsequent application without the leave of the Tribunal. However, the Tribunal must afford procedural fairness: see clause 90.
2. The Tribunal can vary or revoke a written direction: see section 33(3) of the Acts Interpretation Act 1901.
1. All of the participants at any stage in the first-tier review can, by unanimous written agreement, forgo any right to second-tier review. This clause ensures that where, for example, all of the participants wish to take a matter to the Federal Court for resolution, they are not required to apply to the Tribunal for leave for second-tier review, and to have leave refused or a second-tier review conducted, before doing so.
1. This clause gives the Tribunal a power, on application by a participant, to reinstate a review it has ended. The practice and procedure directions may include guidelines which must be complied with by the Tribunal in deciding whether to reinstate a review. (Division 10 of Part 9 deals with the making of practice and procedure directions.)
2. If a review were reinstated, this would necessarily involve the reinstatement of those persons who were participants when the review ended.
1. Division 2 of Part 8 deals with the usual case: the end of review through a decision on the merits by the Tribunal.
1. This clause provides that the Tribunal can, in reviewing an original decision, exercise all the powers and discretions that are conferred on the decision-maker by the relevant enactment. Provisions of this kind are interpreted as conferring on tribunals the power to make the correct or preferable decision.
2. In reviewing an original decision, the Tribunal must make a decision, in writing, that:
• affirms the decision;
• varies the decision;
• sets the decision aside, and:
− substitutes another decision; or
− remits the matter to the decision-maker for reconsideration in accordance with the Tribunal’s directions and recommendations.
3. This clause also empowers the Tribunal, when it reviews a first-tier decision, to exercise all the powers and discretions that are conferred by subclauses (1) and (2) on the Tribunal when it reviews the original decision and makes a first-tier decision.
4. In reviewing a first-tier decision, the Tribunal must make a decision, in writing, that:
• affirms the first-tier decision;
• varies the first-tier decision; or
• sets the first-tier decision aside and substitutes another decision.
5. The Tribunal’s powers under paragraph 133(4)(c) in respect of first-tier decisions of the Tribunal differ from those under paragraph 133(2)(c) in respect of original decisions of decision-makers, in that there is no power under paragraph 133(4)(c) to set aside the Tribunal’s first-tier decision and remit the matter to the first-tier review Tribunal for reconsideration in accordance with any directions or recommendations of the second-tier review Tribunal.
6. If the second-tier review Tribunal wished to set aside the original decision and remit it to the original decision-maker with recommendations, it could achieve this:
• under paragraph 133(4)(b) by varying the first-tier decision so that it becomes one that the first-tier review Tribunal could have made; or
• under paragraph 133(4)(c) by replacing the first-tier decision with one that the first-tier review Tribunal could have made.
The varied or new decision that the first-tier review could have made would be one, made under subparagraph 133(2)(c)(ii), to set aside the original decision and remit it to the original decision-maker with recommendations.
7. The Tribunal may also make a decision in terms agreed upon by the participants if it is satisfied that it has the power to make a decision in those terms.
1. An original decision as varied by the Tribunal, or a new decision made in substitution for that original decision, is taken to be a decision of the decision-maker for all purposes (other than for the purposes of applying to the Tribunal for review or of appealing to the Federal Court under clause 167 on a question of law).
2. If the Tribunal’s decision is a first-tier decision, the original decision can be varied, or set aside and a new decision made in substitution.
3. If the decision is a second-tier decision, the Tribunal does not vary the original decision, or set it aside and substitute a new one, although the second-tier decision may have that effect. (See, for example, paragraph 6 of this memorandum.)
1. With some exceptions, a decision of the Tribunal under clause 133 comes into operation immediately. The Tribunal may, however, specify that a decision will come into effect on a later date.
2. Specific provision is made by subclause (3) in relation to a decision of the Tribunal to which clause 134 applies (one that is—or effectively is—a decision that varies an original decision or makes a new decision in substitution for an original decision). In such a case, the original decision as varied, or the new decision made in substitution for the original decision, is effective from the day on which the original decision had or has effect, unless the Tribunal orders otherwise.
1. The Tribunal must give reasons for any decision made under subclause 133(2) or (4). The Tribunal has a discretion whether to give reasons for a decision, made under subclause 133(5), in terms agreed upon by the participants.
2. In giving its reasons, the Tribunal must observe any restrictions on the disclosure of material imposed by clause 101.
3. The Tribunal can give its reasons orally or in writing. There is no requirement for reasons to be given in writing in the first instance, in order to facilitate the efficient review of applications.
4. A copy of the Tribunal’s decision and a copy of any reasons which are reduced to writing must be given to each participant in the review, and to the decision-maker if he or she is not a participant.
