Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
"ACC" means the Australian Crime Commission established under section 7 of the Australian Crime Commission Act 2002 .
"ACMA" means the Australian Communications and Media Authority.
"ACT enactment" means an enactment as defined by section 3 of the Australian Capital Territory (Self-Government) Act 1988 .
"AFP appointee" has the same meaning as in the Australian Federal Police Act 1979 .
"AFP Commissioner" means the Commissioner within the meaning of the Australian Federal Police Act 1979 .
"AFP conduct issue" has the same meaning as in the Australian Federal Police Act 1979 .
"AFP practices issue" has the same meaning as in the Australian Federal Police Act 1979 .
"Australia Post" means the Australian Postal Corporation.
(a) a person appointed by the Ombudsman to be an authorized person for the purposes of this Act; or
(b) a person included in a class of persons appointed by the Ombudsman to be authorized persons for the purposes of this Act.
"Board of the ACC" means the Board of the Australian Crime Commission established under section 7B of the Australian Crime Commission Act 2002 .
"case manager" has the same meaning as in the Employment Services Act 1994 .
"chief executive officer of a court or tribunal" means the person holding, or performing the duties of, one of the following offices:
(a) Clerk of the High Court;
(b) Registrar of the Federal Court of Australia;
(c) Chief Executive Officer of the Family Court of Australia;
(ca) Chief Executive Officer of the Federal Magistrates Court;
(d) Registrar of the Administrative Appeals Tribunal;
(e) an office declared by the regulations to be an office of chief executive officer of a court or tribunal for the purposes of this Act;
(f) an office prescribed by the regulations in lieu of an office referred to in paragraph (a), (b), (c), (ca) or (d).
"Commonwealth-controlled company" means an incorporated company in which the Commonwealth has an interest that enables the Commonwealth:
(a) to control the composition of the board of directors of the company; or
(b) to cast, or control the casting of, more than one‑half of the maximum number of votes that might be cast at a general meeting of the company; or
(c) to control more than one‑half of the issued share capital of the company (excluding any part of that share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital).
"Commonwealth service provider" has the meaning given by section 3BA.
"Department" means a Department within the meaning of the Public Service Act 1999 , but does not include the branch of the Australian Public Service comprising the transitional staff as defined by section 3 of the A.C.T. Self-Government (Consequential Provisions) Act 1988 .
"Deputy Ombudsman" means a Deputy Commonwealth Ombudsman.
"Deputy Ombudsman (Defence Force)" means the Deputy Ombudsman who is, by virtue of a notice under subsection 23(1) that is in force, designated as the Deputy Ombudsman (Defence Force).
"eligible case manager" means an entity (within the meaning of the Employment Services Act 1994 ):
(a) that is, or has at any time been, a contracted case manager within the meaning of that Act; and
(b) that is not:
(i) a Department; or
(ii) covered by paragraph (a), (b), (ba), (bb), (c) or (d) of the definition of prescribed authority .
"enactment" means, subject to section 3B:
(a) an Act;
(b) an Ordinance of the Australian Capital Territory;
(c) an Ordinance of the Territory of Christmas Island or of the Territory of Cocos (Keeling) Islands;
(d) an instrument made under an Act or under an Ordinance referred to in paragraph (b) or (c); or
(e) a law (not being an Act, an Ordinance referred to in paragraph (c) or an instrument referred to in paragraph (d)) in force in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands;
but does not include the Norfolk Island Act 1979 , the Northern Territory (Self‑Government) Act 1978 or an enactment of Norfolk Island or of the Northern Territory.
"enactment of Norfolk Island" means:
(a) a law or Ordinance referred to in paragraph (a), (b) or (c) of the definition of enactment in subsection 4(1) of the Norfolk Island Act 1979 ; or
(b) an instrument (including rules, regulations or by‑laws) made under such a law or Ordinance.
