Administrative Review Tribunal Act 2024 (Cth)
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
This Act is the
Administrative Review Tribunal Act 2024 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the first day of the first calendar month to start after the end of that period. | 14 October 2024 (F2024N00804) | |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
A large number of Acts and legislative instruments allow people to apply to the Administrative Review Tribunal for review of decisions made under them. The Tribunal is established to review these decisions (known as reviewable decisions).
The Tribunal has a President, Deputy Presidents, senior members and general members. There is also a Principal Registrar and staff. This Act deals with their appointment, functions and terms and conditions.
This Act contains the standard provisions applying to Tribunal processes. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions.
Broadly, a Tribunal process for review of a reviewable decision includes the following stages:
(a) a person whose interests are affected by a reviewable decision applies to the Tribunal for review;
(b) the applicant, the decision‑maker and potentially other persons become parties to the proceeding for the review;
(c) the President constitutes the Tribunal for the purposes of the proceeding by deciding which member or members will exercise the Tribunal’s powers for the proceeding;
(d) the Tribunal conducts the proceeding, including obtaining evidence and holding hearings, directions hearings and dispute resolution processes;
(e) the Tribunal makes its decision.
Tribunal powers in relation to the proceeding are exercised by the Tribunal constituted for the purposes of the proceeding or, in some circumstances by the President or by members, the Principal Registrar, registrars and staff members authorised by the President.
The Tribunal reviews decisions on their merits. It may affirm, vary or set aside a decision‑maker’s decision. If the Tribunal sets aside a decision, it may make a substitute decision or remit the matter to the decision‑maker to reconsider as ordered or recommended by the Tribunal.
After the Tribunal makes its decision:
(a) in some circumstances, a party may apply to refer the matter to the guidance and appeals panel for another review; and
(b) a party may appeal to the Federal Court, on a question of law, from the Tribunal’s decision.
Special rules apply when the Tribunal’s powers in relation to a proceeding are exercised in the Intelligence and Security jurisdictional area. This occurs if the proceeding relates to an intelligence and security decision or the President otherwise directs (for example where the President is satisfied national security information would be involved).
There are requirements for decision‑makers in relation to giving notice of decisions and review rights and providing statements of reasons. These apply whether or not an application has been made to the Tribunal for review of the decision.
This Act also establishes the Administrative Review Council, with functions relating to the Commonwealth administrative law system. The Council consists of the President, the Commonwealth Ombudsman, the Australian Information Commissioner and other members appointed by the Governor‑General. This Act deals with the appointed members’ appointment, functions and terms and conditions.
In this Act:
accessible , in relation to the Tribunal, means enables persons to apply to the Tribunal and to participate effectively in proceedings in the Tribunal.Note: Examples of areas where arrangements may be made in relation to accessibility include the following:
(a) premises, facilities and technology;
(b) ease of locating and understanding information about the Tribunal and documents relating to proceedings;
(c) adjustments that can reasonably be made to accommodate a person’s needs, such as interpreter services for hearings.
adduce , in relation to evidence, includes give.
administrative affairs , in relation to the Tribunal, has a meaning affected by subsection 224(2).
AFP Commissioner means the Commissioner of Police (within the meaning of theAustralian Federal Police Act 1979 ).
agency head :
(a) in relation to a criminal intelligence assessment, means the Chief Executive Officer of the Australian Crime Commission; or
(b) in relation to an exempt security record decision that is a decision of a kind mentioned in subsection 57A(1) of the
Freedom of Information Act 1982 in respect of an exempt document (within the meaning of that Act), means the principal officer of the agency, or the Minister, to whom the request for access to the document concerned was made; or(c) in relation to an exempt security record decision that is a decision of the National Archives of Australia, means the Director‑General of the National Archives of Australia; or
(d) in relation to a foreign acquisitions and takeovers decision, means the Treasurer; or
(f) in relation to a security assessment, means the Director‑General of Security; or
(g) in relation to a security clearance decision, means the Director‑General of Security; or
(h) in relation to a security clearance suitability assessment, means the Director‑General of Security.
agency within the national intelligence community has the same meaning as in theOffice of National Intelligence Act 2018 .
appear , in relation to a Tribunal case event, has a meaning affected by section 73.
appointed member means a member of the Council mentioned in paragraph 247(1)(d).
ART social services decision : see subsection 131D(3).
ASIO means the Australian Security Intelligence Organisation.
ASIO Act means theAustralian Security Intelligence Organisation Act 1979 .
ASIO Minister means the Minister administering the ASIO Act.
authorised person , in relation to the performance or exercise of a function or power of the Tribunal, means a person authorised under Subdivision B of Division 4 of Part 11 to perform or exercise the function or power.
code of conduct means the code of conduct determined under section 201.
Commonwealth entity has the same meaning as in thePublic Governance, Performance and Accountability Act 2013 .
corporate and registry services , of the Tribunal: see subsection 226(2).
Council means the Administrative Review Council.
Council member means any member of the Council including the Chair of the Council.
criminal intelligence assessment means an adverse criminal intelligence assessment within the meaning of Division 2A of Part II of theAustralian Crime Commission Act 2002 .
decision includes the following:
(a) making, suspending, revoking or refusing to make an order or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing.
decision‑maker : see section 14.
Deputy President means a Judicial Deputy President or a Non‑Judicial Deputy President.
dispute resolution process means a procedure or service for the voluntary resolution of disputes, and includes:
(a) conferencing; and
(b) mediation; and
(c) neutral evaluation; and
(d) conciliation; and
(e) a procedure or service specified in the practice directions;
but does not include:
(f) arbitration; or
(g) court procedures or services.
election notice : see subsection 60(1).
eligible social services decision : see section 131C.
engage in conduct means:
(a) do an act; or
(b) omit to perform an act.
entrusted person means a person who is or has been:
(a) a member; or
(b) the Principal Registrar; or
(c) a staff member; or
(d) a person engaged to provide services to the Tribunal.
exempt security record decision means:
(a) a decision of a kind mentioned in subsection 57A(1) of the
Freedom of Information Act 1982 in respect of a document that is an exempt document (within the meaning of that Act) because of section 33 of that Act; or(b) a decision of the National Archives of Australia in respect of access to:
(i) a record claimed to be an exempt record under the
Archives Act 1983 because it contains information or matter of a kind mentioned in paragraph 33(1)(a) or (b) or subsection 33(4A) or (4C) of that Act; or(ii) a record of ASIO.
Federal Court means the Federal Court of Australia.
foreign acquisitions and takeovers decision means a decision under section 79A of theForeign Acquisitions and Takeovers Act 1975 that a national security risk exists in relation to an action.
general member means a person appointed as a general member under section 208.
guidance and appeals panel : the Tribunal is constituted for the purposes of a proceeding by theguidance and appeals panel if the Tribunal is constituted for the purposes of the proceeding in accordance with Subdivision C of Division 4 of Part 4.
guidance and appeals panel application means an application taken to be made under subsection 130(2).
guidance and appeals panel proceeding : a proceeding in the Tribunal in relation to an application is aguidance and appeals panel proceeding if:
(a) the application is a guidance and appeals panel application; or
(b) the President refers the application to the guidance and appeals panel.
hearing of a proceeding : thehearing of a proceeding in the Tribunal does not include a directions hearing in relation to the proceeding.
intelligence and security decision means:
(a) a criminal intelligence assessment; or
(b) an exempt security record decision; or
(c) a foreign acquisitions and takeovers decision; or
(e) a security assessment; or
(f) a security clearance decision; or
(g) a security clearance suitability assessment.
Judge means a Judge of a court created by the Parliament.
Judicial Deputy President means a person appointed as a Judicial Deputy President under section 206.
jurisdictional area means a jurisdictional area of the Tribunal established by subsection 196(1).
jurisdictional area leader :
(a) in relation to a jurisdictional area—means a person assigned under subsection 197(1) to be a leader of the jurisdictional area; and
(b) in relation to a list—means the jurisdictional area leader of the jurisdictional area within which the list is established.
law enforcement interests has the same meaning as in Division 2A of Part II of theAustralian Crime Commission Act 2002 .
legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner of the High Court or of the Supreme Court of a State or Territory.
list means a list established within a jurisdictional area by the President under subsection 196(2).
litigation supporter , in relation to a party to a proceeding, means a person appointed to be a litigation supporter for the party under section 67.
made under an Act : an instrument ismade under an Act if it is made under a provision of an Act or made under a provision of an instrument that is made under an Act.
member means any of the following members of the Tribunal:
(a) the President;
(b) a Deputy President;
(c) a senior member;
(d) a general member.
merit‑based : an assessment process for an appointment to an office ismerit‑based only if:
(a) an assessment is made of the comparative suitability of the candidates for the duties of the office, using a competitive selection process; and
(b) the assessment is based on the relationship between the candidates’ skills, expertise, experience and knowledge and the skills, expertise, experience and knowledge required for the duties of the office; and
(c) the assessment takes into account the need for a diversity of skills, expertise, lived experience and knowledge within the Tribunal.
national security information has the same meaning as in theNational Security Information (Criminal and Civil Proceedings) Act 2004 .
Non‑Judicial Deputy President means a person appointed as a Non‑Judicial Deputy President under section 207.
non‑judicial member means a member who is not a Judge.
non‑participating party : see section 61.
Norfolk Island enactment means:
(a) an enactment (within the meaning of the
Norfolk Island Act 1979 ); or(b) an instrument (including rules, regulations or by‑laws) made under such an enactment;
and includes a Norfolk Island enactment as amended by another Norfolk Island enactment.
official has the same meaning as in thePublic Governance, Performance and Accountability Act 2013 .