5. If the Tribunal has only given oral reasons for its decision, a participant can request the Tribunal to give the participant a statement in writing of the Tribunal’s reasons. The request must be made within 28 days after the copy of the decision was given to the participant. The Tribunal must give a written statement if so requested. It has 28 days in which to do so.
6. Written reasons for decision must set out the findings of the Tribunal on material questions of fact and refer to evidence or other material on which those findings were based.
7. The Tribunal may also publish a decision and any reasons. If it does so, it must publish a version that complies with any obligations of confidentiality and non-disclosure of information imposed by virtue of subclause 100(3) and paragraph 101(5)(a). For example, if the name of one of the participants in the review is of a confidential nature, the published version of the Tribunal’s reasons would reflect that.
1. A document that purports to be a copy of a decision, or reasons for decision, of the Tribunal, and that purports to be certified by the Chief Executive Officer as a true copy of the decision, or of the reasons, is prima facie evidence of the decision or reasons.
2. If the Tribunal only gives oral reasons for its decision, evidence of those reasons is not admissible in any court and in certain other proceedings.
3. If the Tribunal gives oral reasons for its decision, then adopts a transcript as its written decision, that transcript is not evidence of the oral reasons for decision (for the purposes of subclause 137(2)) but the written reasons for the decision.
1. If the Tribunal considers that there is an obvious error in the text of a decision made under clause 133 or in a written statement of reasons, the President or the presiding member at the review may alter the decision or statement. If it does so, then the altered text is the decision or the reasons for the decision. The clause does not define the term ‘obvious error’ but gives some examples of what are obvious errors. These include typographical errors and an inconsistency between a decision and a statement of reasons.
1. This clause empowers the Tribunal, once all review and appeal action has been finalised, to return documents or other things given to the Tribunal to the decision-maker or other person who gave them to the Tribunal.
2. The clause also empowers the Tribunal to return certain documents or things to the persons who gave them to the Tribunal, where the documents or things were sent to the Federal Court or the Federal Magistrates Court in accordance with clause 173(3) or (4) and returned to the Tribunal by either Court.
3. Documents or things given to an inquiry officer are later given to the Tribunal (see subclause 113(4)) and so are also covered by clause 139.
1. Part 9 makes provision in relation to a range of matters associated with a review.
1. Division 1 of Part 9 sets out the things to which Part 9 applies.
1. Part 9 applies to the review of decisions by the Tribunal and things done in the review, and also to any other things done under Parts 4 to 8 or under a provision of another Act. The doing of other things is called the ‘performance of a related Tribunal function’. An example of the performance of a related Tribunal function is making a decision under subclause 58(2) whether a decision-maker must give a statement of reasons for a decision.
1. Division 2 of Part 9 provides for the way in which an application for review may be made to the Tribunal.
1. An application to the Tribunal must be made in a form and manner set out in the practice and procedure directions. (Division 10 of Part 9 deals with the making of practice and procedure directions.) It is expected that practice and procedure directions issued by the Minister responsible for a Division, or by the executive member in that Division, will deal with the form and manner of the making of applications for review of decisions within that Division. Directions issued by the President as to the form and manner of applications are expected to deal with applications for review in all Divisions.
2. The Chief Executive Officer is to ensure that reasonable assistance is given to people seeking help in making an application or participating in a review or doing something involved in a related Tribunal function.
1. The regulations or any other enactment may provide time limits for the making of applications to the Tribunal. Examples of such applications are:
• applications for first-tier review (provided for in another enactment—see subclause 54(1));
• applications for leave to make an application for second-tier review (clause 63);
• applications for second-tier review, leave having been granted (clause 66); and
• applications for waiver of a fee (paragraph 143(1)(b)).
2. The Tribunal may, on application, extend the time limit applicable to a particular application. The regulations or other enactment may require the Tribunal to be satisfied about specified matters before extending a time limit. If not, the Tribunal must be satisfied that an extension is reasonable in all the circumstances.
3. An application for an extension of time may be made even after the relevant deadline has passed.
4. The intention of this clause is to ensure that applications in relation to review of decisions are made reasonably promptly, but to allow applications to be made in deserving cases where the time limit that would otherwise apply has expired.
1. The regulations may provide that fees are payable and also set out circumstances in which fees may be waived. If a fee is payable, an application (the ‘primary application’) must be accompanied by the fee or an application for waiver of the fee. If an application for waiver of the fee is made, the Tribunal must decide in accordance with the regulations whether to waive the fee.
