Defence Honours and Awards Appeals Tribunal Procedural Rules 2021 (Cth)

Defence Honours and Awards Appeals Tribunal Procedural Rules 2021

made under section 110XH of the

Defence Act 1903

Compilation No. 1

Compilation date:14 December 2022

Includes amendments up to:F2022L01639

Registered:12 January 2023

About this compilation

This compilation

This is a compilation of the Defence Honours and Awards Appeals Tribunal Procedural Rules 2021 that shows the text of the law as amended and in force on 14 December 2022 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

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 Legislation 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 series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

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.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

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 series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.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

Part 1Preliminary1Name

This instrument is the Defence Honours and Awards Appeals Tribunal Procedural Rules 2021.

3Authority

This instrument is made under section 110XH of the Defence Act 1903.

4Definitions

Note 1: A number of expressions used in this instrument are defined in section 110T of the Act, including the following:

(a) Chair;

(b) defence award

(c) defence honour

(d) foreign award

(e) inquiry

(f) reviewable decision

(g) review of a reviewable decision

(h) Tribunal

(i) Tribunal member

(j) Tribunal proceeding.

Note 2: For the definition of Secretary, see subsection 4(1) of the Act.

In this instrument:

Act means the Defence Act 1903.

approved form means a form approved under rule 6.

audio link means facilities (for example, telephone facilities) that enable audio communication between persons in different places.

Regulations means the Defence Regulation 2016.

video link means facilities (for example, closed‑circuit television facilities) that enable audio and visual communication between persons in different places.

6Forms

1. (1)

   The Chair may approve forms for these procedural rules.

2. (2)

   Approved forms must be published on the Tribunal website.

Part 2Review of reviewable decisions by TribunalDivision 2.1Applications for review7Making applications

An application for review of a reviewable decision must be in accordance with an approved form.

8What Tribunal may do with applications

1. (1)

   The Tribunal may use the application to conduct its own research into the reviewable decision.

2. (2)

   The Tribunal’s research may include giving the application for comment to:

   1. (a)

      a person or organisation considered by the Tribunal to be appropriate; and

   2. (b)

      a person or organisation the subject of adverse comment in the application.

3. (3)

   For paragraph (2)(a), the grounds on which the Tribunal may decide that a person or organisation is appropriate include:

   1. (a)

      that the person or organisation has the capacity to assist with the review of the reviewable decision; and

   2. (b)

      that the person or organisation has an interest in the reviewable decision.

9Report by Secretary

1. (1)

   The Tribunal may give an application to the Secretary, or an office holder designated by the Secretary in writing from time to time and notified to the Tribunal (designated office holder).

2. (2)

   The Secretary or designated office holder may give the application for comment to:

   1. (a)

      a person in the Department; and

   2. (b)

      a person in the Defence Force.

3. (3)

   If the Secretary or designated office holder is given an application under subrule (1), the Secretary or designated office holder must give the Tribunal a report on the reviewable decision to which the application relates within:

   (a) if the application relates to a defence award, 30 working days after the day the Secretary or designated office holder receives the application;

   (b) if the application relates to a defence honour, 60 working days after the day the Secretary or designated office holder receives the application.

4. (4)

   The report must include the following:

   1. (a)

      the findings on material questions of fact and the reasons for the decision;

   2. (b)

      a reference to the evidence on which the findings were based;

   3. (c)

      if the evidence mentioned in paragraph (b) is in an unclassified document—a copy of the evidence;

   4. (d)

      each other unclassified document under the Department’s control or in the Department’s possession that is relevant to the reviewable decision.

5. (5)

   The Secretary or designated office holder must:

   1. (a)

      prepare a list of all classified documents under the Department’s control or in the Department’s possession that are relevant to the reviewable decision; and

   2. (b)

      give the list to a Tribunal member who holds a security clearance for accessing the documents within 30 working days after the day the Secretary or designated office holder receives the application; and

   3. (c)

      if a Tribunal member who holds a security clearance for accessing a document on the list requests access to the document—give that Tribunal member a specified number of copies of the document within 10 working days after the day the Secretary or designated office holder receives the request.

6. (6)

   The Tribunal may approve, in writing, a written request from the Secretary or designated office holder for more time to prepare the report or the list.

7. (7)

   The approval must state the additional time approved by the Tribunal.

10Applicant may respond to report

1. (1)

   After receiving a report mentioned in subrule 9(3), the Tribunal must:

   1. (a)

      give a copy of the report to the applicant within 10 working days; and

   2. (b)

      tell the applicant that the applicant may give the Tribunal a written response to the report within 20 working days after the day the applicant receives the report.

2. (2)

   The Tribunal may approve, in writing, a written request by the applicant for more time to prepare the response.

3. (3)

   The approval must state the additional time approved by the Tribunal.

