ADMINISTRATIVE REVIEW TRIBUNAL BILL 2023

No. , 2023

Administrative Review Tribunal Bill 2023

Contents

Part 1

Preliminary

Short title ........................................................................................... 1

Commencement ................................................................................. 2

Simplified outline of this Act ............................................................ 2

Definitions ......................................................................................... 4

Other Acts can change how some provisions in this Act

apply ................................................................................................ 14

Extension to external Territories ..................................................... 15

Part 2

Establishment of Administrative Review Tribunal

Division 1

Preliminary

Simplified outline of this Part .......................................................... 16

Division 2

Establishment of Tribunal

Establishment .................................................................................. 17

Objective ......................................................................................... 17

Members of Tribunal ....................................................................... 17

Part 3

Starting a review

Division 1

Preliminary

Simplified outline of this Part .......................................................... 18

Division 2

Key concepts for review of decisions

Reviewable decisions ...................................................................... 19

Instruments may provide for application to Tribunal for

review .............................................................................................. 19

Decision-maker ............................................................................... 19

Organisation or association whose interests are affected by a

decision............................................................................................ 21

Decision is taken to be made if timeframe expires .......................... 21

Division 3

Applying for review of decision

Who can apply ................................................................................. 22

When to apply

general rule ........................................................... 22

Exception

Tribunal may extend period ......................................... 23

Exception

no prescribed period applies ........................................ 24

Division 4

After an application is made

Subdivision A

Parties to proceeding

Parties and potential parties to be notified of application ................ 25

Parties to proceeding for review ...................................................... 25

Administrative Review Tribunal Bill 2023

No. , 2023

Subdivision B

Provision of reasons and documents

Decision-maker must give Tribunal reasons and

documents

general rule ................................................................. 26

Decision-maker must give Tribunal additional statement if

Tribunal requires

general rule ....................................................... 26

Decision-maker must give Tribunal additional documents

within 28 days

general rule ........................................................... 27

Decision-maker must give Tribunal additional documents on

request

general rule ....................................................................... 27

Decision-maker must give copies of reasons and documents

to other parties

general rule .......................................................... 28

Exceptions

Tribunal may adjust requirements .............................. 28

Exception

while resolving whether to restrict publication

or disclosure of information............................................................. 29

Privilege and public interest ............................................................ 30

Subdivision C

Effect of application for review on decision

Decision cannot be altered outside Tribunal process ....................... 30

Reviewable decision continues to operate unless Tribunal

orders otherwise .............................................................................. 31

Part 4

Proceedings

Division 1

Preliminary

Simplified outline of this Part .......................................................... 33

Division 2

Applications to Tribunal

How to apply ................................................................................... 35

Applications may be made on behalf of a person ............................ 35

Division 3

Practice directions

President may make practice directions ........................................... 36

Division 4

Constitution of Tribunal for a proceeding

Subdivision A

Constituting the Tribunal

President may constitute Tribunal for purposes of a

proceeding ....................................................................................... 38

President must consult before including Judicial Deputy

President .......................................................................................... 39

Subdivision B

Proceedings generally

General rules for constitution of Tribunal ....................................... 39

Subdivision C

Guidance and appeals panel

Exception

President refers application for review that

raises issue of significance .............................................................. 40

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Administrative Review Tribunal Bill 2023

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Exception

President, on appeal, refers Tribunal decision

that raises issue of significance ........................................................ 40

Exception

President, on appeal, refers Tribunal decision

for material error.............................................................................. 41

Subdivision D

Reconstitution

Reconstitution

before hearing starts.............................................. 43

Reconstitution

after hearing starts if member unavailable

etc. ................................................................................................... 43

Reconstitution

involvement in dispute resolution process ............ 44

Reconstitution

after hearing starts for conflict of interest or

bias .................................................................................................. 44

Reconstitution

as guidance and appeals panel after hearing

starts ................................................................................................ 44

After Tribunal is reconstituted ......................................................... 44

Division 5

Tribunal procedure

Subdivision A

General principles

Tribunal has discretion in relation to procedure .............................. 46

Tribunal is to act informally etc. ...................................................... 46

Tribunal to be accessible ................................................................. 46

Tribunal is not bound by rules of evidence ...................................... 46

Tribunal controls scope of review of decision ................................. 46

Tribunal can exercise powers of decision-maker ............................. 47

Right to present case ........................................................................ 47

Parties and their representatives to assist Tribunal .......................... 48

Sittings of Tribunal .......................................................................... 48