2. If the Tribunal does not waive the fee, the fee must be paid and, if not, the primary application is taken never to have met the requirements of the clause—even if review of the decision that is the subject of the primary application had already commenced.
1. Division 3 of Part 9 provides appropriate protections and immunities for people involved in reviews and other Tribunal processes
1. Members of the Tribunal have, in performing their duties, the same protection and immunity as Justices of the High Court.
2. The Chief Executive Officer, staff and consultants (when presiding over or performing other functions in relation to a conference or other process under Division 5 of Part 6, and when conducting inquiries under Division 6 of Part 6) also have, in performing their duties, the same protection and immunity as Justices of the High Court.
3. Participants and other persons involved in a review or in a conference or other process, or inquiry, under Division 5 or 6 of Part 6, when they are appearing before, or giving documents or things to the Tribunal or conference or process or inquiry, are subject to the same protection and liabilities as witnesses in proceedings in the High Court.
4. A lawyer or other representative or assistant appearing on behalf of a participant or person involved in a review, or at a conference or other process or an inquiry, has the protection and immunity of a barrister appearing for a party in proceedings in the High Court.
1. Division 4 of Part 9 makes provision for offences in relation to the functions of the Tribunal. Clause 150 applies Chapter 2 of the Criminal Code, which sets out general principles of criminal responsibility, to offences against the Division. The penalties stated at the foot of clauses in this Division are maximum penalties: see section 4D of the Crimes Act 1914.
1. A person commits an offence:
• if he or she refuses or fails to comply with a summons to appear before the Tribunal or an inquiry officer to give evidence; and
• if he or she is summoned or otherwise required to give the Tribunal or an inquiry officer a document or other thing and refuses or fails to comply.
The maximum penalty for each of these offences is 30 penalty units or imprisonment for 6 months.
1. It is an offence for a person appearing before the Tribunal or an inquiry officer to give evidence:
• to refuse or fail to take an oath or affirmation when giving evidence that must be given on oath or affirmation; or
• to refuse or fail to answer a question that the Tribunal or inquiry officer requires the person to answer.
The maximum penalty for each of these offences is 30 penalty units or imprisonment for 6 months.
1. It is an offence for a person to give evidence to the Tribunal or an inquiry officer that the person knows to be false or misleading in a material particular. The maximum penalty for this offence is 60 penalty units or imprisonment for 12 months.
1. It is an offence for a person to refuse or fail to comply with a direction given by the Tribunal under clause 100(3). The maximum penalty for this offence is 30 penalty units or imprisonment for 6 months.
1. It is an offence for a person to obstruct or hinder the Tribunal or a member or an inquiry officer in the exercise of powers or performance of functions under the Bill. The maximum penalty for this offence is 60 penalty units or imprisonment for 12 months.
1. Chapter 2 of the Criminal Code applies to all offences against Division 4 of Part 9. That chapter sets out general principles of criminal responsibility.
1. Division 5 of Part 9 makes provision for the protection of the confidentiality of information.
1. This clause applies to persons who are, or have been, members of the Tribunal, the Chief Executive Officer, staff or a consultant.
2. Such a person is not competent, and must not be required, to give certain evidence in a court or to produce certain documents in certain specified situations. Furthermore, such a person cannot be required to give evidence to a court in relation to any review conducted by the Tribunal.
3. The terms ‘court’ and ‘produce’ are given expanded meanings. The exclusion of the Commonwealth Ombudsman from the definition of ‘court’ ensures that his or her power to obtain information and documents is not affected by this clause.
1. This clause applies confidentiality provisions of other enactments, in certain circumstances, to a person who is or has been a member of the Tribunal, the Chief Executive Officer, staff or a consultant.
1. Division 6 of Part 9 makes provision for fees for witnesses before the Tribunal.
1. A person summoned to appear before the Tribunal or an inquiry officer to give evidence is entitled to be paid any fees and allowances set out in the regulations. Fees and allowances are to be paid either by:
• the participant (other than the decision-maker) who requested that the person be summoned; or
• in any other case, by the Commonwealth.
2. The Tribunal may direct the Commonwealth to pay some or all of the fees or allowances that would otherwise be payable by a participant.
3. Fees and allowances payable to a person by a participant are recoverable as a debt due to the person by the participant.
1. Division 7 of Part 9 makes provision for legal assistance and costs in relation to review by the Tribunal and the performance of related Tribunal functions.
1. The Attorney-General may, on application by a person, authorise the Commonwealth to provide legal or financial assistance to the person (either with or without conditions).
2. A person (other than a member of the Tribunal, staff or a consultant) may apply for assistance if the person may become involved, or is or has been involved, in a review or in the performance of a related Tribunal function, or the person proposes to institute a proceeding or is a party to such a proceeding before a court in respect of a matter arising under the Bill.