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise), other than service in the Australian Defence Force.
parliament means:
(a) a House of the Parliament of the Commonwealth, of a State or of a Territory; or
(b) a committee of a House or the Houses of the Parliament of the Commonwealth, of a State or of a Territory.
participation notice : see section 62.
performance standard means the performance standard determined under section 202.
person whose interests are affected by a decision has a meaning affected by section 15.
practice directions means practice directions made under section 36.
President means the person appointed as the President under section 205.
presiding member , in relation to a proceeding, means the member the President directs under subsection 37(2) is to preside for the purposes of the proceeding.
Principal Registrar means the person appointed as the Chief Executive Officer and Principal Registrar under section 227.
proceeding , in relation to the Tribunal, includes a proceeding in the Tribunal in relation to any of the following:
(a) an application for review of a reviewable decision;
(b) an application under subsection 270(2) (applying to Tribunal to obtain reasons for reviewable decision);
(c) an application under subsection 271(2) (applying to Tribunal to obtain adequate statement of reasons);
(d) any other application to the Tribunal under this Act, any other Act or any instrument made under an Act;
(e) any matter referred to the Tribunal for inquiry or review under this Act, any other Act or any instrument made under an Act;
(f) an incidental application to the Tribunal made in the course of, or in connection with, an application or proposed application, or a matter, mentioned in a preceding paragraph.
produce includes permit access to.
protected document : see subsection 274(3).
protected information : see subsection 274(4).
reconstitute the Tribunal , in relation to a proceeding, means revoke the direction made under subsection 37(1) in relation to the proceeding and make another direction under that subsection in relation to the proceeding.
registrar means a person appointed as a registrar under section 237.
relevant body : see subsection 137(2).
responsible Minister , in relation to an intelligence and security decision, means the Minister, or any of the Ministers, administering the provision under which the decision is made.
reviewable decision : see section 12.
review pathway : see subsection 266(3).
rules means the rules made under section 295.
salaried member means a member who is appointed on a salaried basis.
second review : see subsection 131D(1).
security assessment means:
(a) an adverse security assessment within the meaning of Part IV of the ASIO Act; or
(b) a qualified security assessment within the meaning of Part IV of the ASIO Act.
security clearance decision has the same meaning as in the ASIO Act.
security clearance suitability assessment has the same meaning as in the ASIO Act.
security vetting agency has the same meaning as in Part IVA of the ASIO Act.
senior member means a person appointed as a senior member under section 208.
serious misconduct includes, but is not limited to, the following:
(a) conduct that constitutes unlawful discrimination (within the meaning of the
Australian Human Rights Commission Act 1986 );(b) serious or repeated bullying or harassment of a person.
sessional member means a member who is appointed on a sessional basis.
sponsoring agency has the same meaning as in Part IVA of the ASIO Act.
staff member means:
(a) a member of the staff of the Tribunal; or
(b) a person whose services are made available to the Tribunal under section 239.
statement of reasons , for a decision, means a written statement in relation to the decision that:
(a) sets out the findings on material questions of fact; and
(b) refers to the evidence or other material on which the findings are based; and
(c) explains the reasons for the decision.
State or Territory government entity means:
(a) a Department of a State or Territory; or
(b) a body (whether incorporated or not) established for a public purpose by or under a law of a State or Territory.
Tribunal means the Administrative Review Tribunal established by section 8.
Tribunal Advisory Committee means the Tribunal Advisory Committee established by section 236.
Tribunal case event , in relation to a proceeding in the Tribunal, means:
(a) the hearing, or part of the hearing, of the proceeding; or
(b) a directions hearing, or part of a directions hearing, in relation to the proceeding; or
(c) a dispute resolution process, or part of a dispute resolution process, under Subdivision C of Division 6 of Part 4 in relation to the proceeding.
Tribunal guidance decision : see subsection 109(1).
General rules
(1) The application of a provision of this Act is subject to a contrary intention in another Act.
Note: For example, the Act under which a reviewable decision is made may contain provisions that apply to review of the decision in addition to, or instead of, provisions in this Act.
(2) If an Act provides that an instrument made under that Act can contain provisions that apply:
(a) in addition to; or
(b) instead of; or
(c) contrary to;
this Act, the application of a provision of this Act is subject to a contrary intention in the instrument.
Note: Instruments may contain provisions that apply to review of a reviewable decision in addition to, or instead of, provisions in this Act if that is permitted by the Act under which the instrument is made.
Exceptions
(3) However, subsections (1) and (2) do not apply in relation to:
(a) Part 2 (establishment of Administrative Review Tribunal); or
(b) Part 8 (members and staff of Tribunal); or
(c) Part 9 (Administrative Review Council).
This Act extends to the external Territories.
The Administrative Review Tribunal is established with the objective of providing an independent mechanism of review.
The Tribunal consists of the President, Deputy Presidents, senior members and general members. The President and Judicial Deputy Presidents are Judges. For detail relating to appointments and roles, see Divisions 2 and 3 of Part 8.
The Tribunal also has a Principal Registrar and staff. For detail regarding management of the Tribunal, see Part 8.
The Administrative Review Tribunal is established by this section.
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision‑making; and
(e) promotes public trust and confidence in the Tribunal.
(1) The Tribunal consists of the following members:
(a) the President;
(b) Deputy Presidents;
(c) senior members;
(d) general members.
(2) A Judge who is to be appointed as a member must be appointed as the President or as a Judicial Deputy President.
A large number of Acts and legislative instruments allow people to apply to the Tribunal for review of decisions made under them.
A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. Timeframes apply to applications, but may be extended in some circumstances.
If a person applies for review of a decision, the person and the decision‑maker are parties to the proceeding for the review. Other people whose interests are affected by the decision may apply to the Tribunal to become a party.
For the purposes of the review of a decision, the decision‑maker must generally give copies of a statement of reasons for the decision and relevant documents to the Tribunal and the other parties to the proceeding for the review.
An application for review of a decision does not affect the operation of the decision unless the Tribunal orders otherwise.
This Part contains the standard provisions for these matters. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions.
Part 10 contains other provisions assisting persons affected by decisions. These deal with when decision‑makers are required to give notice of decisions and review rights and provide statements of reasons.
(1) A decision is a
reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.Note: To find out whether a decision is a reviewable decision, start by looking at the Act or legislative instrument under which the decision is made.
(2) In addition, if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of a decision of a person under a power, a decision under the power is a
reviewable decision , whether or not it is made by the person.Note: Under subsection (2), the decision is a reviewable decision even if made by a person who is not authorised to make the decision.
(1) A legislative instrument may provide for an application to be made to the Tribunal for review of a decision made under the instrument.
(2) Subsection (1) does not limit any other Act or instrument made under an Act.
General rule
(1) The
decision‑maker for a decision is the person who makes the decision.Note: For when Tribunal decisions are taken to be made by the decision‑maker, see subsection 108(2).
Exception—person ceases to hold office, appointment or position
(2) Despite subsection (1), if:
(a) a person makes a decision as the holder or occupier of an office, appointment or position; and
(b) the person ceases to hold or occupy the office, appointment or position;
the
decision‑maker for the decision is:
(c) the person who holds or occupies the office, appointment or position; or
(d) if there is no person who holds or occupies the office, appointment or position—the person specified by the President.
Exception—any other circumstance
(3) If subsections (1) and (2) do not apply in relation to a decision, the
decision‑maker for the decision is the person specified by the President.
Specifying a decision‑maker
(4) The President must not specify a person under paragraph (2)(d) or subsection (3) unless the President considers that the person is the person most able to satisfy the requirements imposed by this Act on decision‑makers of reviewable decisions.
(5) If the President specifies the person in writing, the specification is not a legislative instrument.
Extension—unincorporated decision‑maker is treated as if it were a person
(6) If a board, committee or other unincorporated body constituted by 2 or more persons is empowered by an Act or an instrument made under an Act to make a decision, this Act applies as if that board, committee or other body were a person empowered to make the decision.
Clarification—decisions made by delegates
(7) Subject to this Act, if an Act or an instrument made under an Act confers power on a person or body (the
authority ) to delegate a function or power in relation to a decision, a function or power so delegated, when performed or exercised by the delegate, is, for the purposes of this Act, taken to have been performed or exercised by the authority.
An organisation or association of persons, whether incorporated or not, is taken to be a person whose interests are affected by a decision if:
(a) the decision relates to a matter included in the objects or purposes of the organisation or association at the time the decision is made; and
(b) the matter has not been removed from the objects or purposes of the organisation or association.
16 Decision is taken to be made if timeframe expires If:
(a) a decision of a person not to do a thing is a reviewable decision; and
(b) an Act or an instrument made under an Act provides for a quantified period within which the person is required or permitted to do the thing; and
(c) the person does not do the thing within the period;
the person is taken, for the purposes of this Act and the Act or instrument that provides for an application to be made to the Tribunal for review of the decision, to have made a decision at the end of the period not to do the thing.
Note: If there is no quantified period within which the person is required or permitted to do the thing, see section 10 of the
Ombudsman Act 1976 .
(1) A person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision.
Note 1: For which decisions are reviewable decisions, see section 12.
Note 2: For when an organisation’s or association’s interests are taken to be affected, see section 15.
Note 3: Section 173 provides a right of appeal to the Federal Court if the Tribunal decides that a person’s interests are not affected by a reviewable decision.
(2) To avoid doubt, a person may apply even if the person is the Commonwealth or an authority, tribunal or other body (whether incorporated or not) that is established by an Act or an instrument made under an Act.
(1) An application to the Tribunal for review of a decision must be made within the period prescribed by the rules.
Note: The legislation under which a reviewable decision is made may specify a different period for applying for review of that type of decision.