11Other documents held by Department

1. (1)

   Subrule (2) applies if the Tribunal believes, on reasonable grounds, that not all of the documents under the Department’s control or in the Department’s possession have been:

   1. (a)

      included in a report provided to the Tribunal under subrule 9(4); or

   2. (b)

      listed for the Tribunal under paragraph 9(5)(a).

2. (2)

   The Tribunal may direct the Secretary or designated office holder:

   1. (a)

      to give the Tribunal a specified number of copies of a document identified by the Tribunal within a specified time; and

   2. (b)

      to search for further documents; and

   3. (c)

      to give the Tribunal a specified number of copies of the further documents within a specified time.

12Other documents held by other person or organisation

A person or organisation other than the Department must comply with a request by the Tribunal to provide a specified number of copies of a document within a specified time.

Division 2.2Conduct of reviews13Review hearing may be public or private

1. (1)

   Subject to a direction of the Chair or the presiding Tribunal member under subrule (2), a hearing of a review of a reviewable decision must be conducted in public.

2. (2)

   The Chair or the presiding Tribunal member may direct that the hearing be conducted:

   1. (a)

      in private; or

   2. (b)

      partly in public and partly in private.

3. (3)

   For subrule (2), the grounds on which the Chair or the presiding Tribunal member may decide that the hearing be conducted wholly or partly in private include the following:

   1. (a)

      that the matter under review is sensitive;

   2. (b)

      that privacy is required to ensure fairness to a person involved or mentioned in the review;

   3. (c)

      that the review involves matters of national security.

4. (4)

   The Chair or the presiding Tribunal member may give directions as to who may be present at a hearing that is conducted wholly or partly in private.

14Review may be conducted without a hearing

1. (1)

   The Chair may direct that a review of a reviewable decision may be conducted without a hearing.

2. (2)

   The Chair must not make a direction under subrule (1) unless the applicant and the Secretary have agreed that the review may be conducted without a hearing.

15Making oral submissions at review hearing

1. (1)

   The Tribunal:

   1. (a)

      must agree to a written request by an applicant to make an oral submission at a hearing of the review of a reviewable decision; and

   2. (b)

      may invite another person to make an oral submission at the hearing; and

   3. (c)

      may direct that an oral submission be made in person or by audio link or video link.

2. (2)

   The Tribunal may agree to a written request by the applicant that the applicant be represented at the hearing by another person.

3. (2A)

   The reference to another person in subrule (2) includes a reference to a legal practitioner.

4. (3)

   The reference to a legal practitioner in subrule (2A) includes a reference to a person who:

   1. (a)

      holds a degree of Bachelor of Laws, Master of Laws, Doctor of Laws or Bachelor of Legal Studies; or

   2. (b)

      is otherwise qualified for admission as a lawyer, barrister, solicitor or legal practitioner of the High Court or of the Supreme Court of a State or Territory.

16Secretary must assist Tribunal

The Secretary must use his or her best endeavours to assist the Tribunal in relation to the review.

17Making Tribunal’s decisions available

1. (1)

   Where a decision includes a recommendation to a Minister, the Tribunal must give that Minister and the Secretary and the applicant a copy of its decision on the review of a reviewable decision within a reasonable period after it has made the decision.

2. (2)

   Where a decision does not include a recommendation to a Minister, the Tribunal must give the Secretary and the applicant a copy of its decision on the review of a reviewable decision within a reasonable period after it has made the decision.

18Publication of Tribunal’s decisions

1. (1)

   If the hearing of the review was conducted wholly in public:

   1. (a)

      the Tribunal must publish the decision on its website; and

   2. (b)

      the published version of the decision must not contain classified material.

2. (2)

   If the hearing of the review was conducted wholly or partly in private:

   1. (a)

      the Chair must decide whether to publish the decision on the Tribunal’s website; and

   2. (b)

      any published version of the decision must not contain classified material.

3. (3)

   If the review was conducted without a hearing:

   1. (a)

      the Chair must decide whether to publish the decision on the Tribunal’s website; and

   2. (b)

      any published version of the decision must not contain classified material.

4. (4)

   The Chair may decide not to publish the name of an applicant or of a person to whom a recommendation relates or any other information that is likely to identify such a person, or to redact from the published version other personal information or sensitive information that the Chair considers it appropriate to withhold from publication.

5. (5)

   The published version shall be published on the website 20 working days after it is provided to the parties, or at a later date as determined by the Chair as necessary to allow consideration of issues referred to in subrule (4).

Part 3Inquiries by TribunalDivision 3.1Written submissions to inquiry19Public call for written submissions

1. (1)

   The Tribunal may call for written submissions to an inquiry.

2. (2)

   Unless the Chair decides otherwise, the call for written submissions must be published:

   1. (a)

      in a newspaper circulating nationally; and

   2. (b)

      in any other manner the Chair decides is appropriate.

3. (3)

   The closing date for written submissions must be at least 20 working days after the day of the first publication of the call for written submissions.

4. (4)

   The Tribunal may accept a written submission after the closing date.