Resolving disagreements between Tribunal members ..................... 48

Subdivision B

Parties and representation

Attorney-General of the Commonwealth may become a

party ................................................................................................. 49

Decision-makers may elect not to participate in kind of

proceeding ....................................................................................... 50

Decision-maker who elects not to participate may be a

non-participating party to proceeding .............................................. 50

Tribunal may allow non-participating party to participate ............... 51

Non-participating party may give submissions or be required

to participate .................................................................................... 51

Rules may deal with elections in relation to participation ............... 52

Certain parties may seek to withdraw from being a party ................ 52

Representation before Tribunal ....................................................... 53

Tribunal may appoint litigation guardian ........................................ 54

Tribunal may appoint interpreter ..................................................... 56

Administrative Review Tribunal Bill 2023

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Division 6

Tribunal powers

Subdivision A

Hearings and evidence

Hearings to be in public unless practice directions or

Tribunal order requires otherwise .................................................... 58

Tribunal may restrict publication or disclosure of

information ...................................................................................... 58

Requirements for Tribunal orders about hearings, publication

and disclosure .................................................................................. 59

Tribunal must notify parties of Tribunal case event ........................ 60

How a party may appear at a Tribunal case event ........................... 60

Tribunal may summon person to give evidence or produce

documents ........................................................................................ 61

Tribunal may take evidence ............................................................. 62

Taking evidence on oath or affirmation ........................................... 62

Payment of witness fees and allowances ......................................... 63

Inspection of documents produced under summons ........................ 63

Subdivision B

Management of proceedings

Tribunal may give directions in relation to procedure for

proceeding ....................................................................................... 64

Tribunal may hold directions hearing .............................................. 65

Tribunal may proceed without absent party ..................................... 66

Tribunal may adjourn Tribunal case event ...................................... 66

Tribunal may remove party from proceeding if party fails to

appear or does not comply ............................................................... 66

If applicant dies or is bankrupt, wound up or in liquidation or

administration .................................................................................. 67

Tribunal may remit decision to decision-maker for

reconsideration ................................................................................ 68

Tribunal may vary or revoke Tribunal order ................................... 69

Subdivision C

Dispute resolution processes

Tribunal may refer to dispute resolution process ............................. 70

Evidence in dispute resolution process not admissible

elsewhere ......................................................................................... 70

Eligibility of person conducting dispute resolution process to

sit as a member ................................................................................ 71

Engagement of persons to conduct dispute resolution

processes .......................................................................................... 71

Division 7

Public interest certificates and interventions

Disclosure of information

public interest certificate ..................... 73

Attorney-General may intervene for public interest reasons............ 75

Attorney-General is party to proceeding.......................................... 76

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Administrative Review Tribunal Bill 2023

Public interest decisions made by Tribunal ..................................... 77

Division 8

Decision

Subdivision A

Withdrawing and dismissing applications

Applicant may withdraw application ............................................... 79

Tribunal may dismiss application if parties consent ........................ 79

Tribunal must dismiss application if decision is not

reviewable decision ......................................................................... 79

Tribunal may dismiss application if fee is not paid ......................... 79

Tribunal may dismiss application if applicant does not

appear .............................................................................................. 80

100

Tribunal may dismiss application if applicant fails to comply

with order etc. .................................................................................. 80

101

Tribunal may dismiss application if frivolous, vexatious etc. .......... 80

102

Reinstatement of application ........................................................... 81

Subdivision B

Decisions agreed by parties

103

If parties reach agreement

review of decisions only ..................... 82

Subdivision C

Decision on review of reviewable decision

104

When this Subdivision applies......................................................... 84

105

Tribunal decision on review of reviewable decision ........................ 84

106

Circumstances in which Tribunal may reach decision

without hearing

review of decisions only ..................................... 84

107

When Tribunal's decision on review comes into operation

............. 86

108

Effect of Tribunal decision to vary or substitute a reviewable

decision............................................................................................ 88

Division 9

Tribunal guidance decisions

109

Tribunal guidance decisions ............................................................ 90

110

Tribunal must have regard to Tribunal guidance decisions ............. 90

Division 10

After proceeding ends

111

Notice of decision and statement of reasons

review of

reviewable decision ......................................................................... 92

112

Notice of decision and statement of reasons

other

proceedings ...................................................................................... 93

113

Tribunal may publish decisions ....................................................... 94

114

Tribunal may correct error in decision or statement of

reasons ............................................................................................. 95

115

Taxing costs ..................................................................................... 95

