Administrative Appeals Tribunal Amendment (Fees) Regulation 2013

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Attorney-General’s
Administrative Appeals Tribunal Amendment (Fees) Regulation 2013

EXPLANATORY STATEMENT

Select Legislative Instrument 2013 No. 89

Issued under the Authority of the Attorney-General
in compliance with section 26 of the Legislative Instruments Act 2003

 

INTRODUCTION

This regulation is made under section 70 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

OUTLINE

This instrument amends the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations) as outlined below.

Time for Dismissing an Application for Failure to Pay Fee

The Access to Justice (Federal Jurisdiction) Amendment Act 2012, which received Royal Assent on 11 December 2012, inserted a new section 69C of the AAT Act to enable the Administrative Appeals Tribunal (Tribunal) to dismiss an application where an application fee has not been paid by the time worked out under the AAT Regulations.  This instrument amends the AAT Regulations to prescribe a period of six weeks.  However, the power to dismiss is discretionary, and the Tribunal can afford applicants extra time to pay an application fee in appropriate circumstances. 

This instrument also clarifies that, where an application fee is payable, it should be paid at the time an application is lodged.  However, if the fee is not paid at that time, the Tribunal is not required to deal with the application unless, and until, the fee is paid.

Application Fee Exemption for Decisions relating to National Disability Insurance Scheme

This instrument also adds decisions made under the National Disability Insurance Scheme Act 2013 (NDIS Act) to the list of reviewable decisions in relation to which no application fee is payable when an application is lodged with the Tribunal.  This will ensure that review by the Tribunal of such decisions will be as accessible as possible.  The fee exemption is also consistent with a number of articles in the Convention on the Rights of Persons with Disabilities, including articles 5 (right to equality and non-discrimination), 12 (right to equal recognition before the law) and 13 (right to access to justice).

Other Amendments

This instrument also updates references to other legislation contained in regulation 19 and Schedule 3 to the AAT Regulations to ensure they are current, following amendments to the relevant legislation. 

PROCESS BEFORE REGULATION WAS MADE

Regulatory impact analysis

Before this regulation was made, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR).  That assessment indicated that it would have no or low negative impact on business, individuals and the economy. This assessment has been confirmed by the OBPR (OBPR reference 14995).

Statement of compatibility with human rights obligations  

Before this regulation was made, its impact on human rights was assessed using tools and guidance published by the Attorney-General’s Department.  It is fully compatible with human rights as defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 

Consultation before making

The amendments in Schedule 1 of the regulation were considered by the Senate Legal and Constitutional Affairs Legislation Committee in their inquiry into the Access to Justice (Federal Jurisdiction) Amendment Bill 2011.  The Committee noted in its report that the amendments to the Tribunal’s fees were supported by the organisations that commented on those aspects of the Bill.

With regards to the fee exemption (Schedule 2, Item 2), extensive consultation has been undertaken with the disability sector by the Minister for Disability, the Hon Jenny Macklin MP, and the National Disability Insurance Scheme (NDIS) Taskforce.

The Department of Families, Housing, Community Services and Indigenous Affairs was consulted on the update to the reference to the Social Security Act 1991.  

OTHER ISSUES

Matter incorporated by reference

This regulation does not apply, adopt or incorporate other matter by reference.

More information

A provision by provision explanation of the regulation is provided in Attachment A.

A copy of the AAT Regulations and information about its history are available on the whole-of-government ComLaw website (http://www.comlaw.gov.au).

Further information about an instrument may be requested from the Attorney-General’s Department.

 


NOTES ON SECTIONS             ATTACHMENT A

Section 1 Name of regulation

This section provides for the regulation to be named as the Administrative Appeals Tribunal Amendment (Fees) Regulation 2013.  The regulation may be cited by that name.

Section 2  Commencement

This instrument has three commencement dates.

Sections 1 to 4 will commence on the day after it is registered on the Federal Register of Legislative Instruments.

Schedule 1 will commence on the day on which Schedule 5 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012 commences.

Schedule 2 will commence on 1 July 2013.

Section 3 Authority

This section identifies the Act that authorises the making of the regulation.

Section 4 Schedule(s)

This section is a formal section which specifies that each instrument specified in the Schedules is amended or repealed as per the contents of each Schedule.

Schedule 1 

Item 1 

This Item repeals existing subregulation 19(4).  This subregulation currently specifies that an application fee must be paid before lodging the application.  This subregulation is no longer required and is replaced by new subregulations 19(6B), (6C) and (6D).

Item 2 

This Item inserts new subregulations 19(6B), (6C) and (6D).

New subregulation 19(6B) specifies that the fee for lodging an application is payable at the time the application is lodged.

New subregulation 19(6C) states that, if the fee is not paid when the application is lodged, the Tribunal is not required to deal with the application unless, and until, the fee is paid.

New subregulation 19(6D) states that, if the fee is not paid within six weeks after the application is lodged, the Tribunal may dismiss the application.

Item 3 

Regulation 19AA relates to the prescribed fees payable in respect of taxation decisions.  Subregulation 19AA(3) currently specifies that an application fee must be paid before lodging the application to which it relates.  This subregulation is no longer required and is replaced by new subregulation 19AA(6C), (6D) and (6E).


Item 4

This Item inserts new subregulations 19AA(6C), (6D) and (6E) to specify the timeframe for paying fees in respect of taxation decisions.

New subregulation 19(6C) specifies that the fee for lodging an application for review is payable when the application is lodged.

New subregulation 19(6D) states that, if the fee is not paid when the application is lodged, the Tribunal is not required to deal with the application unless, and until, the fee is paid.

