ADMINISTRATIVE APPEALS TRIBUNAL REGULATIONS (AMENDMENT) 1993 NO. 326

ADMINISTRATIVE APPEALS TRIBUNAL REGULATIONS (AMENDMENT) 1993 NO. 326

STATUTORY RULES 1993 No. 326

Issued by the Authority of the Attorney-General

Administrative Appeals Tribunal Act 1975

Administrative Appeals Tribunal Regulations (Amendment)

Section 70 of the Administrative Appeals Tribunal Act 1975 (the Act) empowers the Governor-General to make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Subsection 27A(1) of the Act requires a person who makes a reviewable decision to take all reasonable steps to give any person whose interests are affected by the decision notice of the making of the decision and of the right to have the decision reviewed.

At the time the Act was amended to include subsection 27A(1), it was recognised that the requirements of that subsection would present the Australian Securities Commission ('ASC') with the difficult practical problem of identifying all of the persons who are affected by its more broad ranging decisions. In many instances such persons include the relevant company and its directors, shareholders and creditors. This difficulty is magnified by both the broad array of ASC decisions that are subject to review and the high volume of decisions made each year.

Thus, to allow a period for further consideration of the ramifications for the ASC of the introduction of the new legislative requirement in subsection 27A(1), decisions of the ASC or its delegate made under the Corporations Law were exempted from the requirements of subsection 27A(1) for a period of six months, by paragraph 27A(2)(d) of the Act. Paragraph 27A(2)(e) of the Act also made provision for the continuation of the exemption of ASC decisions in the regulations. The existing exemption will expire on 10 December 1993.

The Administrative Review Council, in conjunction with the ASC and the Attorney-General's Department has, in the interim, undertaken a thorough examination of all decisions of the ASC to assess the extent to which permanent exemption from the notification of decision and review rights requirements may be justified.

The regulations implement the results of that examination by:

1.       declaring, pursuant to paragraph 27A(2)(e) of the Act, that subsection 27A(1) of the Act does not apply to decisions made by the ASC to which section 1317B of the Corporations Law applies; and

2.       providing a modified regime for the notification of persons affected by ASC decisions to which section 1317B applies, of their rights of review under the Act.

Details of the regulations are at Attachment A.

ATTACHMENT A

ADMINISTRATIVE APPEALS TRIBUNAL REGULATIONS (AMENDMENT)

Regulation 1

Commencement

As the existing exemption of decisions of the ASC or its delegate made under the Corporations Law from the requirements of subsection 27A(1) of the Act, provided by paragraph 27A(2)(d) of the Act, will expire on 10 December 1993, these regulations will commence on 11 December 1993.

Regulation 2

Amendment

Subregulation 2.1 provides that the Administrative Appeals Tribunal Regulations ('the Regulations') will be amended as set out in these regulations.

Regulation 3

New regulation 5C - Application of the Act to decisions of the Australian Securities Commission

Subregulation 3.1 inserts new regulation 5C.

New subregulation 5C(1) defines the terms "relevant decision" and "the Commission". "Relevant decision" means a decision of the ASC that, pursuant to section 1317B of the Corporations Law, may be reviewed by the Tribunal and that is made on or after 11 December 1993. A reference to "the Commission" in these regulations is to be taken to include a reference to a delegate of the ASC.

New subregulation 5C(2) continues the existing exemption of relevant decisions from the requirements of subsection 27A(1) of the Act.

New subregulations 5C(3) to (7) inclusive, however, implement a modified regime for the notification of persons affected by relevant decisions, of their rights of review of those decisions under the Act.

New subregulation 5C(3) sets out the general principle that, where the ASC makes a relevant decision, it must take steps that are reasonable in the circumstances to give any person whose interests are affected by the decision, notice in accordance with new subregulation 5C(4).

That notice must tell the person to whom it is given of the making of the decision and of that person's right to have the decision reviewed under the Act (new subregulation 5C(4)). The notice may be in writing or otherwise.

New subregulation 5C(5), however, provides for an exemption to that general principle in certain circumstances. Thus the ASC will not be required to give notice to a person whose interests are affected by a relevant decision if the ASC considers that, having regard to the cost of giving the notice and the manner in which the person's interests are affected, it is not reasonably practicable to do so.

The combined result of new subregulations 5C(3) to (5) inclusive will be that the ASC will be required to give the requisite notice to persons most directly affected by relevant decisions, but will not be required to give notice to persons who are only remotely affected by a decision, if the cost of giving notice to those persons would mean that it is not reasonably practicable for the ASC to do so.

New subregulation 5C(6) provides that failure of the ASC to notify a person whose interests are affected by a relevant decision of his or her review rights, will not affect the validity of that decision.

New subregulation 5C(7) provides that, in determining under subsection 29(6) of the Act whether or not there are special circumstances that justify it entertaining an application for review, the Tribunal must have regard to any absence of notice by the ASC to the applicant of his or her review rights.