Division 11

Offences

116

Offence

failure to comply with summons ..................................... 96

117

Offence

failure to take oath, make affirmation or answer

question ........................................................................................... 96

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Offence

giving false or misleading evidence ................................ 96

119

Offence

breach of non-publication or non-disclosure order ......... 97

120

Offence

contempt of Tribunal ...................................................... 97

Part 5

Guidance and appeals panel

Division 1

Preliminary

121

Simplified outline of this Part .......................................................... 98

Division 2

President may refer application on own initiative

100

122

President may refer application for review of decision to

guidance and appeals panel ........................................................... 100

Division 3

Party may apply to refer Tribunal decision to

guidance and appeals panel

101

Subdivision A

Application for referral to guidance and appeals

panel

101

123

Application may be made to refer certain Tribunal decisions

to guidance and appeals panel ....................................................... 101

124

How to apply ................................................................................. 102

125

When to apply to refer Tribunal decision ...................................... 102

Subdivision B

After application to refer decision is made

103

126

Parties to be notified of application ............................................... 103

127

Tribunal decision continues to operate unless Tribunal orders

otherwise ....................................................................................... 103

128

President decides whether to refer Tribunal decision to

guidance and appeals panel ........................................................... 105

129

Notice of President's decision

....................................................... 106

Subdivision C

Review after Tribunal decision is referred to

guidance and appeals panel

106

130

Application for review proceeds if President refers Tribunal

decision to guidance and appeals panel ......................................... 106

131

Tribunal may have regard to records and documents from

earlier proceeding .......................................................................... 108

Part 6

Proceedings in Intelligence and Security jurisdictional

area

109

Division 1

Preliminary

109

132

Simplified outline of this Part ........................................................ 109

133

How this Part applies ..................................................................... 110

134

Proceedings to be conducted in Intelligence and Security

jurisdictional area .......................................................................... 110

135

Operation in relation to decision-maker ........................................ 111

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136

Reasons for decisions .................................................................... 112

137

Meaning of

relevant body

.............................................................. 112

Division 2

Starting a review

114

Subdivision A

Applications and notice of applications

114

138

Limits on who can apply for certain reviews ................................. 114

139

Additional persons to be notified of applications for review ......... 114

140

Applications for decisions to be reviewed again ........................... 115

Subdivision B

Information to be provided by agency head

115

141

Information to be provided by agency head .................................. 115

Subdivision C

Provision of security clearance standards

117

142

When this Subdivision applies....................................................... 117

143

Director-General of Security may provide standards ..................... 118

144

Disclosure of standards .................................................................. 118

Division 3

Proceedings

120

145

Constitution of Tribunal

general rule .......................................... 120

146

Constitution of Tribunal

preventative detention decisions.......... 121

147

Parties to proceedings .................................................................... 122

148

Certain hearings must be held in private........................................ 123

149

Persons entitled to be present at hearings ...................................... 123

150

Relevant bodies may adduce evidence and make submissions ...... 124

151

Order of evidence and submissions ............................................... 125

152

Opportunity for further evidence and submissions ........................ 125

153

Tribunal may invite person to give evidence ................................. 126

154

Certain processes not available ...................................................... 126

155

Guidance and appeals panel........................................................... 126

Division 4

Disclosure of information

128

156

Duty of Tribunal in relation to security and law enforcement

information .................................................................................... 128

157

Restricting publication or disclosure of information ..................... 128

158

Security certificates

responsible Minister ................................... 129

159

Sensitive information certificates

Director-General of

Security.......................................................................................... 130

160

Protecting identities of persons giving evidence ............................ 132

161

Public interest certificates

responsible Minister ......................... 132

162

Non-disclosure certificates under other Acts ................................. 135

Division 5

Decisions on review

137

Subdivision A

Limits on certain decisions

137

163

Security clearance decisions .......................................................... 137

164

Preventative detention decisions .................................................... 137

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Subdivision B

Recording and communicating decisions

138

165

When this Subdivision applies....................................................... 138

166

Making and recording findings ...................................................... 138

167

Communicating decisions .............................................................. 139

168

Findings relating to procedures or practices of agency .................. 140

169

Applicant may publish findings ..................................................... 140

Part 7

Appeals and references of questions of law to Federal

Court

141

Division 1

Preliminary

141

170

Simplified outline of this Part ........................................................ 141

171

Part applies whether Tribunal's power is conferred by

Commonwealth, State or Territory law ......................................... 142

Division 2

Appeals on questions of law

143

Subdivision A

Appeals on questions of law

143

172

Party may appeal ........................................................................... 143