"enactment of the Northern Territory" means:
(a) a law or Ordinance referred to in paragraph (a) or (b) of the definition of enactment in subsection 4(1) of the Northern Territory (Self‑Government) Act 1978 ; or
(b) an instrument (including rules, regulations or by‑laws) made under such a law or Ordinance.
"ESRA" means the Employment Services Regulatory Authority established under the Employment Services Act 1994 .
"law enforcement agency" has the same meaning as in the Australian Crime Commission Act 2002 .
(a) in relation to a Department:
(i) a person (including the principal officer of the Department) employed, whether in a permanent or temporary capacity, in the Department; or
(ii) any other person (not being a Minister) authorized to exercise powers or perform functions of the Department on behalf of the Department; or
(b) in relation to a prescribed authority (other than an eligible case manager):
(i) the person who constitutes, or is acting as the person who constitutes, the authority;
(ii) a person who is, or is acting as, a member of the authority or is a deputy of such a member;
(iii) a person who is employed in the service of, or is a member of the staff of, the authority, whether or not he or she is employed by the authority; or
(iv) a person authorized by the authority to exercise any powers or perform any functions of the authority on behalf of the authority; or
(c) in relation to a prescribed authority that is an eligible case manager:
(i) if the eligible case manager is an individual--the individual; or
(ii) if the eligible case manager is a body corporate--a director, the secretary or an employee of the body corporate; or
(iii) if the eligible case manager is a partnership--a partner in, or an employee of, the partnership; or
(iv) if the eligible case manager is an unincorporated association--a member of the executive committee, or an employee, of the unincorporated association; or
(v) in any other case--an officer or employee of the eligible case manager.
Note: For the meaning of officer for the purposes of Part IIB, see section 19G.
"Ombudsman" means the Commonwealth Ombudsman.
"ombudsman scheme" means a scheme providing for the investigation of complaints by consumers about matters relating to decisions or actions of the holders of licences or authorities granted under an enactment.
"Ordinance" , in relation to the Australian Capital Territory, includes a law of a State that applies, or the provisions of a law of a State that apply, in the Territory by virtue of an enactment (other than a law that is, or provisions that are, an ACT enactment).
"Parliamentary Department" means:
(a) the Department of the Senate; or
(b) the Department of the House of Representatives; or
(c) the Department of the Parliamentary Library; or
(d) the Department of the Parliamentary Reporting Staff; or
(e) the Joint House Department.
"postal or similar service" includes:
(a) a postal service; and
(b) a courier service; and
(c) a packet or parcel carrying service.
"PPO (short for Private Postal Operator) " means an entity (other than Australia Post) that provides a postal or similar service, whether or not that entity also provides other services.
(a) a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an enactment, other than:
(i) an incorporated company or association;
(ii) a body that has the power to take evidence on oath or affirmation and is required, or is expressly permitted, by an enactment to be constituted by, or to include among its members, a person who is a Justice or Judge of a court created by the Parliament or a person who has, by virtue of an Act, the same status as a Justice or Judge of such a court;
(iii) a body that, under subsection (2) or the regulations, is not to be taken to be a prescribed authority for the purposes of this Act; and
(v) a Royal Commission; or
(b) a Commonwealth‑controlled company that is a prescribed authority by virtue of section 3A; or
(ba) a body corporate, or an unincorporated body, established by the Governor‑General or by a Minister and declared by the regulations to be a prescribed authority; or
(bb) a chief executive officer of a court or tribunal; or
(c) the person holding, or performing the duties of, an office established by an enactment, other than:
(i) the chief executive officer of a court or tribunal or a person who, for the purposes of this Act, is to be taken to be a member of the staff of the chief executive officer of a court or tribunal; or
(ii) a person who, under subsection (3) or the regulations, is not to be taken to be a prescribed authority for the purposes of this Act; or
(d) the person performing the duties of an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act, being an appointment made by the Governor‑General, or by a Minister, otherwise than under an enactment; or
(e) an eligible case manager.