(2) Subsection (1) is subject to section 19 (exception—Tribunal may extend period).
(3) Rules made for the purposes of subsection (1) must not prescribe a period ending before the day that is 28 days after the day the decision is made.
(4) Rules made for the purposes of subsection (1) may prescribe different periods for different classes of application.
Application to extend period
(1) A person (the
applicant ) may apply to the Tribunal to extend the period during which the applicant may apply to the Tribunal for review of a decision.(2) The Tribunal may, by order, extend the period if the Tribunal considers that it is reasonable in all the circumstances to do so.
(3) The Tribunal may extend the period even if it has expired.
Exception—where reinstatement is available or has been refused
(4) The Tribunal must not extend the period if:
(a) section 102 permits the applicant to apply to the Tribunal to reinstate an application by the applicant for review of the decision; or
(b) the Tribunal refuses an application by the applicant under section 102 to reinstate an application for review of the decision.
Notice to affected persons may be required
(5) The Tribunal may:
(a) give notice of the application to extend the period (the
extension application ); or(b) require the applicant to give notice of the extension application;
to any other person the Tribunal considers is affected by the extension application.
Affected persons may oppose extension application
(6) A person notified under subsection (5) may notify the Tribunal within 14 days that the person wishes to oppose the extension application.
(7) If a person notifies the Tribunal under subsection (6), the Tribunal must not extend the period unless the Tribunal has given the applicant and any person who notified the Tribunal under subsection (6) a reasonable opportunity to adduce evidence and make submissions to the Tribunal in relation to the extension.
(1) If:
(a) an application for review of a decision is made to the Tribunal; and
(b) the application is not required by law to be made within any particular period; and
(c) the Tribunal considers that the application was not made within a reasonable time after the making of the decision;
the Tribunal must dismiss the application.
(2) However, subsection (1) does not apply if the Tribunal considers that there are special circumstances that justify the Tribunal reviewing the decision.
(3) In considering the matter in paragraph (1)(c):
(a) the Tribunal must have regard to the following:
(i) the time at which the applicant became aware of the making of the decision;
(ii) if the application would have been required by law to be made within a particular period if the application had been made by someone other than the applicant—that period; and
(b) the Tribunal may have regard to any other matters that it considers relevant.
(1) This section applies if an application is made to the Tribunal for review of a decision.
(2) The Tribunal must give written notice of the application to:
(a) the applicant; and
(b) the decision‑maker; and
(c) any other person who is made a party to the proceeding for the review by an Act or an instrument made under an Act.
(3) If the Tribunal considers that another person’s interests may be affected by the decision, the Tribunal may:
(a) give to the person; or
(b) require the applicant to give to the person;
written notice of the application and the person’s right to apply to become a party to the proceeding for the review.
Parties to proceeding
(1) Each of the following are parties to a proceeding for review by the Tribunal of a decision:
(a) the applicant for the review;
(b) the decision‑maker;
(c) any other person, if:
(i) the person applies to the Tribunal to become a party to the proceeding; and
(ii) the Tribunal is satisfied that the person’s interests are affected by the decision; and
(iii) the Tribunal considers it appropriate that the person become a party to the proceeding.
Note: In addition, the Attorney‑General of the Commonwealth or of a State or Territory is a party to a proceeding in certain circumstances (see sections 59 and 93).
(2) This section is subject to sections 65 (certain parties may seek to withdraw from being a party) and 83 (Tribunal may remove party from proceeding if party fails to appear or does not comply).
Notice to other parties
(3) If a person becomes a party to a proceeding under paragraph (1)(c), the Tribunal must give written notice to the other parties to the proceeding.
Within 28 days after the Tribunal notifies the decision‑maker for a decision of an application for review of the decision, the decision‑maker must give the Tribunal:
(a) a statement of reasons for the decision; and
(b) a copy of every other document that is:
(i) in the possession or under the control of the decision‑maker; and
(ii) relevant to the Tribunal’s review of the decision.
Note: A decision‑maker may, but is not required to, give the Tribunal the same statement of reasons given to an applicant (whether under section 269 or 270 or otherwise).
(1) This section applies if a decision‑maker for a decision has given the Tribunal a statement of reasons for the decision under section 23.
(2) The Tribunal may order the decision‑maker to give the Tribunal, within the period specified in the order, a statement containing further information in relation to any one or more of the following:
(a) findings on material questions of fact in relation to the decision;
(b) evidence or other material on which the findings were based;
(c) reasons for the decision.
If:
(a) at any time during the Tribunal’s review of a decision, a document that is relevant to the review comes into the possession or under the control of the decision‑maker; and
(b) the document has not been given to the Tribunal for the purposes of the review;
the decision‑maker must give a copy of the document to the Tribunal within 28 days after the day on which the document came into the possession or under the control of the decision‑maker, or within a longer period specified in the practice directions.
(1) If, at any time during the Tribunal’s review of a decision, the Tribunal is satisfied that a document that may be relevant to the review is in the possession or under the control of the decision‑maker, the Tribunal may request the decision‑maker to give a copy of the document to the Tribunal within a specified period.
(2) The request may relate to a particular document or documents in a class of documents.
(3) If the document is in the possession or under the control of the decision‑maker, the decision‑maker must give the Tribunal a copy of the document within the specified period.
(1) If a decision‑maker for a decision is required to give the Tribunal a statement or copy of a document under this Subdivision within a period, the decision‑maker must give a copy of the statement or document to each other party to the proceeding for review of the decision within the same period.
(2) Subsection (1) does not apply if there is a certificate under section 91 (disclosure of information—public interest certificate) that relates to the disclosure of the statement or document in the proceeding.
When this section applies
(1) This section applies if the decision‑maker for a decision is required to give the Tribunal or a party to a proceeding a statement or copy of a document under this Subdivision within a period.
(2) This section applies despite any other provision in this Subdivision (other than section 29).
Shorten period to comply
(3) A party to the proceeding for review of the decision may apply to the Tribunal to shorten the period within which the decision‑maker must give the statement or copy.
(4) On application under subsection (3) or on the Tribunal’s own initiative, the Tribunal may, by order, shorten the period within which the decision‑maker must give the statement or copy if it appears to the Tribunal that a party to the proceeding for review of the decision could suffer hardship if the period is not shortened.
Extend period to comply
(5) The decision‑maker may apply to the Tribunal to extend the period within which the decision‑maker must give the statement or copy.
(6) On application under subsection (5) or on the Tribunal’s own initiative, the Tribunal may, by order, extend the period within which the decision‑maker must give the statement or copy.
(7) The Tribunal may extend the period even if it has expired.
Tribunal orders otherwise
(8) The decision‑maker does not need to give the statement or copy if the Tribunal orders the decision‑maker not to give the statement or copy.
Practice directions provide otherwise
(9) The decision‑maker does not need to give the statement or copy in the circumstances specified in the practice directions.
Number of copies
(10) The Tribunal may, by order, require the decision‑maker to give a specified number of copies of the statement or document.
(1) This section applies if the decision‑maker for a decision is required to give the Tribunal or a party to a proceeding a statement or copy of a document under this Subdivision.
(2) This section applies despite subsection 27(1) and section 28.
(3) If:
(a) a person applies to the Tribunal for an order under section 70 prohibiting or restricting the publication or other disclosure of information in the statement or copy; and
(b) the person gives the Tribunal the statement or copy; and
(c) the person gives a copy of the application for the order to each party to the proceeding for review of the decision (other than the person);
the decision‑maker does not need to give the statement or copy unless the Tribunal, after making its decision on the application for the order, orders the decision‑maker to do so.
This Subdivision (other than section 25) has effect despite any rule of law relating to legal professional privilege, without prejudice privilege or the public interest in relation to the production of documents.
General rule
(1) After an application is made to the Tribunal for review of a reviewable decision, the decision may not be altered otherwise than by the Tribunal.
Exceptions
(2) However, the decision may be altered if:
(a) both of the following apply:
(i) the parties to the proceeding for the review consent to the alteration;
(ii) the Tribunal, by order, consents to the alteration; or
(b) the decision is remitted to the decision‑maker under section 85.
Definitions
(3) In this section:
alter a decision means:
(a) vary the decision; or
(b) set the decision aside; or
(c) set the decision aside and make a decision in substitution for the decision.
General rule
(1) The making of an application to the Tribunal for review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision.
Exception—Tribunal may stay operation or implementation
(2) However, on application by a party to a proceeding for review of a reviewable decision, the Tribunal may make an order staying or otherwise affecting the operation or implementation of the decision if the Tribunal considers that it is desirable to do so for the purpose of ensuring the effectiveness of the review.
(3) The order is subject to any conditions specified in the order.
(4) The order has effect until the decision of the Tribunal on the application for review comes into operation.
(5) Despite subsection (4), if:
(a) the order states that it applies for a period; and
(b) the period ends before the decision of the Tribunal on the application for review comes into operation;
the order has effect until the end of the period.
(6) On application by a party to the proceeding, the Tribunal may, by order, vary or revoke the order.
Preconditions to making, varying or revoking an order
(7) The Tribunal must not make, vary or revoke an order staying or otherwise affecting the operation or implementation of a reviewable decision unless:
(a) the Tribunal has given the parties to the proceeding for review of the decision a reasonable opportunity to make submissions to the Tribunal in relation to the making, variation or revocation of the order; and
(b) the Tribunal has taken into account the interests of any person who may be affected by the review of the decision.
(8) However, paragraph (7)(a) does not prevent the Tribunal making, varying or revoking an order without giving a party an opportunity to make a submission to the Tribunal if the Tribunal is satisfied that it is not practicable to give the party the opportunity.