3. The Attorney-General can only authorise the provision of assistance if satisfied that refusing the application would involve hardship to the applicant and, in all the circumstances of the case, it is reasonable to authorise assistance.
4. If the Attorney-General becomes a participant in a review, he or she may authorise the Commonwealth to pay any costs reasonably incurred by another participant as a result: see subclause 86(3).
1. Participants in reviews and certain other persons involved in the performance of related Tribunal functions have to bear their own costs. This provision is, of course, subject to other legislation that might empower the Tribunal to award costs.
1. Costs may be taxed in certain circumstances. If the Tribunal (empowered by an Act) requires a participant or a person involved in a review (the payer) to pay another participant or a person involved in a review (the payee) the reasonable costs incurred by the payee, and the payer and payee cannot agree on the amount, then the Tribunal may tax or settle those costs or give directions for the costs to be taxed by the Chief Executive Officer or by staff.
2. If the costs are taxed by the Chief Executive Officer or staff (that is, not by the Tribunal), either the payee or the payer may apply to the Tribunal for review of the amount taxed. The Tribunal must decide such applications. On the review, the Tribunal can affirm the amount, substitute a different amount or remit the matter to be taxed again, in accordance with its directions.
3. Any amount the payer is required to pay to the payee is recoverable as a debt due to the payee by the payer.
1. Division 8 of Part 9 makes provision for giving documents and things to the Tribunal.
1. If a person is permitted or required by the Bill to give the Tribunal or an inquiry officer a document or thing, the person is to give it to the Chief Executive Officer or staff at a Registry, or by a method set out in the practice and procedure directions.
1. If documents are permitted or required by the Bill, or the practice and procedure directions, to be given to the Tribunal or to an inquiry officer, the Chief Executive Officer or staff of the Tribunal, copies can be given instead. The recipient can require the copy to be certified as being a true copy. If a copy is given instead of an original document, the Bill applies to the copy in the same way as it would have applied to the original.
1. If the Tribunal or any person is permitted or required by the Bill to give a decision-maker a notice or other document or thing:
• the Tribunal or other person may instead give the notice or document or thing to the relevant Agency Head; and
• if the regulations or another enactment says that the holder of a particular office is a person to whom documents or things may be given under this Bill in relation to a class of decisions that includes the original decision, the Tribunal or other person may instead give the notice or document or thing to the holder of that office.
2. Sections 28A and 29 of the Acts Interpretation Act 1901 deal with the manner in which the documents may be given.
1. Division 9 of Part 9 deals with the provision of advisory opinions by the Tribunal.
1. The Tribunal may give advisory opinions in certain cases.
1. Division 10 of Part 9 makes provision for practice and procedure directions to be given by the President, a responsible Minister or an executive member.
2. The provision in this Division is a core provision. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. Anything that the Bill requires or permits to be dealt with in practice and procedure directions can be the subject of a direction by the President, the responsible Minister for a Division or the executive member for a Division. An example is clause 107 (about the Tribunal’s conduct of the review of decisions).
2. Directions by the President may relate to the Tribunal as a whole or to one or more Divisions or to any class of matters. The directions given by a responsible Minister for a Division or the executive member for a Division can only relate to that Division and may relate to a class of matters within that Division.
3. Certain consultations must take place and certain matters must be taken into account when directions are being prepared.
4. Directions cannot be inconsistent with the Bill, however some provisions of the Bill allow the practice and procedure directions to prevail over other provisions. See, for example, subclause 113(1) which expressly provides that an inquiry officer’s power to summon persons is subject to the practice and procedure directions.
5. The clause makes clear which directions prevail in the event of any inconsistency. A responsible Minister’s directions will prevail over all others to the extent of any inconsistency. The President’s directions prevail over the directions of an executive member to the extent of any inconsistency.
6. Directions must be complied with.
7. Practice and procedure directions can be varied or revoked: see section 33(3) of the Acts Interpretation Act 1901.
8. The President cannot delegate his or her power to issue directions under subclause 161(1): see subclause 50(2).
1. Division 11 of Part 9 makes specific provision with respect to the performance of related Tribunal functions.
2. The provisions of Division 11 are core provisions. Other Acts are to be interpreted, as far as possible, as not changing core provisions and subordinate legislation cannot change them: see clause 7.
1. The President must direct that the performance of a related Tribunal function is to take place in a particular Division. If a law requires a decision to be reviewed in a specified Division, and the performance of the related Tribunal function relates to the decision, the President’s direction must specify that Division.