(a) in relation to a Department of the Australian Public Service--the person holding, or performing the duties of, the office of Secretary of the Department; or
(c) in relation to a prescribed authority (other than an eligible case manager):
(i) if the regulations declare an office to be the principal office in respect of the authority--the person holding, or performing the duties of, that office; or
(ii) in any other case--the person who constitutes, or is acting as the person who constitutes, that authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present; or
(d) in relation to a prescribed authority that is an eligible case manager:
(i) if the eligible case manager is an individual--the individual; or
(ii) in any other case--the individual primarily responsible for the management of the eligible case manager.
Note: For the meaning of principal officer for the purposes of Part IIB, see section 19G.
"registered PPO" means a PPO that is registered for the purposes of Part IIB (see section 19ZA).
Note: In certain circumstances, a PPO that is no longer registered for the purposes of Part IIB may still be treated as a registered PPO (see section 19J).
"responsible Minister" , in relation to a matter, or to action taken in or in relation to a matter, means:
(a) if a Department of the Australian Public Service is responsible for dealing with the matter--the Minister administering that Department; or
(c) if a prescribed authority referred to in paragraph (a) of the definition of prescribed authority is responsible for dealing with the matter--the Minister administering the enactment by which, or in accordance with the provisions of which, the prescribed authority is established; or
(d) if a prescribed authority referred to in paragraph (c) of that definition is responsible for dealing with the matter--the Minister administering the enactment by which the office is established; or
(da) if a prescribed authority referred to in paragraph (e) of that definition is responsible for dealing with the matter--the Minister administering the Employment Services Act 1994 ; or
(e) if any other prescribed authority is responsible for dealing with the matter--the Minister declared by the regulations to be the responsible Minister in respect of that authority;
or another Minister acting for and on behalf of that Minister.
"Secretary" , in relation to a Department, means the person who is the Secretary of the Department for the purposes of the Public Service Act 1999 .
(2) An unincorporated body, being a board, council, committee, sub‑committee or other body established by, or in accordance with the provisions of, an enactment for the purpose of assisting, or performing functions connected with, a prescribed authority shall not be taken to be a prescribed authority for the purpose of this Act, but action taken by the body, or by a person on its behalf, shall, for the purpose of this Act, be deemed to have been taken by that prescribed authority.
(3) A person shall not be taken to be a prescribed authority by virtue of holding, or performing the duties of:
(a) an office whose duties the person performs as duties of employment as an officer or employee of a Department or as a member of the staff of a prescribed authority;
(b) an office of member of a body; or
(c) an office established by an enactment for the purposes of a prescribed authority;
but any action taken by or on behalf of a person holding, or performing the duties of, such an office shall, for the purposes of this Act, be deemed to have been taken by the Department, body or authority concerned.
(4) Where:
(a) a person who is not an officer of a Department, or of a prescribed authority, for the purposes of this Act takes action in the exercise of a power or the performance of a function that the person is authorized to exercise or to perform, as the case may be, by reason of his or her holding an appointment made by, or by reason of authority given by, the Governor‑General, a Minister or the Secretary of a Department; and
(b) the person does not exercise the power or perform the function by reason of his or her holding, or performing the duties of, an office established by, or in accordance with the provisions of, an enactment or by reason of his or her being a Judge of a court of, or a magistrate of, a State or Territory;
the action shall be deemed to be taken, for the purposes of this Act, by the Department responsible for dealing with the matter in connection with which the action is taken.
(4A) Notwithstanding subsection (4), where a person is authorized to exercise a power or perform a function by reason of his or her holding an appointment made by, or by reason of authority given by, the Governor‑General, a Minister or the Secretary of a Department otherwise than under an enactment, the regulations may provide that action taken by the person in the exercise of that power or the performance of that function shall not be deemed to be taken, for the purposes of this Act, by the Department responsible for dealing with the matter in connection with which the action is taken.