20Making written submissions to inquiry

A written submission to an inquiry must be in accordance with an approved form.

21What Tribunal may do with written submissions

The Tribunal’s powers in relation to written submissions are the same as its powers in relation to an application mentioned in rule 8.

Division 3.2Conduct of inquiries22Inquiries to be public

1. (1)

   Subject to subrule (2), a hearing of an inquiry must be conducted in public.

2. (2)

   The Chair may direct that the hearing be conducted:

   1. (a)

      in private; or

   2. (b)

      partly in public and partly in private.

3. (3)

   For subrule (2), the grounds on which the Chair may decide that the hearing be conducted wholly or partly in private are those mentioned in subrule 13(3).

4. (4)

   The Chair may give directions as to who may be present at a hearing that is conducted wholly or partly in private.

23Tribunal may invite person to make oral submission

1. (1)

   The Tribunal may:

   1. (a)

      invite a person to make an oral submission at the hearing; and

   2. (b)

      direct that the person make the oral submission in person or by audio link or video link; and

   3. (c)

      agree to a written request by the person that the person be represented at the hearing by a person who is not a legal practitioner.

2. (2)

   The reference to a legal practitioner in paragraph (1)(c) includes a reference to a person mentioned in paragraph 15(3)(a) or (b).

Division 3.3Tribunal report on inquiry24Publication of report on inquiry

1. (1)

   The Tribunal must publish its report on the Tribunal website within 20 working days after the day it gives the report to the Minister under paragraph 110W(2)(b) of the Act.

2. (2)

   The published report must not contain classified material.

Part 4General provisions relating to operation of Tribunal25Procedure of Tribunal

1. (1)

   Subject to the Act and the Regulations, the procedure of the Tribunal is at the discretion of the Tribunal.

2. (2)

   The Tribunal must conduct its proceedings with as little formality and technicality, and with as much expedition, as the requirements of the Act and the Regulations and a proper consideration of the matters before the Tribunal permit.

3. (3)

   The Tribunal is not bound by the rules of evidence but may inform itself on any matter in any way it considers appropriate.

26Summons

1. (1)

   For paragraph 110XH(2)(h) of the Act, a summons must be in accordance with an approved form.

2. (2)

   Service of the summons on a person must be made by:

   1. (a)

      giving a copy of the summons to the person; and

   2. (b)

      at the same time as the copy is given to the person, showing the person the original of the summons.

27Oath or affirmation for witnesses

The Tribunal may require a person who gives evidence before the Tribunal to take an oath or make an affirmation.

28Recording of Tribunal proceedings

1. (1)

   The Tribunal may:

   1. (a)

      record a Tribunal proceeding; and

   2. (b)

      make a transcript of the recording for its own purposes.

2. (2)

   If the Tribunal records a Tribunal proceeding, the Tribunal must:

   1. (a)

      tell persons attending the proceeding that their evidence will be recorded; and

   2. (b)

      give a person who gives evidence at the proceeding an electronic copy of the person’s evidence on request.

29Adjournment of proceedings

The Tribunal may adjourn a Tribunal proceeding at any time.

30Tribunal powers in relation to documents

The Tribunal may:

1. (a)

   retain a document given to the Tribunal under a provision of these procedural rules or under subsection 110XC(1) of the Act for as long as the Tribunal considers necessary; and

2. (b)

   make copies of or take extracts from the document.

31Public Hearings

The Tribunal may, if it considers it appropriate, arrange for a hearing, or a part of a hearing, that is to be held in public to be broadcast by live‑streaming or other technology in order to allow members of the public not in attendance who wish to do so to observe proceedings at that hearing or that part of a hearing.

Endnotes

Endnote 1About the endnotes

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

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

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.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

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.

Misdescribed amendments

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 Legislation Act 2003.

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.

Endnote 2Abbreviation key

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 = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	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	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

Endnote 3Legislation history

Name	Registration	Commencement	Application, saving and transitional provisions
Defence Honours and Awards Appeals Tribunal Procedural Rules 2021	24 Sept 2021 (F2021L01318)	25 Sept 2021 (s 2)
Defence Honours and Awards Appeals Tribunal Amendment Procedural Rules 2022	13 Dec 2022 (F2022L01639)	14 Dec 2022 (s 2(1) item 1)	—

Endnote 4Amendment history

Provision affected	How affected
Part 1
s 2.............................................	rep LA s 48D
s 4.............................................	am F2022L01639
s 5.............................................	rep LA s 48C
Part 2
Division 2.1
s 9.............................................	am F2022L01639
s 10............................................

am F2022L01639

s 11............................................

am F2022L01639

Division 2.2

s 15............................................

am F2022L01639

s 18............................................

am F2022L01639

Part 3

Division 3.2

s 23............................................

am F2022L01639

Part 4

s 27............................................

rs F2022L01639

s 31............................................

ad F2022L01639

Schedule 1..................................

rep LA s 48C