(9) If the Tribunal makes, varies or revokes an order without giving a party an opportunity to make a submission as mentioned in subsection (8), the order, variation or revocation does not take effect until a notice setting out the terms of the order, variation or revocation is given to the party.
This Part deals with the process the Tribunal follows when an application is made. It contains the standard provisions for Tribunal proceedings. Other legislation can include provisions that apply in addition to, or instead of, these standard provisions. For example, standard requirements apply to applications to the Tribunal, but other legislation may specify additional or alternative requirements.
Practice directions made by the President also deal with various matters relating to Tribunal proceedings and operations. Practice directions must be published.
The President decides which member or members will exercise the Tribunal’s powers for a specific proceeding. This is referred to as constituting the Tribunal for the purposes of the proceeding. There are different requirements for constituting the Tribunal for different kinds of proceedings. For other ways the Tribunal’s powers can be exercised, see Division 4 of Part 11.
General principles (for example in relation to accessibility and informality) apply to how the Tribunal runs proceedings. Specific requirements also apply to the Tribunal, applicants, decision‑makers and other parties to proceedings. There are provisions dealing with the following:
(a) participating in proceedings, including representation;
(b) ways for parties to stop participating;
(c) hearings, directions hearings and dispute resolution processes (together known as Tribunal case events);
(d) obtaining and managing evidence and information, including public interest certificates;
(e) orders the Tribunal may make in relation to proceedings.
The Tribunal may dismiss an application without making a decision in some circumstances. Otherwise, in a review of a reviewable decision, the Tribunal must affirm, vary or set aside the decision. If the Tribunal sets aside the decision, it may make a substitute decision or remit the matter to the decision‑maker to reconsider as ordered or recommended by the Tribunal.
The timing and effect of some Tribunal decisions is set out. Once decisions are made, requirements apply to the Tribunal in relation to giving notice, giving statements of reasons and publishing decisions.
Some guidance and appeals panel decisions are specified to be Tribunal guidance decisions. The Tribunal must have regard to these decisions in some future proceedings.
There are a number of offences applying to giving evidence, non‑publication and non‑disclosure orders and contempt.
Manner of applying
(1) An application to the Tribunal may be made in writing or in any other manner specified for the application in the practice directions.
Information to include
(2) An application to the Tribunal must include the information specified for the application in the practice directions.
Note 1: A fee may be payable in respect of the application (see rules made for the purposes of section 296). An application may be dismissed if the fee is not paid within the time prescribed by the rules (see section 98).
Note 2: The legislation under which a reviewable decision is made may contain other requirements for applications for review of that type of decision.
(3) A failure to comply with subsection (2) does not affect the validity of the application.
To avoid doubt, if this Act, another Act or an instrument made under this Act or another Act allows a person to make an application to the Tribunal, the application may be made on the person’s behalf by someone else.
President may make practice directions
(1) The President may make practice directions in relation to any or all of the following:
(a) the operations of the Tribunal;
(b) the procedure of the Tribunal;
(c) the conduct of proceedings by the Tribunal;
(d) the arrangement of the business of the Tribunal;
(e) the places at which the Tribunal may sit;
(f) the use of technology that allows a person to participate in a proceeding, or part of a proceeding, in the Tribunal without being physically present;
(g) giving information or producing or giving documents or things to the Tribunal for any purpose, including:
(i) the form and manner in which information, documents or things may be produced or given; and
(ii) producing or giving additional copies of documents;
(h) giving information or producing or giving documents or things to persons for the purposes of a proceeding in the Tribunal, including:
(i) the form and manner in which information, documents or things may be produced or given; and
(ii) producing or giving additional copies of documents;
(i) dispute resolution processes under Subdivision C of Division 6;
(j) the sorting, prioritisation, allocation and treatment of applications for review and related matters;
(k) the accessibility of the Tribunal and the responsiveness of the Tribunal to the diverse needs of parties to proceedings;
(l) any other matter that is required or permitted by this Act to be specified in the practice directions.
(2) Practice directions must be made in writing.
Consultation before practice directions are made
(3) Before making a practice direction, the President must consult the Tribunal Advisory Committee.
Regulations and rules prevail over practice directions
(4) Practice directions that are inconsistent with the regulations or rules have no effect to the extent of the inconsistency, but practice directions are taken to be consistent with the regulations and rules to the extent that the practice directions are capable of operating concurrently with the regulations and rules.
Failure to comply does not invalidate
(5) A failure by the Tribunal to comply with the practice directions does not affect the validity of anything done by the Tribunal.
Compliance is sufficient
(6) If the Tribunal deals with a proceeding in a way that complies with the practice directions, the Tribunal is not required to take any other action in dealing with the proceeding.
Publishing
(7) The Tribunal must publish practice directions.
Practice directions not legislative instruments
(8) A practice direction made under subsection (1) is not a legislative instrument.
President directs how Tribunal is constituted
(1) The President may direct that a member or members constitute the Tribunal for the purposes of a proceeding in the Tribunal.
President directs which member presides
(2) If the Tribunal is constituted by more than one member for the purposes of a proceeding, the President must direct which member is to preside for the purposes of the proceeding.
Requirements for directions
(3) In making a direction under subsection (1) or (2), the President must comply with:
(a) the requirements specified in this Act; and
(b) any other requirements specified in the practice directions.
(4) If a direction under subsection (1) or (2) is made in writing, the direction is not a legislative instrument.
President must notify parties to proceeding
(5) If the President makes a direction under subsection (1) or (2) in relation to a proceeding, the President must give written notice to each party to the proceeding (other than a non‑participating party to the proceeding).
(6) The notice does not need to specify:
(a) the member or members constituting the Tribunal; or
(b) the member who is to preside.
(7) If the Tribunal is constituted for the purposes of the proceeding by the guidance and appeals panel, the notice must state this.
Before the President directs that a Judicial Deputy President constitutes, or members at least one of whom is a Judicial Deputy President constitute, the Tribunal for the purposes of a proceeding, the President must consult the Chief Justice of the court of which the Judicial Deputy President is a Judge.
General rules
(1) The Tribunal must be constituted for the purposes of a proceeding by a single member, 2 members or 3 members.
(2) The Tribunal may be constituted by 2 or 3 members only if the President considers that it is appropriate to do so:
(a) because the proceeding raises a complex issue; or
(b) because one or more of the members have particular expertise relevant to the proceeding; or
(c) in the interests of justice.
(3) The Tribunal constituted must have no more than one member who is a Judge.
Exceptions
(4) This section is subject to Subdivision C (guidance and appeals panel).
When this section applies
(1) This section applies instead of section 39 in relation to a proceeding in the Tribunal in relation to an application referred to the guidance and appeals panel by the President under section 122.
Note: The President may refer an application for review of a decision to the guidance and appeals panel if the President is satisfied that the application raises an issue of significance to administrative decision‑making (see section 122).
General rules
(2) The Tribunal must be constituted for the purposes of the proceeding by 2 or 3 members.
(3) One of the members must be the President or a Deputy President.
When this section applies
(1) If:
(a) a proceeding relates to a guidance and appeals panel application taken to be made because the President refers a decision of the Tribunal (the
Tribunal decision ) to the guidance and appeals panel; and(b) the President is satisfied that the Tribunal decision raises an issue of significance to administrative decision‑making;
the President must constitute the Tribunal for the purposes of the proceeding in accordance with this section instead of section 39.
Note: Under section 128, the President may refer a decision of the Tribunal to the guidance and appeals panel if the President is satisfied of either or both of the following:
(a) the decision raises an issue of significance to administrative decision‑making;
(b) the decision may contain an error of fact or law materially affecting the decision.
General rules
(2) The Tribunal must be constituted for the purposes of the proceeding by 2 or 3 members.
(3) One of the members must be the President or a Deputy President.
(4) Unless the parties to the proceeding agree otherwise, none of the members can be a person who constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made.
When this section applies
(1) If:
(a) a proceeding relates to a guidance and appeals panel application taken to be made because the President refers a decision of the Tribunal (the
Tribunal decision ) to the guidance and appeals panel; and(b) the President is not satisfied that the Tribunal decision raises an issue of significance to administrative decision‑making;
the President must constitute the Tribunal for the purposes of the proceeding in accordance with this section instead of section 39.
Note: Under section 128, the President may refer a decision of the Tribunal to the guidance and appeals panel if the President is satisfied of either or both of the following:
(a) the decision raises an issue of significance to administrative decision‑making;
(b) the decision may contain an error of fact or law materially affecting the decision.
General rules
(2) The Tribunal must be constituted for the purposes of the proceeding by a single member, 2 members or 3 members.
(3) Unless the parties to the proceeding agree otherwise, none of the members can be a person who constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made.
(4) If the Tribunal is constituted for the purposes of the proceeding by a single member, the member must be more senior than the most senior person involved in making the Tribunal decision (see subsections (6) and (7)).
(5) If the Tribunal is constituted for the purposes of the proceeding by 2 or 3 members, the presiding member must be:
(a) if a Non‑Judicial Deputy President constituted, or was one of the persons who constituted, the Tribunal for the purposes of the proceeding in which the Tribunal decision was made—equal in seniority to, or more senior than, the most senior person involved in making the Tribunal decision (see subsections (6) and (7)); or
(b) in any other case—more senior than the most senior person involved in making the Tribunal decision (see subsections (6) and (7)).
(6) For the purposes of subsections (4) and (5), the most senior person involved in making the Tribunal decision is:
(a) if the Tribunal decision was made by the Tribunal constituted for the purposes of a proceeding by a single member—that member; or
(b) if the Tribunal decision was made by the Tribunal constituted for the purposes of a proceeding by 2 or more members—the most senior of those members.