(4B) For the purposes of this Act, if:
(a) a person is not an officer of a Department or prescribed authority; and
(b) the person is, or is an employee of, a Commonwealth service provider of the Department or prescribed authority under a contract; and
(c) for the purposes of the contract, the person takes action in the exercise of a power or the performance of a function for or on behalf of the Department or prescribed authority; and
(d) the person does not exercise the power or perform the function by reason of:
(i) his or her holding, or performing the duties of, an office established by, or in accordance with the provisions of, an enactment; or
(ii) his or her being a Judge of a court of, or a magistrate of, a State or Territory; and
(e) the regulations do not otherwise provide;
the action is taken to be action taken by the Department or prescribed authority.
(5) For the purposes of this Act, action that is taken by an officer of a Department shall be deemed to be taken by the Department:
(a) if the officer takes, or purports to take, the action by virtue of his or her being an officer of the Department, whether or not:
(i) the action is taken for or in connexion with, or as incidental to, the performance of the functions of the Department; or
(ii) the taking of the action is within the duties of the officer; or
(b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on him or her by an enactment.
(5A) Notwithstanding subsection (5), where the person holding, or performing the duties of, an office established by an enactment is, under the regulations, not to be taken to be a prescribed authority for the purposes of this Act, the regulations may also provide that action taken by an officer of a Department, being action in the furtherance of the duties of that office, shall, for the purposes of this Act, be deemed not to be action taken by that Department.
(6) For the purposes of this Act, action that is taken by an officer of a prescribed authority shall be deemed to be taken by the authority:
(a) if the officer takes, or purports to take, the action by virtue of his or her being an officer of the authority, whether or not:
(i) the action is taken for or in connexion with, or as incidental to, the performance of the functions of the prescribed authority; or
(ii) the taking of the action is within the duties of the officer; or
(b) if the officer takes, or purports to take, the action in the exercise of powers or the performance of functions conferred on him or her by an enactment.
(6A) For the purposes of this Act, action that is taken by a member of the Defence Force shall be deemed to be taken by the Defence Force if the member takes, or purports to take, the action by virtue of his or her being a member of the Defence Force, whether or not:
(a) the action is taken in connection with, in the course of, or as incidental to, his or her service as a member of the Defence Force; or
(b) the taking of the action is within his or her duties as a member of the Defence Force.
(6B) Action taken by any person or persons by way of, or in connection with, the appointment of a person to be the Chief of the Defence Force, the Chief of Navy, the Chief of Army or the Chief of Air Force is not action taken by the Defence Force or by a Department for the purposes of this Act.
(6C) In this Act (other than subsection (6A)), unless the contrary intention appears, a reference to a member of the Defence Force or of an arm or part of the Defence Force includes a reference to:
(a) a person who has been a member of the Defence Force or of that arm or part of the Defence Force; or
(b) a deceased person who was at any time before his or her death a member of the Defence Force or of that arm or part of the Defence Force.
(6D) For the purposes of this Act, action that is taken by an officer of a registered PPO is taken to have been taken by the registered PPO if the officer takes, or purports to take, the action because he or she is an officer of the registered PPO, whether or not:
(a) the action is taken for or in connection with, or as incidental to, the provision of a postal or similar service by the registered PPO; or
(b) the taking of the action is within the duties of the officer.
(7) In this Act, unless the contrary intention appears, a reference to the taking of action includes a reference to:
(a) the making of a decision or recommendation;
(b) the formulation of a proposal; and
(c) failure or refusal to take any action, to make a decision or recommendation or to formulate a proposal.
(7A) In this Act, unless the contrary intention appears, a reference to the Ombudsman of a State shall be read as a reference to a person performing, under a law of the State, functions similar to the functions performed by the Ombudsman.
