EXPLANATORY STATEMENT
Select Legislative Instrument 2012 No. 7
Subject: Administrative Appeals Tribunal Act 1975
Administrative Appeals Tribunal Amendment Regulation 2012 (No. 1)
The purpose of the Administrative Appeals Tribunal Amendment Regulation 2012 (No. 1) (the Regulations) is to amend the Administrative Appeals Tribunal Regulations 1976 to confer jurisdiction on the AAT to review prescribed decisions made in the exercise of powers conferred by prescribed Norfolk Island enactments and make other related amendments.
The Administrative Appeals Tribunal Act 1975 (the AAT Act) establishes the Administrative Appeals Tribunal (the AAT). Section 25 of the AAT Act generally provides for the jurisdiction of the AAT. Subsection 25(2) of the AAT Act provides that the regulations may provide that applications may be made to the AAT for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment. The AAT Act relevantly defines Norfolk Island enactment to be ‘an enactment (within the meaning of the Norfolk Island Act 1979) (the NI Act). The NI Act relevantly defines enactment to be a law (however described or entitled) passed by the Legislative Assembly and assented to under the NI Act. Section 70 of the AAT Act provides that the Governor‑General may make regulations not inconsistent with the Act, prescribing all matters required or permitted by the AAT Act (subsection (1) of the AAT Act) and prescribing fees to be payable in respect of applications to the AAT (paragraphs 70(2)(a) and (b) of the AAT Act).
Consultation
The Regulations were developed in consultation with the AAT, the Department of Regional Australia, Regional Development and Local Government, officers from which liaised with officials on Norfolk Island, and also other relevant Commonwealth Departments.
Regulation Impact Statement
The Office of Best Practice Review advised (reference number 13242) that a Regulation Impact Statement for these Regulations is not required.
Details of the Regulation are set out in the Attachment.
The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on 1 March 2012.
ATTACHMENT
Details of the Administrative Appeals Tribunal Amendment Regulation 2012 (No. 1)
Regulation 1 – Name of regulation
This regulation provides that the name of the Regulation is the Administrative Appeals Tribunal Amendment Regulation 2012 (No. 1).
Regulation 2 – Commencement
This regulation provides for the Regulation to commence on 1 March 2012.
Regulation 3 – Amendment of Administrative Appeals Tribunal Regulations 1976
This regulation provides that schedule 1 amends the Administrative Appeals Tribunal Regulations 1976.
Schedule 1 – Amendments
Item [1] Subregulation 3(1)
Subregulation 3(1) of the Administrative Appeals Tribunal Regulations 1976 defines ‘the Act’ in the Regulations to be the Administrative Appeals Tribunal Act 1975 (AAT Act). Item [1] inserts a new definition into the Administrative Appeals Tribunal Regulations 1976 of ‘authorised officer’. ‘Authorised officer’ has a particular meaning for items of the table in part 2 of schedule 4. ‘Authorised officer’ is defined as a Registrar or Deputy Registrar appointed in accordance with section 12 of Supreme Court Act 1960 of the Territory of Norfolk Island. This definition relates to the new regulation 20B, which would be inserted by item [6], below.
Item [2] Paragraph 3(2)(a)
Item [2] is a consequential amendment to regulation 3 as a result of the new regulation 20B which is introduced by item [6] below.
Item [3] Regulation 20, heading
Item [3] changes the heading of regulation 20 from ‘Review by Tribunal’ to ‘Review by Tribunal – certain fee payment decisions’. This clarifies that the regulation deals with review of decisions by the Registrar, a District Registrar or a Deputy Registrar about the payment of fees for an application to the Administrative Appeals Tribunal (AAT).
Item [4] Subregulation 20(1)
Item [4] is a consequential amendment to subregulation 20(1) as a result of the amendment to subregulation 3(1) contained in item [1] above. Regulation 20 deals with review of decisions of the Registrar, District Registrar or Deputy Registrar about payment of fees for an application to the AAT. The new subregulation 20(1) ensures that all authorised officers working on Norfolk Island registry of the AAT are covered by the regulations.
Item [5] Subregulation 20(2)
Item [5] is a consequential amendment to subregulation 20(2) as a result of the amendment to subregulation 3(1) contained in item [1] above. Similar to item [4], the new subregulation 20(2) ensures that all authorised officers working on Norfolk Island registry of the AAT are covered by the regulations.
Item [6] After regulation 20
Item [6] inserts new regulations 20A and 20B after regulation 20. New regulation 20A provides that, for subsection 25(2) of the AAT Act, decisions made under Norfolk Island enactments are subject to merits review by the AAT. Section 25(2) of the AAT Act provides that the regulations may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by a Norfolk Island enactment. The decisions, and the relevant decision‑maker, are listed in Schedule 4.
New regulation 20B enables the Registrar of the AAT to delegate their powers to ‘officers of the Supreme Court of Norfolk Island’ who are not employed under the Public Service Act 1999 (Cth) (section 24N of the AAT Act provides that officers and staff of the tribunal must be employed under the Public Service Act 1999 (Cth).
Item[7] Regulation 21
Item [7] amends regulation 21. Regulation 21 currently refers to paragraph 24A(4)(b) of the AAT Act. Paragraph 24A(4)(b) does not exist. Item [7] corrects the section to read ‘subsection 24A(4)’.
Item [8] After Schedule 3
Item [8] inserts a new schedule, Schedule 4, into the Administrative Appeals Tribunal Regulations 1976. Part 1 of Schedule 4 provides the definitions needed to interpret Part 2 of Schedule 4. Clause 1(1) defines an Act mentioned in Schedule 4 to be an Act of the Territory of Norfolk Island. Clause 1(2) sets out the definitions of a list of decision‑makers under the Norfolk Island enactment.
Part 2 of Schedule 4 provides the list of decisions under Norfolk Island legislation which is subject to merits review by the Administrative Appeals Tribunal. Because of section 25(2) of the AAT Act, the regulations must set out under what Norfolk Island enactments an application may be made to the AAT for review of decisions. The list in Part 2 of Schedule 4 sets out what decisions in Norfolk Island enactments are subject to merits review and who the relevant decision‑maker would be.
(All decisions listed in Part 2 of Schedule 4 contain administrative discretions which are likely to have an effect on the interests of a person.)
Consultation
The AAT, the Departments of Regional Australia, Local Government, Arts and Sport (DORA). Broadband, Communications and the Digital Economy and Sustainability, Environment, Water, Population and Communities and other relevant Departments were consulted. DORA consulted members of the Norfolk Island administration about aspects of the conferral of jurisdiction on the AAT.
Regulation Impact Statement
The Office of Best Practice Regulation advised that a Regulation Impact Statement is not required for this Regulation.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Scrutiny Act).
This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Scrutiny Act.
It has been developed as part of the Norfolk Island governance reforms. It confers jurisdiction on the AAT for prescribed discretionary administrative decisions made pursuant to prescribed Norfolk Island enactments.
The legislative instrument does not engage any of the applicable rights or freedoms. It is compatible with human rights as it does not raise any human rights issues.