(7) For the purposes of subsections (4), (5) and (6), the order of seniority of members is as follows:
(a) the President;
(b) Judicial Deputy Presidents;
(c) Non‑Judicial Deputy Presidents;
(d) senior members;
(e) general members.
At any time before the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal.
President may reconstitute Tribunal
(1) At any time after the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal if:
(a) the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:
(i) stops being a member; or
(ii) is for any reason unavailable; or
(iii) is directed by the President not to take part in the proceeding; or
(b) the President considers that reconstituting the Tribunal is in the interests of achieving the quick and efficient conduct of the proceeding.
(2) However, the President must not reconstitute the Tribunal under this section unless the President:
(a) considers that it is in the interests of justice to do so; and
(b) consults each member who would cease to be a member of the Tribunal as constituted for the purposes of the proceeding if it is reasonably practicable to do so.
President may direct member not to take part
(3) The President may direct that a member not take part in a proceeding in the Tribunal if:
(a) the President considers that it is in the interests of justice to do so; and
(b) the President has consulted the member if it is reasonably practicable to do so.
At any time after the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal if section 89 (eligibility of person conducting dispute resolution process to sit as a member) applies in relation to the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding.
At any time after the start of the hearing of a proceeding in the Tribunal, the President may reconstitute the Tribunal if the President is satisfied that the member, or one of the members, who constitutes the Tribunal for the purposes of the proceeding:
(a) has a conflict of interest in relation to the proceeding; or
(b) has an actual or apprehended bias in relation to the proceeding.
The President must reconstitute the Tribunal for the purposes of a proceeding if, at any time after the start of the hearing of the proceeding, the application to which the proceeding relates is referred to the guidance and appeals panel by the President under section 122.
Note: The President may refer an application for review of a decision to the guidance and appeals panel if the President is satisfied that the application raises an issue of significance to administrative decision‑making (see section 122).
If the President reconstitutes the Tribunal for the purposes of a proceeding, the Tribunal as reconstituted:
(a) must continue the proceeding; and
(b) may have regard to:
(i) any record of the proceeding before the Tribunal as previously constituted (including a record of any evidence taken in the proceeding); and
(ii) any document or thing relating to the proceeding given to the Tribunal as previously constituted.
(1) The procedure of the Tribunal in a proceeding is within the discretion of the Tribunal.
(2) In exercising its discretion, the Tribunal must have regard to the circumstances of the proceeding.
(3) Subsections (1) and (2) are subject to this Act and the rules.
(1) In a proceeding, the Tribunal must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits.
(2) Subsection (1) is subject to this Act and the rules.
(1) As far as practicable, the Tribunal must conduct each proceeding in the Tribunal in a way that is accessible for the parties to the proceeding, taking into account the needs of the parties.
(2) Subsection (1) is subject to this Act and the rules.
The Tribunal is not bound by the rules of evidence, but may inform itself on any matter in such manner as it considers appropriate.
In a proceeding for review of a decision, the Tribunal may determine the scope of the review by limiting the questions of fact, the evidence and the issues that it considers.
For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision‑maker by an Act or an instrument made under an Act.
General rule
(1) The Tribunal must ensure that each party to a proceeding in the Tribunal is given a reasonable opportunity to:
(a) present the party’s case; and
(b) access any information or documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding; and
(c) make submissions and adduce evidence.
Exceptions
(2) Subsection (1) does not apply in relation to a non‑participating party to the proceeding.
(2A) If a party to the proceeding is a non‑participating party to a Tribunal case event in relation to the proceeding, subsection (1) does not apply in relation to that party in relation to that Tribunal case event.
(3) Subsection (1) is subject to:
(a) section 69 (hearings to be in public unless practice directions or Tribunal order requires otherwise); and
(b) section 70 (Tribunal may restrict publication or disclosure of information); and
(c) section 78 (inspection of documents produced under summons); and
(d) section 91 (disclosure of information—public interest certificate); and
(e) Part 6 (proceedings in Intelligence and Security jurisdictional area).
(4) This section does not limit section 53 (Tribunal controls scope of review of decision).
Decision‑makers and their representatives
(1) In a proceeding for review of a decision, the decision‑maker and any person representing the decision‑maker must use their best endeavours to assist the Tribunal to:
(a) make the correct or preferable decision in relation to the proceeding; and
(b) achieve the objective in section 9.
Other parties and their representatives
(2) A party to a proceeding in the Tribunal (other than the decision‑maker in a proceeding for review of a decision) and any person representing the party must use their best endeavours to assist the Tribunal to achieve the objective in section 9.
Obligation is limited for non‑participating party
(3) The obligation of a non‑participating party to a proceeding or a Tribunal case event in relation to a proceeding, and any person representing the party, to use best endeavours to assist the Tribunal in relation to the proceeding only applies in relation to action the party is required to take by this Act or the Tribunal in relation to the proceeding.
Sittings of the Tribunal are to be held from time to time as required, in such places in Australia or an external Territory as are convenient or in the interests of justice.
2 members
(1) If 2 members constitute the Tribunal for the purposes of a proceeding and they do not agree about any matter, the view of the presiding member prevails.
3 members
(2) If 3 members constitute the Tribunal for the purposes of a proceeding and they do not agree about any matter:
(a) if the majority agree—the view of the majority prevails; or
(b) in any other case—the view of the presiding member prevails.
Becoming a party
(1) If the Attorney‑General of the Commonwealth gives written notice to the Tribunal that the Attorney‑General wishes to be a party to a proceeding in the Tribunal, the Attorney‑General is a party to the proceeding.
Ceasing to be a party
(2) If:
(a) the Attorney‑General of the Commonwealth is a party to a proceeding because of a notice under subsection (1); and
(b) the Attorney‑General gives written notice to the Tribunal that the Attorney‑General wishes to cease being a party to the proceeding;
the Attorney‑General ceases being a party to the proceeding.
Costs
(3) If the Attorney‑General of the Commonwealth is a party to a proceeding because of a notice under subsection (1), the Attorney‑General may authorise the Commonwealth to pay another party to the proceeding any costs that the Attorney‑General considers the party reasonably incurred as a result of the Attorney‑General being a party to the proceeding.
(1) A person who is the decision‑maker for a reviewable decision may give the Tribunal written notice (an
election notice ) that the person does not wish to participate in:
(a) a kind of proceeding in the Tribunal; or
(b) a kind of Tribunal case event (other than a directions hearing or part of a directions hearing) in relation to a kind of proceeding in the Tribunal.
(2) However, subsection (1) does not apply in relation to a kind of proceeding or Tribunal case event prescribed by the rules.
(3) An election notice is not a legislative instrument.
Person who has given election notice
(1) A person is a
non‑participating party to a proceeding if:
(a) the person is a party to the proceeding (other than the applicant); and
(b) the proceeding relates to a decision for which the person is the decision‑maker; and
(c) the proceeding is of a kind for which the person has given an election notice under paragraph 60(1)(a); and
(d) the proceeding is not a guidance and appeals panel proceeding; and
(e) any conditions prescribed by the rules for the purposes of this paragraph are satisfied; and
(f) the Tribunal has not decided under section 62 that the person is to participate in the proceeding; and
(g) the Tribunal has not ordered the person to participate in the proceeding under section 63.
(1A) A person is a
non‑participating party to a Tribunal case event in relation to a proceeding if:
(a) the person is a party to the proceeding (other than the applicant); and
(b) the proceeding relates to a decision for which the person is the decision‑maker; and
(c) the Tribunal case event and proceeding are of a kind for which the person has given an election notice under paragraph 60(1)(b); and
(d) the proceeding is not a guidance and appeals panel proceeding; and
(e) any conditions prescribed by the rules for the purposes of this paragraph are satisfied; and
(f) the Tribunal has not decided under section 62 that the person is to participate in the Tribunal case event; and
(g) the Tribunal has not ordered the person to participate in the Tribunal case event under section 63.
Note: A non‑participating party remains a party to the proceeding and still needs to comply with this Act and orders of the Tribunal in relation to the proceeding. However, certain requirements do not apply to the party (see, for example, section 83 which deals with removal of a party for failure to appear or non‑compliance).
(2) To avoid doubt, once the Tribunal decides under section 62 that a person is to participate in a proceeding or Tribunal case event, or orders the person to participate in a proceeding or Tribunal case event under section 63, the person is no longer a non‑participating party to the proceeding or Tribunal case event and a new election notice does not affect this.
Prescribed circumstances
(3) A person is also a
non‑participating party to a proceeding or Tribunal case event in the circumstances prescribed by the rules.
(1) If a non‑participating party to a proceeding gives the Tribunal written notice (a
participation notice ) that the party wishes to participate in the proceeding, the Tribunal must decide whether or not the party is to participate in the proceeding.Note: An election notice relates to a kind of proceeding. A participation notice relates to a particular proceeding of that kind. The election notice continues to apply to other proceedings of that kind.
(1A) If a non‑participating party to a Tribunal case event gives the Tribunal written notice (a
participation notice ) that the party wishes to participate in the Tribunal case event, the Tribunal must decide whether or not the party is to participate in the Tribunal case event.Note: An election notice relates to a kind of Tribunal case event in relation to a kind of proceeding. A participation notice relates to a particular Tribunal case event of that kind. The election notice continues to apply to other Tribunal case events of that kind in relation to proceedings of that kind.
(2) A participation notice is not a legislative instrument.
Written submissions may be provided
(1) A non‑participating party to a proceeding may give the Tribunal written submissions in relation to the proceeding.
(1A) A non‑participating party to a Tribunal case event may give the Tribunal written submissions in relation to the Tribunal case event.
