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
Overview
The Administrative Appeals Tribunal Regulations (Amendment) F1996B01799, enacted in 1996, was introduced to update and streamline the regulations governing the fees and allowances paid to witnesses appearing before the Administrative Appeals Tribunal (AAT). This amendment was made under the authority of the Administrative Appeals Tribunal Act 1975, which empowers the Governor-General to create regulations for the purposes of the Act. The primary objective of these amendments is to align the regulatory framework with contemporary standards and practices while ensuring that the process remains fair and efficient. The regulations were designed to address issues such as the updating of fee structures, the clarification of payment conditions, and the removal of outdated references, thereby facilitating smoother and more transparent administrative processes.
Scope and Application
The Administrative Appeals Tribunal Regulations (Amendment) modifies the Administrative Appeals Tribunal Regulations by altering several aspects of the payment provisions for witnesses and updating references to relevant Acts. The amendment applies to individuals and entities who are summoned to appear as witnesses before the Administrative Appeals Tribunal, including expert witnesses, other witnesses, and those involved in pre-hearing activities. The regulations are made pursuant to the Administrative Appeals Tribunal Act 1975, which operates at the Commonwealth level, thus the amendments apply nationally. The changes primarily affect the fees and allowances payable to witnesses and the processes for determining these payments. For instance, expert witnesses are now to be compensated for the income they forego due to their attendance, while non-expert witnesses who are not paid by wages, salary, or fees are entitled to a daily rate ranging from a minimum of $81 to a maximum of $407. Additionally, the amendment removes the allowance for 'qualifying fees', which previously covered pre-hearing activities of expert witnesses, aligning with the Tribunal's practice of minimizing expenses and formalities in proceedings. The amendment also streamlines the payment of travel, meal, and accommodation expenses for witnesses who must travel for their appearance. Furthermore, the amendment updates statutory references to reflect legislative changes, such as substituting the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 for the Compensation (Commonwealth Government Employees) Act 1971 and including decisions under the Defence Service Homes Act 1918 in the list of decisions for which fees are not payable.
Key Provisions
The Administrative Appeals Tribunal Regulations (Amendment) revise the existing Administrative Appeals Tribunal Regulations under the Administrative Appeals Tribunal Act 1975. Section 70(1) of the Act allows the Governor-General to make regulations, and section 70(2) specifically permits the regulations to include provisions for fees payable in respect of applications to the Tribunal. Regulation 1 is formal, and Regulation 2 makes a drafting amendment to Regulation 16 of the Principal Regulations, ensuring witnesses summoned to appear before the Tribunal continue to receive fees and allowances determined by the Tribunal. Regulation 3 introduces new provisions for witness payments, replacing the previous daily fee scale with a system that compensates witnesses for the income they forego due to their attendance. Regulation 4 updates references in Schedule 3 to reflect legislative changes, substituting the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 for the Compensation (Commonwealth Government Employees) Act 1971 and adding decisions under the Defence Service Homes Act 1918.
The obligations imposed by the Regulations include ensuring that witnesses summoned to appear before the Administrative Appeals Tribunal receive appropriate compensation for their attendance and expenses. The Regulations also require that the Tribunal determine the amount of compensation in accordance with the new Schedule 2, which provides for compensation based on income foregone for expert witnesses and specific daily rates for other witnesses. Additionally, the Regulations mandate that the Tribunal pay reasonable travel expenses and, if necessary, meal and accommodation expenses to witnesses who are required to be away from their usual place of residence overnight. These obligations are designed to ensure that witnesses are fairly compensated for their time and expenses incurred while participating in Tribunal proceedings.
Violations of the Regulations or failure to comply with the obligations set out in the new provisions may result in legal consequences. While the Regulations themselves do not specify offences, penalties, or civil/criminal consequences for breaches, such breaches may be addressed under the broader provisions of the Administrative Appeals Tribunal Act 1975. Penalties for non-compliance with the Act could include fines and other civil or criminal sanctions, depending on the severity and nature of the breach. The exact penalties would be determined by the courts, taking into account the specific circumstances of the case. The Regulations, however, ensure that the Tribunal adheres to a fair and consistent approach to compensating witnesses for their participation in Tribunal proceedings.