173

Decisions about standing ............................................................... 143

174

Time and manner for making appeals ............................................ 143

175

Constitution of Federal Court ........................................................ 144

Subdivision B

Jurisdiction and powers of Federal Court

145

176

Federal Court has jurisdiction ........................................................ 145

177

Court may make findings of fact ................................................... 145

178

Operation and implementation of Tribunal's decision

................... 146

Division 3

Transfer of appeals to Federal Circuit and Family

Court of Australia (Division 2)

147

179

Transfer of appeals ........................................................................ 147

180

No appeal from decision to transfer ............................................... 148

181

Federal Court Rules ....................................................................... 148

Division 4

Matters remitted to Tribunal

149

182

When this Division applies ............................................................ 149

183

Constitution of Tribunal ................................................................ 149

184

Tribunal may rely on previous proceedings ................................... 149

Division 5

Referring questions of law

150

185

Referring questions of law ............................................................. 150

Division 6

Sending and disclosing documents

151

186

When this Division applies ............................................................ 151

187

Sending documents ........................................................................ 151

188

Returning documents ..................................................................... 152

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Administrative Review Tribunal Bill 2023

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Disclosure contrary to public interest ............................................ 152

190

Disclosure of security clearance documents .................................. 153

191

Disclosure to officers of the court.................................................. 154

Part 8

Members and staff of Tribunal

155

Division 1

Preliminary

155

192

Simplified outline of this Part ........................................................ 155

Division 2

Members of Tribunal

157

Subdivision A

Members and functions

157

193

Functions of President ................................................................... 157

194

Functions of Deputy Presidents ..................................................... 158

195

Functions of senior and general members ..................................... 159

Subdivision B

Jurisdictional areas and lists

159

196

Jurisdictional areas and lists .......................................................... 159

197

Jurisdictional area leaders .............................................................. 160

198

Assignment of members to lead lists ............................................. 162

199

Assignment of members to jurisdictional areas ............................. 163

Subdivision C

Performance and conduct of members

164

200

President may give directions to members .................................... 164

201

Code of conduct ............................................................................. 164

202

Performance standard .................................................................... 165

203

President may investigate conduct of members ............................. 165

204

Protection of persons involved in investigating conduct of

members etc. .................................................................................. 166

Division 3

Member appointment provisions

168

Subdivision A

Appointment of members

168

205

Appointment of President .............................................................. 168

206

Appointment of Judicial Deputy Presidents................................... 169

207

Appointment of Non-Judicial Deputy Presidents .......................... 170

208

Appointment of senior members and general members ................. 172

209

Minister may establish assessment panel ....................................... 174

210

Appointment of a Judge not to affect tenure etc. ........................... 174

211

Extension of appointment .............................................................. 174

212

Acting appointments ...................................................................... 175

213

Oath or affirmation of office.......................................................... 177

Subdivision B

--Members' terms and conditions

177

214

Remuneration ................................................................................ 177

215

Leave ............................................................................................. 178

216

Other paid work ............................................................................. 178

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Appearances before Tribunal ......................................................... 179

218

Disclosure of interests ................................................................... 179

219

220

Resignation .................................................................................... 180

221

Termination of appointment .......................................................... 181

222

President must notify Minister about grounds for termination ...... 182

223

Additional terms and conditions .................................................... 182

Division 4

Management of Tribunal

183

Subdivision A

Management functions of President

183

224

Management of administrative affairs of Tribunal ........................ 183

Subdivision B

Appointment and functions of Principal Registrar

183

225

Principal Registrar ......................................................................... 183

226

Functions of Principal Registrar .................................................... 183

227

Appointment of Principal Registrar ............................................... 184

228

Acting appointments ...................................................................... 185

229

Remuneration ................................................................................ 186

230

Leave ............................................................................................. 186

231

Other paid work ............................................................................. 186

232

Disclosure of interests ................................................................... 186

233

Resignation .................................................................................... 187

234

Termination of appointment .......................................................... 187

235

Additional terms and conditions .................................................... 188

Subdivision C

Leadership of Tribunal

188

236

Tribunal Advisory Committee ....................................................... 188

Division 5

Staff and consultants

190

237

Appointment of registrars .............................................................. 190

238

Staff ............................................................................................... 190

239

APS employees and others made available ................................... 190

240

Consultants .................................................................................... 191

Division 6

Application of finance law and reporting

requirements

192

241

Application of finance law ............................................................ 192

242

Report by President ....................................................................... 192

Division 7

Other matters concerning management

195

243

Registries ....................................................................................... 195

244

Proceedings arising out of management of Tribunal ..................... 195

Part 9

Administrative Review Council

196

Division 1

Preliminary

196

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Administrative Review Tribunal Bill 2023

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Simplified outline of this Part ........................................................ 196

Division 2

Establishment

198

246

Administrative Review Council .................................................... 198

247

Membership of Council ................................................................. 198

248

Application of finance law ............................................................ 198

Division 3

Council functions etc.