Tribunal may order non‑participating party to participate, appear or provide written submissions
(2) The Tribunal may order a non‑participating party to a proceeding or Tribunal case event in relation to a proceeding to do any one or more of the following, if the Tribunal considers it would assist in progressing the proceeding or in making the correct or preferable decision:
(a) appear before the Tribunal at a Tribunal case event in relation to the proceeding;
(b) give the Tribunal written submissions in relation to the proceeding or a Tribunal case event in relation to the proceeding;
(c) participate in the proceeding.
(1) The rules may provide for or in relation to:
(a) the operation of sections 60 to 63; and
(b) the operation of this Part in relation to parties who are or who have been non‑participating parties to proceedings or Tribunal case events.
(2) Without limiting the scope of rules that may be made for the purposes of subsection (1), the rules may provide for the following:
(a) requirements for giving election notices or participation notices;
(b) publication of election notices or participation notices;
(c) matters relating to steps in a proceeding taken while a person is a non‑participating party to the proceeding or a Tribunal case event in relation to the proceeding.
General rule
(1) The Tribunal may order that a party to a proceeding in the Tribunal ceases to be a party to the proceeding if the party gives written notice to the Tribunal that the party wishes to cease being a party to the proceeding.
Exceptions—applicant and decision‑maker
(2) However, subsection (1) does not apply in relation to the following parties:
(a) in any case—the applicant;
(b) if the proceeding relates to a decision—the decision‑maker.
Note: The applicant may withdraw the application (see section 95).
General rules
(1) A party to a proceeding in the Tribunal may choose another person to represent the party in the proceeding.
(2) A person who is required or permitted to appear before the Tribunal may, with the permission of the Tribunal, choose another person to represent the person before the Tribunal.
Exception
(3) However, the Tribunal may order that a person is not to be represented by the person’s representative if the Tribunal considers that:
(a) the representative has a conflict of interest in representing the person; or
(b) the representative is not acting in the best interests of the person; or
(c) representation of the person by the representative presents a safety risk to any person; or
(d) representation of the person by the representative presents an unacceptable privacy risk to any person; or
(e) the representative is otherwise impeding the Tribunal.
Note: A party to the proceeding can choose another representative. A person required or permitted to appear before the Tribunal can seek the Tribunal’s permission to choose another representative.
Appointment of litigation supporter
(1) The Tribunal may, by order, appoint a person to be a litigation supporter for a party to a proceeding in the Tribunal if the Tribunal considers that:
(a) the party does not have decision‑making ability; and
(b) the appointment is necessary, taking into account the availability and suitability of other measures that would allow the party to participate in the proceeding.
(1A) In considering whether to make an order under subsection (1), it is to be presumed that a party to a proceeding has decision‑making ability.
(1B) The presumption is not rebutted solely on the basis that a party has a disability.
(2) In appointing a person to be a litigation supporter for a party to a proceeding, the Tribunal must take into account:
(a) the party’s will and preferences, or likely will and preferences, in relation to:
(i) whether the Tribunal should appoint a person to be a litigation supporter; and
(ii) who the Tribunal should appoint to be a litigation supporter; or
(b) if the party’s will and preferences, or likely will and preferences, cannot be ascertained—the personal and social wellbeing of the party.
(3) The Tribunal may appoint a person to be a litigation supporter for a party to a proceeding only if:
(a) the person is at least 18 years old; and
(b) the person has no conflict of interest in representing the party; and
(c) the person consents to the appointment; and
(d) the Tribunal considers that the person is able to meet the requirements in subsections (6) to (8); and
(e) any conditions prescribed by the rules for the purposes of this paragraph are satisfied.
(4) The Tribunal may appoint a person to be a litigation supporter for a party whether or not the party has a guardian or representative appointed under another law.
Role of litigation supporter
(5) If a party to a proceeding in the Tribunal has a litigation supporter:
(a) the party may participate in the proceeding:
(i) wherever possible—with the support of the litigation supporter; or
(ii) otherwise—by the litigation supporter; and
(b) the litigation supporter must do anything required to be done by the party in relation to the proceeding by an Act or an instrument under an Act; and
(c) the litigation supporter may do anything permitted to be done by the party in relation to the proceeding by an Act or an instrument under an Act.
Duty of litigation supporter
(6) If a party to a proceeding in the Tribunal has a litigation supporter, the litigation supporter must give effect to the party’s will and preferences, or likely will and preferences, in relation to the proceeding.
(7) However, if to do so would pose a serious risk to the party’s personal and social wellbeing, the litigation supporter must instead act in a manner that promotes the personal and social wellbeing of the party.
(8) If the party’s will and preferences, or likely will and preferences, cannot be ascertained, the litigation supporter must act in a manner that promotes the personal and social wellbeing of the party.
Resignation and removal of litigation supporter
(9) A litigation supporter may resign by giving the Tribunal a written resignation.
(10) The Tribunal may, by order, remove a party’s litigation supporter if:
(a) the party requests a different person be appointed to be a litigation supporter for the party; or
(b) the Tribunal considers that the party has decision‑making ability; or
(c) the Tribunal considers that:
(i) the litigation supporter has a conflict of interest in representing the party; or
(ii) the litigation supporter has not complied with subsections (6) to (8); or
(iii) representation of the party by the litigation supporter presents a safety risk to any person; or
(iv) representation of the party by the litigation supporter presents an unacceptable privacy risk to any person; or
(v) the litigation supporter is otherwise impeding the Tribunal.
Rules
(11) The rules may provide for matters relating to litigation supporters.
(12) Without limiting the scope of rules that may be made for the purposes of subsection (11), the rules may provide for or in relation to the following:
(a) costs relating to litigation supporters;
(b) giving documents to a litigation supporter or a party who has a litigation supporter.
Tribunal may appoint interpreter on request
(1) A person appearing at a Tribunal case event may request the Tribunal to appoint an interpreter for the person.
(2) The Tribunal must comply with the request unless the Tribunal considers that the person does not require an interpreter for the purposes of:
(a) communication with the Tribunal; or
(b) understanding evidence and submissions given to the Tribunal.
Tribunal must appoint interpreter in certain circumstances
(3) If:
(a) the Tribunal considers that a person appearing at a Tribunal case event requires an interpreter for the purposes of:
(i) communication with the Tribunal; or
(ii) understanding evidence and submissions given to the Tribunal; and
(b) the person does not request the Tribunal to appoint an interpreter;
the Tribunal must, on its own initiative, appoint an interpreter for the purposes of communication between the person and the Tribunal.
Conflict of interest
(4) The Tribunal may appoint a person to be an interpreter for another person only if the person has no conflict of interest in acting as an interpreter for the other person.
Tribunal may appoint interpreters in other situations
(5) Subsections (2) and (3) do not limit the power of the Tribunal to appoint an interpreter.
Oath or affirmation for interpreter
(6) The Tribunal may require an interpreter appointed by the Tribunal to take an oath or make an affirmation. A member or a staff member may administer an oath or affirmation to the interpreter.
(7) The oath or affirmation is an oath or affirmation that the interpretation the interpreter will give will be true.
General rule
(1) The hearing of a proceeding in the Tribunal must be in public.
Note: The hearing of a proceeding is the substantive hearing of the matter before the Tribunal. Directions hearings do not need to be in public (see the definition of
hearing of a proceeding in section 4).
Exception—practice directions may require private hearing
(2) Despite subsection (1), in the circumstances specified in the practice directions:
(a) the hearing or part of the hearing is to take place in private; and
(b) only the persons specified in the practice directions may be present.
Exception—Tribunal may require private hearing
(3) Despite subsection (1), the Tribunal may, by order:
(a) direct that the hearing or part of the hearing is to take place in private; and
(b) give directions in relation to the persons who may be present.
Note: The power must be exercised in accordance with section 71.
Information about parties, witnesses and others
(1) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:
(a) information tending to reveal the identity of:
(i) a party to or witness in a proceeding in the Tribunal; or
(ii) any person related to or otherwise associated with any party to or witness in a proceeding in the Tribunal; or
(b) information otherwise concerning a party, witness or other person mentioned in paragraph (a).
Note 1: The power must be exercised in accordance with section 71.
Note 2: Breach of a non‑publication or non‑disclosure order is an offence (see section 119).
(c) were included in the particular class of persons; and
(d) obtained the information in the performance or exercise of functions or powers under the Act or instrument.
(2) Paragraph (1)(a) applies whether the provision prohibits the disclosure of information absolutely, in certain circumstances only or subject to conditions.
General rule
(1) The Minister may, in writing, delegate the Minister’s functions or powers under this Act to:
(a) the Secretary of the Department; or
(b) the President.
Exception—functions and powers that must not be delegated
(2) Despite subsection (1), the Minister must not delegate a function or power the Minister has under section 295 (rules).
Secretary of the Department must comply with directions
(3) In performing or exercising a function or power delegated under this section, the Secretary of the Department must comply with any written directions of the Minister.
Interaction with the Law Officers Act 1964
(4) This section does not affect or limit the operation of section 17 of the
Law Officers Act 1964 in relation to a function or power under:
(a) section 59 (Attorney‑General of the Commonwealth may become a party) of this Act; or
(b) section 294 (legal or financial assistance) of this Act.
Note: Section 17 of the
Law Officers Act 1964 provides for the Attorney‑General to delegate any of the Attorney‑General’s powers or functions.
General rule
(1) The President may, in writing, delegate the President’s functions or powers under this Act, another Act or an instrument made under an Act to:
(a) a member; or
(b) the Principal Registrar; or
(c) a registrar; or
(d) a staff member.