2. An example of the effect of this provision 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.
3. The President’s directions can be given in relation to the performance of the function on a single occasion or on all occasions of a kind or on all occasions.
1. Division 2 of Part 5 and Division 3 of Part 6 apply equally to the performance of a related Tribunal function as they to the conduct of a review required by clause 62 or 67. Division 2 of Part 5 makes provision for the constitution and reconstitution of the Tribunal. Division 3 of Part 6 provides for a member of a multi-member panel to preside, and for the resolution of disagreements between members of such a panel.
1. Clauses 90, 91 and 92 apply equally to the performance of a related Tribunal function as they do to the conduct of a review required by clause 62 or 67. Therefore the Tribunal, in the performance of a related Tribunal function, must afford procedural fairness and act with as little formality and technicality as possible, and may inform itself on any matter in such manner as it thinks fit.
1. The practice and procedure directions can deal with the practice and procedure to be followed by the Tribunal in performing a related Tribunal function and incidental matters. Clause 108 (which deals with the power of the Tribunal to determine its own practice and procedure) applies equally to the performance of a related Tribunal function as it does to the conduct of a review required by clause 62 or 67.
1. Part 10 makes provision for appeals and references on questions of law to be made to the Federal Court.
1. Division 1 of Part 10 applies that Part to review by the Tribunal of an original decision or a first-tier decision under powers conferred on it by an enactment or by a law of a State, the Australian Capital Territory or the Northern Territory.
1. If the Tribunal, in reviewing an original decision or a first-tier decision, exercises powers conferred on it by an enactment or by a law of a State, the Australian Capital Territory or the Northern Territory, then Part 10 of the Bill will apply.
2. Where the Tribunal is exercising power conferred on it by a law of a State or the Australian Capital Territory or Northern Territory, Part 10 has effect so that any reference in Part 10 to another clause of the Bill is treated as if that other clause applied as the relevant State or Territory law.
3. Division 1 of Part 10 is based on a corresponding provision of the Administrative Appeals Tribunal Act 1975, which was inserted by the Jurisdiction of Courts Legislation Amendment Act 2000. The Division is designed to ensure that if the States and two internal Territories, as part of co-operative State/Territory/Commonwealth schemes, confer powers and functions on the Tribunal in the same way as they conferred powers and functions on the Administrative Appeals Tribunal, then appeals and references on questions of law may be made to the Federal Court from decisions of the Tribunal made in the exercise of those powers and functions. As a result of the High Court’s decision in Re Wakim; ex parte McNally [1999] HCA 27, the States cannot themselves confer jurisdiction on the Federal Court to deal with questions of law arising out of the exercise by a Commonwealth officer or body of powers and functions conferred by State laws. However, the High Court recognised in Re Cram; ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117 that, in general, where a Commonwealth officer or authority exercises a power or function validly conferred by State law, the officer or authority remains a Commonwealth officer or authority, amenable to federal judicial review.
1. Division 2 of Part 10 provides for appeals to the Federal Court on questions of law, and for the transfer of those appeals to the Federal Magistrates Court.
1. A participant in a first-tier review may appeal to the Federal Court on a question of law if:
• the person applied to the Tribunal for leave to apply for second-tier review and the Tribunal refused leave;
• the person applied to the Tribunal under subclause 142(2) to extend the period of time in which an application for leave could be made and the Tribunal refused;
• the participants have agreed to forgo any right to have the Tribunal review the first-tier decision; or
• the Tribunal that made the first-tier decision was constituted by a multi-member panel and no application for second-tier review (on the grounds of manifest error—the only ground available where the first-tier decision was made by a multi-member panel) has been made.
2. A participant may appeal to the Federal Court from a second-tier decision on a question of law.
3. Where a person applies to the Tribunal under clause 61 for the review of an original decision and the Tribunal decides that the person’s interests are not affected by the decision, the person may appeal to the Federal Court from the Tribunal’s decision.
4. Where a person applies to the Tribunal to be made a participant in the review of a decision and the Tribunal decides that the person cannot become a participant because the person’s interests are not affected by the decision, the person may appeal to the Federal Court from the Tribunal’s decision.
5. A person may also appeal to the Federal Court from a decision by the Tribunal under subclause 59(2) relating to the adequacy of a statement of reasons given by the original decision-maker.
6. Where the Tribunal makes a decision under subclause 101(6) or 102(3) about whether information or matter should be disclosed or a question should be answered, any participant may appeal to the Federal Court from the Tribunal’s decision.
