EXPLANATORY STATEMENT
ADMINISTRATIVE APPEALS TRIBUNAL ACT 1975
ADMINISTRATIVE APPEALS TRIBUNAL REGULATIONS (AMENDMENT)
Subsection 70(1) of the Administrative Appeals Tribunal Act 1975 provides that the Governor-General may make regulations for the purposes of the Act, Subsection 70(2) provides that, without limiting the generality of subsection 70(1), the regulations may prescribe the fees payable in respect of applications to the Tribunal.
Section 67 of the Act provides that a person summoned to appear before the Administrative Appeals Tribunal is entitled to be paid fees and allowances, fixed by or in accordance with the regulations in respect of his or her attendance.
Details of the Regulations are as follows:
Regulation 1 is formal.
Regulation 2 amends regulation 16 of the Administrative Appeals Tribunal Regulations (the Principal Regulations) by omitting the words “the scale in”. Regulation 16 of the Principal Regulations provides that a person summoned to appear as a witness before the Tribunal shall be paid such fees and allowances for expenses in respect of his or her attendance as a witness as is determined by the Tribunal in accordance with Schedule 2. The amendment made by this regulation is made for drafting purposes and does not alter the effect of the existing regulation.
Regulation 3 repeals Schedule 2 of the Principal Regulations and substitutes a new Schedule 2. Existing Schedule 2 provides for the payment to an expert witness of an amount of not less than $45 or more than $225 for each day of attendance. The proposed new Schedule 2 provides, in item 1(a), that an expert witness who is paid by wages, salary, or fees is to be paid the amount foregone because of his or her attendance before the Tribunal. Item 1(b) provides that witnesses who are not remunerated by wages, salary or fees are to be paid an amount of not less than $81 and not more than $407 for each day of attendance (as determined by the Tribunal or a Presidential member).
Under the existing Schedule 2, other witnesses may be paid not more than $50 a day if they are remunerated by wages, salary or fees or in any other case, $25 a day. The new Schedule 2 provides in item 2(a) for a witness who is remunerated by wages, salary or fees to be paid the amount of wages, salary or fees not paid and, in item 2(b), for a witness not so remunerated to be paid not less than $46 or more than $76 for each day of attendance.
Item 3 of the existing Schedule 2, which deals with the payment of qualifying fees, is omitted. Qualifying fees include any pre-hearing activity that is required to be undertaken by an expert witness, for example, experiments, study of alternative theories etc, in order that the person be able to give evidence. It has been the practice of the Tribunal to not allow qualifying fees. This practice was felt to be consistent with the requirement imposed by section 33 of the Act that proceedings before the Tribunal be conducted with as little formality and technicality as the matter permits. The Tribunal has interpreted this section to mean expenses should be minimised and hence has not paid qualifying fees.
Item 4 of the existing Schedule 2, which deals with payment of allowances for transport, meals and accommodation is modified to make it more easily understood. Witnesses shall be paid reasonable travel expenses and will be paid meal and accommodation expenses if required to be away from their usual place of residence overnight.
Regulation 4 amends Schedule 3 of the Principal Regulations by omitting the reference in Item 1 to the Compensation (Commonwealth Government Employees) Act 1971 and substituting a reference to the Commonwealth Employees’ Rehabilitation and Compensation Act 1988. The latter Act has replaced the former Act. Schedule 3 specifies, for the purposes of regulation 19 of the Principal Regulations, the decisions in relation to which a fee is not payable on lodging an application for the review of a decision with the Tribunal.
Regulation 4 also includes in Schedule 3, as item 3A, decisions made under the Defence Service Homes Act 1918.
Attorney-Genera1