New subregulation 19(6E) states that, if the fee is not paid within six weeks after the application is lodged, the Tribunal may dismiss the application for review.

Schedule 2 

Item 1

This Item removes the reference to ‘section 55’ of the Freedom of Information Act 1982 (FOI Act) in subregulation 19(2) which defines decisions under the FOI Act in relation to which no fee is payable when an application is lodged with the Tribunal.  Following amendment of the FOI Act, this is an out-dated reference to that Act.  This amendment will make clear that no application fee is payable when an application is lodged with the Tribunal for review of a decision under the FOI Act in relation to a document that relates to a decision specified in Schedule 3 to the AAT Regulations.

Item 2 

This Item prescribes decisions made under the National Disability Insurance Scheme Act 2013 as decisions in relation to which no application fee is payable when an application for review is lodged with the Tribunal.

Item 3

Item 9A in Schedule 3 to the AAT Regulations currently specifies that decisions made under the social security law within the meaning of subsection 23(15) of the Social Security Act 1991, are prescribed decisions for the purposes of subregulation 19(2) and therefore no application fee is payable when an application for review is lodged with the Tribunal.  At the time Item 9A of Schedule 3 was included in the AAT Regulations, subsection 23(15) of the Social Security Act contained the definition of ‘social security law’.  Following amendment of the Social Security Act, that definition was moved to subsection 23(17).  This Item amends item 9A in Schedule 3 to ensure the reference is to the correct subsection.  This amendment has no substantive effect on the current decisions which are not subject to an application fee.

 

 

Overview

The Administrative Appeals Tribunal Amendment (Fees) Regulation 2013 was enacted to address the need for updating the fee structure and related procedures within the Administrative Appeals Tribunal (AAT). This regulation was made under section 70 of the Administrative Appeals Tribunal Act 1975 and complements the Access to Justice (Federal Jurisdiction) Amendment Act 2012. Its primary policy objective is to ensure the timely payment of application fees while maintaining the accessibility of the tribunal for those who might otherwise be disadvantaged. Specifically, the regulation sets a six-week period for applicants to pay their fees, with the tribunal retaining the discretion to extend this period in certain circumstances. Additionally, it exempts application fees for decisions made under the National Disability Insurance Scheme Act 2013, aligning with human rights commitments and enhancing access to justice for persons with disabilities. The regulation also updates references to other legislation to ensure compliance with current laws.

Scope and Application

The Administrative Appeals Tribunal Amendment (Fees) Regulation 2013 amends the Administrative Appeals Tribunal Regulations 1976 under the authority of section 70 of the Administrative Appeals Tribunal Act 1975. It applies to the Administrative Appeals Tribunal and the decisions it reviews, including those related to the National Disability Insurance Scheme Act 2013. The regulation sets out the timeframe for applicants to pay fees, clarifies that fees should be paid at the time of lodging an application, and gives the Tribunal the discretionary power to dismiss an application if the fee is not paid within six weeks. Additionally, the regulation exempts certain decisions, particularly those under the National Disability Insurance Scheme Act 2013, from requiring an application fee. The regulation does not extend or restrict its application through subordinate instruments and contains no exclusions, exemptions, or thresholds beyond those specified. The regulation commenced on different dates for different schedules, with the primary amendments related to fees commencing alongside the Access to Justice (Federal Jurisdiction) Amendment Act 2012.

Key Provisions

The Attorney-General’s Administrative Appeals Tribunal Amendment (Fees) Regulation 2013 (the Regulation) primarily amends the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations) to update and clarify the fee requirements for applications to the Administrative Appeals Tribunal (Tribunal). Section 1 of the Regulation names it as the Administrative Appeals Tribunal Amendment (Fees) Regulation 2013. Sections 2 and 3 outline the commencement dates and authority for the Regulation, respectively, while Section 4 specifies the schedules that amend or repeal existing regulations. The Regulation imposes several obligations on parties lodging applications with the Tribunal. According to Schedule 1, Item 1, the application fee must be paid at the time the application is lodged (subregulation 19(6B)). If the fee is not paid at that time, the Tribunal is not required to deal with the application unless and until the fee is paid (subregulation 19(6C)). Moreover, if the fee is not paid within six weeks after the application is lodged, the Tribunal may dismiss the application (subregulation 19(6D)). These provisions apply equally to taxation decisions as outlined in Schedule 1, Item 3, with the same timelines and conditions for fee payment and dismissal. Additionally, the Regulation exempts certain decisions from application fees. Schedule 2, Item 2, specifies that decisions made under the National Disability Insurance Scheme Act 2013 (NDIS Act) are exempt from application fees. This amendment ensures that review of such decisions by the Tribunal is as accessible as possible, aligning with several articles of the Convention on the Rights of Persons with Disabilities. Schedule 2, Item 1, also clarifies that no application fee is payable for review of decisions under the Freedom of Information Act 1982, aligning with the current legislative framework. The Regulation sets out consequences for non-compliance with its provisions. If an application fee is not paid within the stipulated six-week period, the Tribunal has the discretion to dismiss the application (subregulations 19(6D) and 19AA(6E)). While the dismissal is discretionary, the Tribunal's power to dismiss an application for non-payment of fees provides a clear incentive for applicants to comply with the fee requirements. Non-compliance with the fee provisions, however, does not result in any direct criminal or civil penalties as outlined in the Regulation. Instead, the primary consequence is the potential dismissal of the application, which indirectly affects the applicant's ability to seek review of the decision in question.

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