7. If:
• the Attorney-General of the Commonwealth informs the Tribunal that answering a question would be contrary to the public interest because the disclosure:
− would prejudice the security, defence or international relations of the Commonwealth; or
− would involve the disclosure of deliberations or decisions of the Cabinet, or of a Cabinet Committee;
or if:
• the Attorney-General of a State or of the Australian Capital Territory or the Northern Territory informs the Tribunal that answering a question would be contrary to the public interest because it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Cabinet Committee, of the State or Territory;
then any participant in the review may appeal to the Federal Court on the question of law whether answering the question would be contrary to the public interest.
1. This clause sets time limits within which persons may exercise their rights of appeal to the Federal Court. An appeal must be made in the manner prescribed by the Federal Court Rules.
2. Where the Tribunal refuses to grant a person leave to apply for second-tier review, the person must appeal within 28 days of being notified of the refusal.
3. Where the Tribunal refuses to extend the period in which an application for leave to apply for second-tier review may be made, the person must appeal within such period as the Federal Court considers is reasonable.
4. In the case of other appeals from first-tier decisions, the person must appeal within 28 days of being notified of the Tribunal’s decision.
5. An appeal by a person to the Federal Court under subclause 167(7) on a question of law about public interest must be made within 28 days of the person being notified that the Attorney-General concerned has informed the Tribunal that answering a question would be contrary to the public interest.
6. All other appeals must be made by a person within 28 days of the person being notified of the relevant Tribunal decision.
7. The Federal Court may, on application, at any time extend the appeal period that would otherwise apply.
1. The Federal Court has jurisdiction to hear and determine an appeal made to it under clause 167. The jurisdiction may be exercised by the Federal Court constituted as a single judge or as a Full Court: see section 14 of the Federal Court of Australia Act 1976.
2. The Federal Court must hear and determine the appeal and may make whatever order it thinks appropriate. This could be an order affirming or setting aside a decision of the Tribunal, or an order remitting the matter to be reviewed and decided again either with or without taking further evidence.
3. If the Federal Court remits the matter to be reviewed and decided again by the Tribunal, the Tribunal may be differently constituted from the Tribunal that made the decision to which the appeal to the Federal Court relates. If the matter involved a first-tier review, the remitted review would likewise be a first-tier review. Similarly, if the matter involved a second-tier review, the remitted review would be a second-tier review.
1. Appeals under clause 167 which are pending in the Federal Court may be transferred by the Federal Court to the Federal Magistrates Court either on its own initiative or on the application of a party to the appeal. The decision of the Federal Court to transfer an appeal is not, itself, appealable. The clause gives the Federal Magistrates Court jurisdiction to hear and determine such transferred appeals.
2. Federal Court Rules can make provision in respect of these transfers but, before they are made, the Federal Court must consult the Federal Magistrates Court.
3. In deciding whether to transfer an appeal, the Federal Court must have regard to certain matters.
4. If an appeal is transferred to the Federal Magistrates Court, subclauses 169(3) and (4) apply in relation to the hearing and determination of the appeal.
1. Subject to some things specified in this clause, the making of an appeal to the Federal Court from a Tribunal decision does not affect the operation of the decision of the Tribunal or prevent action being taken on the decision.
2. Where an appeal is made to the Federal Court from a first- or second-tier decision, or an appeal of such a kind is transferred to the Federal Magistrates Court, the Federal Court or a Federal Court Judge, or the Federal Magistrates Court or a Federal Magistrate, may make certain orders to ensure the effectiveness of the hearing and determination of the appeal.
3. If an order of the kind mentioned in this clause is in force, it can be varied or revoked by a further order on any number of occasions. An order is subject to whatever conditions are specified in the order and has effect for a period specified in the clause.
4. The Federal Court or the Federal Magistrates Court has the power to stay or otherwise affect the operation or implementation of
• the original decision;
• the Tribunal’s first-tier decision; or
• if applicable, the Tribunal’s second-tier decision.
5. The power to stay the Tribunal decision that is subject to the appeal will not always be sufficient to achieve a particular result. For example, it might be necessary to stay both the Tribunal’s first- and second-tier decisions in order to ‘revive’ the original decision while that stay is in force. In other circumstances, depending on the nature of the Tribunal’s decision at first- and second-tier, only a stay of the original decision would achieve a particular result. Accordingly, the Bill gives the Federal Court and the Federal Magistrates Court broad stay powers.
1. Division 3 of Part 10 provides for the reference of questions of law by the Tribunal to the Federal Court.
1. With the President’s agreement, the Tribunal can refer to the Federal Court a question of law that arises in a review by the Tribunal. The reference can be made of the Tribunal’s own motion or at the request of a participant.