Exception—functions and powers that must not be delegated
(2) Despite subsection (1), the President must not delegate:
(a) a function or power the President has because the President is:
(i) a member of the Tribunal as constituted for the purposes of a proceeding; or
(ii) a Council member; or
(iii) authorised under section 281 to perform or exercise the function or power; or
(b) a function or power under a provision listed in the following table.
1 | section 14 | decision‑maker |
2 | Division 3 of Part 4 | practice directions |
3 | subsection 109(2) | Tribunal guidance decisions |
4 | Division 5 of Part 7 | referring questions of law |
5 | section 196 | jurisdictional areas and lists |
6 | section 197 | jurisdictional area leaders |
7 | section 199 | assignment of members to jurisdictional areas |
8 | section 200 | President may give directions to members |
9 | section 201 | code of conduct |
10 | section 202 | performance standard |
11 | subsection 203(3) | President may restrict member’s duties |
12 | section 222 | President must notify Minister about grounds for termination |
13 | Subdivision B of Division 4 of Part 8 | appointment and functions of Principal Registrar |
Delegates must comply with directions
(3) In performing or exercising a function or power delegated under this section, the delegate must comply with any written directions of the President.
General rule
(1) The Principal Registrar may, in writing, delegate the Principal Registrar’s functions or powers under this Act, another Act or an instrument made under an Act to a registrar or staff member.
Exception—functions and powers that must not be delegated
(2) Despite subsection (1), the Principal Registrar must not delegate a function or power that the Principal Registrar has because the Principal Registrar is authorised under section 283 to perform or exercise the function or power.
Delegates must comply with directions
(3) In performing or exercising a function or power delegated under this section, the delegate must comply with any written directions of the Principal Registrar.
(1) A function or power of the Tribunal in relation to a proceeding may be performed or exercised as follows:
(a) by the Tribunal as constituted for the purposes of the proceeding;
(b) before the start of the hearing of the proceeding—by:
(i) the President; or
(ii) an authorised person;
(c) after the start of the hearing of the proceeding—by an authorised person, but only as approved by the Tribunal as constituted for the purposes of the proceeding;
(ca) for a function or power under subsection 114(1) to alter the text of a decision or statement of reasons for a decision—by the person who made the decision;
(d) for a function or power under subsection 114(1) to alter the text of a decision or statement of reasons for a decision—by an authorised person, but:
(i) only as approved by the President; and
(ii) not if the Tribunal as constituted for the purposes of the proceeding or the person who made the decision is available;
(e) for a function or power under section 102 (reinstatement of application), subsection 115(2) (taxing costs) or a provision mentioned in paragraph 286(a)—by an authorised person at any time.
(2) To avoid doubt, the paragraphs of subsection (1) do not limit each other.
(3) For the purposes of paragraph (1)(c) and subparagraph (1)(d)(i), an approval does not need to be in writing.
Authorised person must comply with President’s directions
(1) In performing or exercising a function or power of the Tribunal, an authorised person must comply with any directions given by the President under this section.
(2) If the direction is made in writing, the direction is not a legislative instrument.
Applying opinion, belief or state of mind
(3) If performing or exercising a function or power of the Tribunal depends on the Tribunal’s opinion, belief or state of mind in relation to a matter, the President or an authorised person may perform or exercise the function or power on the opinion, belief or state of mind of the President or authorised person in relation to the matter.
The President may, in writing, authorise the Principal Registrar to perform or exercise a function or power of the Tribunal if:
(a) the President could authorise:
(i) a registrar to perform or exercise the function or power of the Tribunal (see section 285); or
(ii) a staff member to perform or exercise the function or power of the Tribunal (see section 286); or
(b) the rules prescribe that the Principal Registrar may be authorised to perform the function or exercise the power.
(1) The President may, in writing, authorise a member to perform or exercise a function or power of the Tribunal if:
(a) the President could authorise:
(i) a registrar to perform or exercise the function or power (see section 285); or
(ii) a staff member to perform or exercise the function or power (see section 286); or
(b) the rules prescribe that a member may be authorised to perform or exercise the function or power; or
(c) the function or power is a function or power under a provision listed in the following table.
1 | Part 3 | starting a review |
2 | Division 5 of Part 4 | Tribunal procedure |
3 | section 69 | hearings to be in public unless practice directions or Tribunal order requires otherwise |
4 | section 70 | Tribunal may restrict publication or disclosure of information |
6 | section 78 | inspection of documents produced under summons |
7 | Subdivision B of Division 6 of Part 4 | management of proceedings |
8 | Subdivision A of Division 8 of Part 4 | withdrawing and dismissing applications |
9 | section 105 | Tribunal decision on review of reviewable decision |
10 | section 107 | when Tribunal’s decision on review comes into operation |
10A | section 108 | effect of Tribunal decision to vary or substitute a reviewable decision |
11 | Division 10 of Part 4 | after proceeding ends |
12 | section 127 | Tribunal decision continues to operate unless Tribunal orders otherwise |
14 | Division 5 of Part 7 | referring questions of law |
(2) However, a function or power of the Tribunal under section 54, 105, 107, 108, 111 or 163 may be performed or exercised by a member if and only if it relates to the performance or exercise of a function or power by the member under section 103.
(1) The President may, in writing, authorise a registrar to perform or exercise a function or power of the Tribunal if:
(a) the President could authorise a staff member to perform or exercise the function or power (see section 286); or
(b) the rules prescribe that a registrar may be authorised to perform or exercise the function or power; or
(c) the function or power is a function or power under a provision listed in the following table.
1 | Division 3 of Part 3 | applying for review of decision |
2 | Subdivision A of Division 4 of Part 3 | parties to proceeding |
3 | section 24 | decision‑maker must give Tribunal additional statement if Tribunal requires—general rule |
4 | section 26 | decision‑maker must give Tribunal additional documents on request—general rule |
5 | section 28 | Exceptions—Tribunal may adjust requirements |
6 | section 31 | decision cannot be altered outside Tribunal process |
7 | section 54 | Tribunal can exercise powers of decision‑maker |
8 | section 65 | certain parties may seek to withdraw from being a party |
9 | subsection 66(2) | representation before Tribunal |
10 | section 68 | Tribunal may appoint interpreter |
11 | section 73 | how a party may appear at a Tribunal case event |
12 | section 74 | Tribunal may summon person to give evidence or produce documents |
12A | section 75 | Tribunal may take evidence |
12B | section 76 | taking evidence on oath or affirmation |
13 | subsection 78(1) | inspection of documents produced under summons |
14 | Subdivision B of Division 6 of Part 4 | management of proceedings |
15 | Subdivision C of Division 6 of Part 4 | dispute resolution processes |
16 | section 96 | Tribunal may dismiss application if parties consent |
17 | section 97 | Tribunal must dismiss application if decision is not reviewable decision |
18 | section 98 | Tribunal may dismiss application if fee is not paid |
19 | section 100 | Tribunal may dismiss application if applicant fails to comply with order etc. |
20 | Subdivision B of Division 8 of Part 4 | decisions agreed by parties |
21 | section 105 | Tribunal decision on review of reviewable decision |
22 | section 107 | when Tribunal’s decision on review comes into operation |
22A | section 108 | effect of Tribunal decision to vary or substitute a reviewable decision |
23 | section 111 | notice of decision and statement of reasons—review of reviewable decision |
24 | section 112 | notice of decision and statement of reasons—other proceedings |
25 | section 115 | taxing costs |
29 | Division 3 of Part 10 | decision‑makers to give reasons for decisions |
(2) However:
(a) a function or power of the Tribunal under paragraph 22(1)(c) or section 83 must not be performed or exercised in relation to a proceeding by a registrar after the start of the hearing of the proceeding; and
(b) a function or power of the Tribunal under section 54, 105, 107, 108 or 111 may be performed or exercised by a registrar if and only if it relates to the performance or exercise of a function or power by the registrar under section 103.
The President may, in writing, authorise a staff member to perform or exercise a function or power of the Tribunal if:
(a) it is a function or power of the Tribunal under:
(i) subsection 21(2) (parties and potential parties to be notified of application); or
(ii) subsection 22(3) (parties to proceeding for review); or
(iii) section 72 (Tribunal must notify parties of Tribunal case event); or
(iv) section 126 (parties to be notified of application); or
(v) section 139 (additional persons to be notified of applications for review); or
(b) the rules prescribe that a staff member may be authorised to perform or exercise the function or power.
An authorisation by the President under this Subdivision is subject to any conditions specified in the authorisation.
If another Act or an instrument made under an Act so provides, the Tribunal may give an advisory opinion on a matter or question referred to it in accordance with the Act or instrument and, for the purpose of giving such an opinion, the Tribunal may hold such hearings and inform itself in such manner as it considers appropriate.
(1) A requirement in any of the following provisions of this Act that a thing be done in writing is taken to have been met if the thing is done by electronic communication (within the meaning of the
Electronic Transactions Act 1999 ) in the manner specified in the practice directions:
(a) Division 4 of Part 3 (after an application is made);
(b) Part 4 (proceedings);
(c) Part 5 (guidance and appeals panel);
(d) Part 6 (proceedings in Intelligence and Security jurisdictional area);
(e) section 270 (applying to Tribunal to obtain reasons for reviewable decision);
(f) section 271 (applying to Tribunal to obtain adequate statement of reasons);
(g) this Division.
(2) A requirement in another Act or an instrument under an Act that information be given in writing to the Tribunal or a person for the purposes of a proceeding in the Tribunal is taken to have been met if the information is given by electronic communication (within the meaning of the
Electronic Transactions Act 1999 ) in the manner specified in the practice directions.(3) Subsection (1) or (2) does not apply if Division 2 of Part 2 of the
Electronic Transactions Act 1999 applies to the requirement.
