Commonwealth Numbered Acts

LAW AND JUSTICE LEGISLATION AMENDMENT ACT 1993 No. 13 of 1994 - SECT 14

14. Divisions 3 and 4 of Part V of the Principal Act are repealed and the
following Divisions are substituted:

"Division 3-Registration of determinations in Federal Court Registration of
determination

"54.(1) This section applies to a determination made under section 52, except
where the respondent is an agency or the principal executive of an agency.

"(2) As soon as practicable after the determination is made, the Commissioner
must lodge the determination in a Registry of the Federal Court.

"(3) Upon lodgment of the determination, a Registrar must register the
determination. In this subsection, 'Registrar' has the same meaning as in
section 35A of the Federal Court of Australia Act 1976.

"(4) Within 7 days after the determination is registered, the Commissioner
must give written notice of the registration to the complainant and respondent
to the determination. The notice must specify the date of registration and
must include a copy of the determination. Registered determination has effect
as an order of the Federal Court

"55.(1) Upon registration of a determination under section 54, the
determination has effect as if it were an order made by the Federal Court, but
subject to the following provisions.

"(2) In addition to binding the complainant and respondent to the
determination, the determination applies as follows to each class member who
is described or identified in the determination as mentioned in section 53:

   (a)  the class member is bound by the determination; and

   (b)  the class member may take action to enforce the determination.

"(3) No action to enforce the determination may be taken before the end of the
normal application and review period.

"(4) A failure by the respondent, during the normal application and review
period, to comply with a positive requirement of the determination is not a
contravention of the determination.

"(5) The respondent to a registered determination may apply to the Federal
Court for review of the determination.

"(6) Subject to subsection (7), the respondent's application for review must
be made before the end of 28 days after the day the determination is
registered.

"(7) After those 28 days, the respondent may apply for review only with the
leave of the Federal Court. The Court may grant leave only in exceptional
circumstances.

"(8) If the Court grants leave, it may make one or more of the following
orders:

   (a)  an order prohibiting action, or further action, to enforce the
        determination during a specified period ending no later than when
        proceedings on the review are completed or otherwise terminated;

   (b)  an order staying, for such a period, action to enforce the
        determination that has already begun;

   (c)  an order that failure to comply, during such a period, with specified
        positive requirements of the determination is not a contravention of
        the determination;

   (d)  an order that a past failure to comply, during such a period, with
        such requirements is taken never to have been such a contravention.

"(9) The Court may make an order under subsection (8):

   (a)  on such conditions, if any, as it thinks fit; and

   (b)  whether or not it also makes an order under subsection 56(3).

"(10) The Federal Court may vary or revoke an order under subsection (8).

"(11) In this section:
'normal application and review period' means the period starting when the
determination is registered and finishing:

   (a)  if the respondent applies in accordance with subsection (5) for a
        review of the determination-when proceedings on the review are
        completed or otherwise terminated; or

   (b)  in any other case-at the end of the 28th day after the day the
        determination is registered. Review of registered determination

"56.(1) This section applies if an application is made to the Federal Court
under section 55 for review of a determination.

"(2) The parties to the review are:

   (a)  the applicant; and

   (b)  the complainant to the determination, as respondent to the application
        for review.

"(3) The Court may at any time make an interim order that suspends the
operation of the whole or any part of the determination. The order may be made
on such conditions, if any, as the Court thinks fit.

"(4) In reviewing the determination, the Court may review all issues of fact
and law.

"(5) A party cannot adduce new evidence without the leave of the Court.

"(6) After reviewing the determination, the Court may make such orders as it
thinks fit (including a declaration of right). The orders may confirm a
determination that is registered under section 54.

"(7) The Court may dismiss the application for review at any time if it
considers that the applicant is not prosecuting the application with due
dispatch. The Court may do this either of its own motion or on the application
of the respondent.

"Division 4-Review and enforcement of determinations involving
Commonwealth agencies Application of Division

"57. This Division applies to a determination that is made under section 52
and has an agency, or the principal executive of an agency, as the respondent.
Obligations of respondent agency

"58. If an agency is the respondent to a determination to which this Division
applies:

   (a)  the agency must not repeat or continue conduct that is covered by a
        declaration included in the determination under subparagraph
        52(1)(b)(i); and

   (b)  the agency must perform the act or course of conduct that is covered
        by a declaration included in the determination under subparagraph
        52(1)(b)(ii). Obligations of principal executive of agency

"59. If the principal executive of an agency is the respondent to a
determination to which this Division applies, the principal executive must
take all such steps as are reasonably within his or her power to ensure:

   (a)  that the terms of the determination are brought to the notice of all
        members, officers and employees of the agency whose duties are such
        that they may engage in conduct of the kind to which the determination
        relates; and

   (b)  that no member, officer or employee of the agency repeats or continues
        conduct that is covered by a declaration included in the determination
        under subparagraph 52(1)(b)(i); and

   (c)  the performance of any act or course of conduct that is covered by a
        declaration included in the determination under subparagraph
        52(1)(b)(ii). Compensation and expenses

"60.(1) If a determination to which this Division applies includes a
declaration of the kind referred to in subparagraph 52(1)(b)(iii) or
subsection 52(3), the complainant is entitled to be paid the amount specified
in the declaration.

"(2) If the respondent is an agency that has the capacity to sue and be sued,
the amount is recoverable as a debt due by the agency to the complainant. In
any other case, the amount is recoverable as a debt due by the Commonwealth to
the complainant.

"(3) In this section:
'complainant', in relation to a representative complaint, means a class
member. Review of determinations regarding compensation and expenses

"61.(1) Application may be made to the Administrative Appeals Tribunal for
review of:

   (a)  a declaration of the kind referred to in subparagraph 52(1)(b)(iii) or
        subsection 52(3) that is included in a determination to which this
        Division applies; or

   (b)  a decision of the Commissioner refusing to include such a declaration
        in a determination to which this Division applies.

"(2) An agency, or the principal executive of an agency, may not apply for
review without the permission of the Minister.

"(3) In exercising powers in relation to an application under subsection (1),
the Tribunal must be constituted by a presidential member who is a Judge and 2
other members who are not Judges. This subsection has effect subject to
subsection 21(1A) of the Administrative Appeals Tribunal Act 1975.

"(4) Terms used in subsection (3) that are also used in the Administrative
Appeals Tribunal Act 1975 have the same meanings as in that Act. Enforcement
of determination against an agency

"62.(1) If an agency fails to comply with section 58, an application may be
made to the Federal Court for an order directing the agency to comply.

"(2) If the principal executive of an agency fails to comply with section 59,
an application may be made to the Federal Court for an order directing the
principal executive to comply.

"(3) The application may be made by the Commissioner or by the complainant. In
the case of a representative complaint, 'complainant' means a class member.

"(4) On an application under this section, the Federal Court may make such
other orders as it thinks fit with a view to securing compliance by the
respondent.

"(5) An application may not be made under this section in relation to a
determination under section 52 until:

   (a)  the time has expired for making an application under section 61 for
        review of the determination; or

   (b)  if such an application is made, the decision of the Administrative
        Appeals Tribunal on the application has come into operation.".