2. If:
• the Attorney-General of the Commonwealth informs the Tribunal that answering a question would be contrary to the public interest because the disclosure:
− would prejudice the security, defence or international relations of the Commonwealth; or
− would involve the disclosure of deliberations or decisions of the Cabinet, or of a Cabinet Committee;
or if:
• the Attorney-General of a State or of the Australian Capital Territory or the Northern Territory informs the Tribunal that answering a question would be contrary to the public interest because it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Cabinet Committee, of the State or Territory;
then the Tribunal may of its own motion, or at the request of a participant, refer to the Federal Court for decision the question of law whether answering the question would be contrary to the public interest.
3. Once a question of law has been referred to the Federal Court, the Tribunal is not permitted to give a decision to which the question is relevant while the reference is pending or to proceed in a manner or make a decision that is inconsistent with the opinion of the Federal Court on the question.
4. The clause gives the Federal Court jurisdiction to hear and determine a question of law referred to it.
5. The President cannot delegate his or her powers or functions under subclause 172(2): see subclause 50(2).
1. Division 4 of Part 10 provides for the sending of documents from the Tribunal to the Federal Court and the Federal Magistrates Court, and the circumstances in which those courts can disclose certain of those documents.
1. If an appeal is made to the Federal Court in accordance with clause 167, or if a question of law is referred to the Federal Court in accordance with clause 172, then the provisions of this clause will operate.
2. In either of these cases, the Tribunal must send certain documents to the Federal Court. This is despite the operation of clause 101(5), which requires the Tribunal to do all that is necessary to ensure that information etc. that is the subject of a certificate given under clause 101 by the Commonwealth or a State or Territory Attorney-General is not disclosed other than to a member of the Tribunal reviewing the relevant decision.
3. The Federal Court is required to return the documents to the Tribunal at the conclusion of proceedings before it, except in cases of appeals that are transferred to the Federal Magistrates Court where the requirement is upon the latter court. When an appeal is transferred to the Federal Magistrates Court, the Federal Court must send the documents to that Court.
4. The Federal Court and the Federal Magistrates Court must do all that is necessary to protect certain information from disclosure to persons other than a member of the Court as constituted for the purposes of the proceeding. That is information etc. in respect of which a certificate is in force under subclause 60(1) or 101(1) stating that disclosure would be contrary to the public interest. However, if:
• the Federal Court or the Federal Magistrates Court is deciding the question whether matter contained in a document to which a certificate mentioned in subclause (5) relates should be disclosed to any or all participants in the review by the Tribunal; and
• the certificate does not specify certain reasons for non-disclosure, namely:
− disclosure would prejudice the security, defence or international relations of Australia (paragraphs 60(1)(a) and 101(2)(a));
− disclosure would involve the disclosure of deliberations of the Cabinet or of a committee of the Cabinet (paragraphs 60(1)(b) and 101(2)(b)); or
− disclosure would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of a State or Territory (paragraph 101(3)(a)); and
• the Court decides that the matter should be disclosed;
the Court must permit the relevant part of the document to be inspected.
5. This clause does not prevent the disclosure of certain information or matter to an officer of the Federal Court or the Federal Magistrates Court in the performance of their duties.
1. Part 11 makes provision for the Administrative Review Council.
1. Division 1 of Part 11 makes provision for the establishment and membership of the Council.
1. The Administrative Review Tribunal (Consequential and Transitional Provisions) Bill 2000 will make clear that the Administrative Review Council established by this clause is the same entity as that which was established by section 48 of the Administrative Appeals Tribunal Act 1975.
1. The Council consists of the President of the Tribunal, the Commonwealth Ombudsman, the President of the Australian Law Reform Commission and not fewer than 3 or more than 10 other members or any higher number of members prescribed by the regulations. Clause 183 provides that one of the Council members is to be the President of the Council.
1. Division 2 of Part 11 sets out the functions of the Council.
1. The principal function of the Council is to keep the Commonwealth administrative law system under review and to monitor developments in administrative law and make recommendations to the Attorney-General about improvements that might be made to the system.