(1) A document or thing that is required or permitted by this Act or any other law to be produced or given to the Tribunal must be produced or given in accordance with the requirements (if any) in:
(a) the practice directions; and
(b) the rules.
(2) A document or thing that is required or permitted by this Act or any other law to be produced or given to a person for the purposes of a proceeding in the Tribunal must be produced or given in accordance with the requirements (if any) in:
(a) the practice directions; and
(b) the rules.
When section applies
(1) This section applies if the Tribunal or any person is permitted or required under this Act to give a document or thing in relation to a decision to the decision‑maker for the decision.
Giving documents etc. to Secretary
(2) The Tribunal or person may instead give the document or thing to the Secretary of the Department administered by the Minister who administers:
(a) the Act under which the decision was made; or
(b) if the decision was made under an instrument—the Act under which the instrument is made.
Giving documents etc. to holder of office
(3) If the holder of a particular office is prescribed by the rules, an Act or an instrument made under an Act as a person to whom documents or things may be given under this Act in relation to a class of decisions that includes the decision, the Tribunal or person may instead give the document or thing to the holder of that office.
Note: Sections 28A and 29 of the
Acts Interpretation Act 1901 deal with the manner in which the documents may be given.
If the period of time for doing anything:
(a) under this Act, any other Act or an instrument made under an Act; or
(b) in accordance with an order of the Tribunal;
in relation to a proceeding in the Tribunal is less than 7 days, do not count any day on which the registry of the Tribunal concerned is not open to the public in working out whether the period has ended.
Tribunal personnel
(1) Each of the following has the same protection and immunity as a Justice of the High Court:
(a) a member, in the performance of the member’s duties;
(b) the Principal Registrar, in the performance of the Principal Registrar’s duties under Part 3 (starting a review), Part 4 (proceedings), Part 5 (guidance and appeals panel), Part 6 (proceedings in Intelligence and Security jurisdictional area) or Part 7 (appeals and references of questions of law to Federal Court);
(c) an authorised person, in the performance of the person’s duties as an authorised person;
(d) a person conducting a dispute resolution process under this Act, in conducting the dispute resolution process.
Representatives
(2) A legal practitioner or other person appearing before the Tribunal on behalf of a party has the same protection and immunity as a barrister appearing for a party in proceedings in the High Court.
Witnesses
(3) Subject to this Act, a person appearing before the Tribunal to give evidence has the same protection, and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the High Court.
Applicants to Tribunal
(1) A person who applies, or proposes to apply, to the Tribunal for review of a reviewable decision may apply to the Attorney‑General of the Commonwealth for assistance in respect of the proceeding in relation to the application to the Tribunal.
(2) A person who makes an application, or proposes to make an application, to refer a decision of the Tribunal to the guidance and appeals panel (a
leave application ) may apply to the Attorney‑General of the Commonwealth for assistance in respect of the leave application and the proceeding in relation to the guidance and appeals panel application (if any) taken to be made because of the referral.
Other parties to Tribunal proceedings
(3) A person who is, or proposes to become, a party to a proceeding in the Tribunal may apply to the Attorney‑General of the Commonwealth for assistance in respect of the proceeding.
Court proceedings
(4) A person who:
(a) institutes, or proposes to institute; or
(b) is, or proposes to become, a party to;
a proceeding in a court in respect of a matter arising under this Act may apply to the Attorney‑General of the Commonwealth for assistance in respect of the proceeding.
Exceptions—proceedings prescribed by the rules
(5) Subsections (1) to (4) do not apply in relation to a kind of proceeding prescribed by the rules.
(6) Subsection (2) does not apply in relation to a kind of leave application prescribed by the rules.
Provision of assistance
(7) If the Attorney‑General of the Commonwealth considers that:
(a) it would involve hardship to the person to refuse the person’s application; and
(b) in all the circumstances, it is reasonable that the person’s application should be granted;
the Attorney‑General may authorise the provision by the Commonwealth to the person of legal or financial assistance determined by the Attorney‑General in respect of the proceeding.
(8) The legal or financial assistance is subject to any conditions determined by the Attorney‑General of the Commonwealth.
Time for making applications not affected
(9) Nothing done under, or for the purposes of, this section extends a period for making an application to the Tribunal.
(1) The Minister must cause to be conducted a review into the operation of this Act and any Act dealing with consequential or transitional matters arising from the enactment of this Act.
(2) Without limiting subsection (1), the review must include consideration of:
(a) whether the Tribunal is achieving the objective in section 9; and
(b) any other matters relating to the operation of this Act determined by the Minister.
(3) The review must start within the 3 months before the fifth anniversary of the commencement of this Act.
(4) The review must be undertaken by one or more persons (the
reviewers ) who, in the Minister’s opinion, have appropriate expertise in administrative review.(5) The review must include consultation with the Council, members of the public, Tribunal users and any other person or organisation the reviewers consider appropriate.
(6) The reviewers must give the Minister a written report on the review within 12 months after the fifth anniversary of the commencement of this Act.
(7) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.
Within 3 months after the President informs a Minister or Commonwealth entity in writing of a systemic issue related to the making of reviewable decisions that has been identified in the caseload of the Tribunal, the Minister or entity must inform the Council of the action the Minister or entity has taken or proposes to take in relation to the systemic issue.
Note: For the President’s functions in relation to systemic issues, see paragraph 193(i). For the Council’s functions and reports in relation to systemic issues, see paragraph 249(1)(c) and section 264.
(1) The Minister may, by legislative instrument, make rules prescribing matters:
(a) required or permitted by this Act to be prescribed by the rules; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
(3) Rules that are inconsistent with the regulations have no effect to the extent of the inconsistency, but rules are taken to be consistent with the regulations to the extent that the rules are capable of operating concurrently with the regulations.
(4) The rules may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, a matter contained in the practice directions:
(a) as in force or existing at a particular time; or
(b) as in force or existing from time to time.
(5) Subsection (4) has effect despite anything in subsection 14(2) of the
Legislation Act 2003 .(6) Before making rules affecting the practice, procedure or operations of the Tribunal, the Minister must consult the President.
(1) The Tribunal may, on behalf of the Commonwealth, charge fees in accordance with the rules.
(2) The rules may provide for fees to be payable in respect of the following:
(a) applications to the Tribunal (including applications taken to be made to the Tribunal);
(b) applications to the President;
(c) taxation of costs by the Tribunal;
(d) proceedings in the Tribunal;
(e) services provided by the Tribunal.
(3) Without limiting the scope of rules that may be made for the purposes of subsection (2), those rules may prescribe, or prescribe matters relating to, any or all of the following:
(a) the circumstances in which a fee is to be paid;
(b) who must pay;
(c) the time when payment is required;
(d) remittal, refund and waiver of fees.
(4) Rules made for the purposes of subsection (2) may do any or all of the following:
(a) prescribe fees in respect of a particular class or classes of applications, costs, proceedings or services;
(b) prescribe different fees in respect of different classes of applications, costs, proceedings or services;
(c) prescribe the amount of, or a method for working out the amount of, a fee;
(d) make provision in relation to the whole or a part of a fee;
(e) provide for the Tribunal to make orders relating to the payment of a fee in relation to a proceeding.
(5) A fee must not be such as to amount to taxation.
(6) A fee charged under subsection (1):
(a) is a debt due to the Tribunal, on behalf of the Commonwealth; and
(b) is recoverable by the Tribunal, on behalf of the Commonwealth, in a court of competent jurisdiction.
(1) The Governor‑General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed by the regulations; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Norfolk Island enactments
(2) The regulations may provide for:
(a) applications to be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment; and
(b) such modifications to the operation of this Act as are necessary to provide for, and in relation to, the review of those decisions in like manner to the review of equivalent reviewable decisions under this Act; and
(c) the Tribunal to give an advisory opinion on a matter or question referred to it under a Norfolk Island enactment.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Administrative Review Tribunal Act 2024 | 40, 2024 | 3 June 2024 | 14 Oct 2024 | |
Financial Framework (Supplementary Powers) Amendment Act 2024 | 27, 2024 | 30 May 2024 | Sch 1 (items 17, 18): 14 Oct 2024 (s 2(1) item 3) | — |
Administrative Review Tribunal (Consequential and Transitional Provisions No. 2) Act 2024 | 39, 2024 | 31 May 2024 | Sch 16: 14 Oct 2024 (s 2(1) item 3) | — |
Administrative Review Tribunal (Miscellaneous Measures) Act 2025 | 14, 2025 | 20 Feb 2025 | Sch 4 (items 1–8): 21 Feb 2025 (s 2(1) item 9) | — |
s 4............................................. | am No 39, 2024; No 14, 2025 |
s 25............................................ | am No 14, 2025 |
s 59............................................ | am No 27, 2024 |
s 84............................................ | am No 14, 2025 |
s 94............................................ | am No 14, 2025 |
s 135.......................................... | am No 39, 2024 |
s 137.......................................... | am No 39, 2024 |
s 138.......................................... | am No 39, 2024 |
s 140.......................................... | am No 39, 2024 |
s 145.......................................... | am No 39, 2024 |
s 146.......................................... | rep No 39, 2024 |
s 147.......................................... | am No 39, 2024 |
s 164.......................................... | rep No 39, 2024 |
s 165.......................................... | am No 39, 2024 |
s 174.......................................... | am No 14, 2025 |
s 237.......................................... | am No 14, 2025 |
s 243.......................................... | rs No 14, 2025 |
s 278.......................................... | am No 14, 2025 |
s 284.......................................... | am No 14, 2025 |
s 285.......................................... | am No 14, 2025 |
s 294.......................................... | am No 27, 2024 |
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