(7B) For the purposes of a provision of this Act (other than this subsection) in which a reference to the Ombudsman of a State occurs:
(a) a reference to a State, in relation to the Ombudsman of a State, shall be read as including a reference to the Australian Capital Territory and a reference to the Northern Territory;
(b) a reference to a law of a State, in relation to the Ombudsman of a State, shall be read as including a reference to an ACT enactment and a reference to an enactment of the Northern Territory; and
(c) a reference to a Department or authority of a State, in relation to the Ombudsman of a State, shall be read as including a reference to:
(i) the Australian Capital Territory; or
(ii) a Territory authority as defined by section 3 of the Australian Capital Territory (Self‑Government) Act 1988 ;
as the case requires.
(8) A reference in this Act to the international relations of the Commonwealth is a reference to the relations of the Commonwealth with the Government of another country or with an international organization.
(9) For the purposes of this Act, the Australian Federal Police shall be deemed to be a prescribed authority.
(10) In the application of this Act in relation to the Australian Federal Police, references in this Act to an officer of a prescribed authority shall be read as references to an AFP appointee.
(11) For the purposes of this Act (other than subsection (6)), the Defence Force shall be deemed to be a prescribed authority.
(12) In the application of this Act in relation to the Defence Force:
(a) references in this Act to an officer of a prescribed authority shall be read as references to a member of the Defence Force;
(b) references in this Act to the principal officer of a prescribed authority shall be read as references to the Chief of the Defence Force; and
(c) references in this Act to the responsible Minister, in relation to a matter in relation to a prescribed authority, or in relation to action taken by a prescribed authority in or in relation to a matter, shall be read as references to the Minister for Defence or another Minister acting for and on behalf of the Minister for Defence.
(13) For the purposes of this Act, any matter (including a report) concerning both the Defence Force and the Department of Defence may, by arrangement between the Defence Force Ombudsman, the Chief of the Defence Force and the principal officer of the Department of Defence, be communicated by the Defence Force Ombudsman to either the Chief of the Defence Force or the principal officer of that Department.
(13A) For the purposes of this Act, the ACC is taken to be a prescribed authority.
(14) For the purposes of this Act:
(a) the officers (other than the chief executive officer) of a court or tribunal; and
(b) the members of the staff of the registry or registries of a court or tribunal; and
(c) officers or employees of a Department, or of an authority of the Commonwealth, whose services are made available to a court or tribunal; and
(d) persons declared by the regulations to be members of the staff of a court or tribunal for the purposes of this Act;
are to be taken to be members of the staff of the chief executive officer of the court or tribunal.
(15) A reference in this section to an officer of a court or tribunal does not include a judge of a court or a member of a tribunal.
(16) In relation to anything that concerns:
(a) a chief executive officer of a court or tribunal; or
(b) a Parliamentary Department;
a reference to which this subsection applies has effect in accordance with subsection (18).
(17) Subsection (16) applies to the following references:
(a) a reference in any of the following provisions to the responsible Minister:
(i) paragraph 8(7A)(b);
(ii) subsections 8(8) and (9);
(iii) paragraph 8(10)(c);
(iv) subsection 11A(5);
(v) subparagraphs 35(3)(b)(i) and (ia);
(b) the reference in paragraph 8(10)(a) to the Minister administering a Department;
(c) the reference in subsection 15(6) to the Minister concerned.
(18) A reference to which subsection (16) applies is to be read as follows:
(a) in the case of the chief executive officer of a court, the reference is to be read as a reference to the chief justice or chief judge (however described) of the court;
(b) in the case of the Registrar of the Administrative Appeals Tribunal, the reference is to be read as a reference to the President of the Administrative Appeals Tribunal;
(c) in the case of the chief executive officer of a tribunal other than the Administrative Appeals Tribunal, the reference is to be read as a reference to the president or principal member (however described) of the tribunal or, if the tribunal consists of a single member, as a reference to that member;
(d) in the case of the Department of the Senate, the reference is to be read as a reference to the President of the Senate;
(e) in the case of the Department of the House of Representatives, the reference is to be read as a reference to the Speaker;
(f) in the case of any other Parliamentary Department, the reference is to be read as a reference to the President of the Senate and the Speaker.
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