2. The functions of the Council also include:
• inquiring into the adequacy of certain procedures for exercising discretions and making decisions, and consulting and advising on such procedures so as to ensure that discretions are exercised and decisions are made in a just and equitable manner;
• ascertaining and keeping under review the classes of administrative decisions not subject to review and making recommendations to the Attorney-General about whether such classes of decisions should be subject to review and, if so, by what court, tribunal or other body;
• inquiring into the adequacy of the law and practice relating to review by the courts of administrative decisions and making recommendations to the Attorney-General as to any improvements that could be made in that law and practice;
• inquiring into certain matters relating to the qualifications of certain persons engaged in the review of administrative decisions, inquiring into the extent of jurisdiction to review administrative decisions conferred on certain decision-makers, and inquiring into the adequacy of procedures used by certain decision-makers in the exercise of that jurisdiction, and consulting and advising persons about procedures and recommending improvements to the Attorney-General;
• making recommendations to the Attorney-General as to the manner in which administrative review tribunals should be constituted;
• making recommendations to the Attorney-General as to the desirability of the Administrative Review Tribunal reviewing administrative decisions presently reviewed by some other review tribunal;
• facilitating training in exercising administrative discretions or making administrative decisions;
• promoting knowledge about the Commonwealth administrative law system; and
• considering and reporting to the Attorney-General on matters referred to the Council by the Attorney-General.
3. The clause also explains that, in Part 11, references to administrative decisions and administrative discretions include references to non-statutory decisions and discretions.
1. The performance of the Council’s functions is not affected just because:
• there is a vacancy in the office of an ex-officio member; or
• the number of appointed Council members falls below 3 for not more than 3 months.
1. This clause makes provision with respect to meetings of the Council.
1. The Attorney-General may give directions to the Council about the performance of its functions which the Council must comply with.
1. The Attorney-General may refer matters to the Council for inquiry and report.
1. The Council must prepare reports on matters relating to a project in respect of which the Council has determined that a report is to be prepared or in respect of a matter referred to the Council by the Attorney-General. Such reports are to be given to the Attorney-General who must cause a copy to be tabled in each House of Parliament as soon as practicable.
1. Division 3 of Part 11 provides for the appointment of ‘appointed Council members’.
1. Council members mentioned in paragraph 175(d) (‘appointed Council members’—members who do not automatically become members because they hold certain other Commonwealth offices) are to be appointed by the Governor-General by written instrument.
1. One Council member is to be appointed by the Governor-General as the President.
1. This clause sets out the qualifications that a person must have to be appointed as a Council member mentioned in paragraph 175(d).
1. Division 4 of Part 11 provides for the terms and conditions of ‘appointed Council members’.
1. Appointed Council members are to be appointed on a part-time basis.
1. Subject to this Division, an appointed Council member holds office for the period specified in his or her instrument of appointment. The period cannot exceed 3 years. An appointed Council member may be reappointed for a further term or terms: see section 33(4A) of the Acts Interpretation Act 1901.
1. An instrument appointing a Council member may state that the member is appointed primarily for the purpose of taking part in a specified project. If a statement is made to that effect, the person is to take part in that project but in all other respects is to be treated as if he or she were an ordinary appointed Council member.
2. The appointment of a person to take part in a specified project ceases when the President of the Council certifies that the Council has finished the project, unless it has already ceased or been terminated under subclause 190(1). This provision is intended to give the Council flexibility in taking on extra members as the need arises, and to allow for those extra members to be exclusively assigned to particular projects.
1. An appointed Council member is to be paid the remuneration that is determined by the Remuneration Tribunal or, if there is no determination in force, as prescribed by the regulations. An appointed Council member is also to be paid the allowances that are prescribed by the regulations. The clause is expressed to be subject to the Remuneration Tribunal Act 1973.
1. The Attorney-General may grant an appointed Council member leave of absence on terms and conditions determined by the Attorney-General.
1. The Governor-General may terminate at any time the appointment of an appointed Council member who was appointed to take part in a specified project.
2. The Governor-General may terminate the appointment of any other appointed Council member on the ground of misbehaviour or physical or mental incapacity or if the member is absent without leave from 3 consecutive meetings of the Council.
1. An appointed Council member may resign in writing given to the Governor-General.
1. Division 5 of Part 11 makes provision for the staff of the Council.
1. Staff of the Council are to be persons engaged under the Public Service Act 1999.
1. Division 6 of Part 11 deals with the annual reporting obligations of the Council.
1. The President of the Council must prepare an annual report on the operations of the Council. The Attorney-General must arrange for a copy of the report to be tabled in each House of Parliament.
1. Part 12 contains a regulation-making power.
1. This clause allows regulations to be made which are required or permitted to be prescribed by the Bill or which are necessary or convenient to be prescribed for carrying out or giving effect to the Bill.
2. Without limiting the breadth of the general regulation-making power, the clause provides that the regulations may make provision for the prescribing of fees to be paid in relation to applications made to the Tribunal, waiver and refunds of fees, and prescribing fees in relation to the taxation of costs ordered by the Tribunal to be paid.
3. Different fees could be prescribed for different classes of applications,
whether they are reviewed in different Divisions or in the same Division: see
section 33(3A) of the Acts Interpretation Act 1901.