199

249

Functions and powers of Council .................................................. 199

250

Reports by Council ........................................................................ 200

251

Meetings of Council ...................................................................... 200

Division 4

Appointment

202

252

Appointment of certain Council members ..................................... 202

253

Appointment of Chair of Council .................................................. 202

254

Qualification for appointment........................................................ 202

255

Period of appointment ................................................................... 203

256

Acting appointments ...................................................................... 204

257

Remuneration ................................................................................ 204

258

Leave ............................................................................................. 204

259

Disclosure of interests ................................................................... 204

260

Resignation .................................................................................... 205

261

Termination of appointment .......................................................... 205

262

Additional terms and conditions .................................................... 206

Division 5

Staff to assist Council

207

263

Arrangements relating to staff of the Department ......................... 207

Division 6

Annual report

208

264

Annual report ................................................................................. 208

Part 10

Notice and information about administrative decision

209

Division 1

Preliminary

209

265

Simplified outline of this Part ........................................................ 209

Division 2

Decision-makers to give notice of decisions

210

266

Decision-maker to give notice of decision and review rights ........ 210

267

Decision-maker must have regard to rules when giving

notice of decision ........................................................................... 211

Division 3

Decision-makers to give reasons for decisions

213

268

Requesting reasons for reviewable decision from

decision-maker .............................................................................. 213

269

Decision-maker to give statement of reasons ................................ 213

270

Applying to Tribunal to obtain reasons for reviewable

decision.......................................................................................... 215

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Applying to Tribunal to obtain adequate statement of reasons ...... 216

272

Public interest certificate in relation to statement of reasons ......... 216

Part 11

Miscellaneous

218

Division 1

Preliminary

218

273

Simplified outline of this Part ........................................................ 218

Division 2

Confidentiality

219

274

Protected information and documents ........................................... 219

275

Evidence about Tribunal proceedings ............................................ 220

276

Unauthorised disclosure of information......................................... 220

277

Authorisations to record or disclose information ........................... 220

Division 3

Delegation

222

278

Delegation by Minister .................................................................. 222

279

Delegation by President ................................................................. 222

280

Delegation by Principal Registrar .................................................. 224

Division 4

Performing and exercising functions and powers of

Tribunal

225

Subdivision A

Performance and exercise of functions and

powers

225

281

Who may perform or exercise functions or powers ....................... 225

282

How functions or powers must be performed or exercised ............ 226

Subdivision B

Authorisations to perform and exercise functions

and powers of Tribunal

226

283

Authorisations for Principal Registrar ........................................... 226

284

Authorisations for members .......................................................... 226

285

Authorisations for registrars .......................................................... 228

286

Authorisations for staff members .................................................. 230

287

Authorisations are subject to conditions ........................................ 231

Division 5

Other matters

232

288

Tribunal may give advisory opinion .............................................. 232

289

Certain things required to be done in writing may be done

electronically ................................................................................. 232

290

Giving documents .......................................................................... 233

291

Giving documents etc. to decision-maker ...................................... 233

292

Calculation of short periods of time .............................................. 234

293

Protection and immunity ............................................................... 234

294

Legal or financial assistance .......................................................... 235

Division 6

Rules and regulations

237

295

Rules .............................................................................................. 237

No. , 2023

Administrative Review Tribunal Bill 2023

A Bill for an Act to establish an Administrative

Review Tribunal and an Administrative Review

Council and provide for matters relating to

information about administrative decisions, and for

related purposes

The Parliament of Australia enacts:

Part

1--Preliminary

1 Short title

This Act is the

Administrative Review Tribunal Act 2023

Part 1

Preliminary

Section 2

Administrative Review Tribunal Bill 2023

No. , 2023

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of

this Act

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 12 months beginning on

the day this Act receives the Royal Assent,

they commence on the first day of the first

calendar month to start after the end of that

period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Simplified outline of this Act

A large number of Acts and legislative instruments allow people to

apply to the Administrative Review Tribunal for review of

decisions made under them. The Tribunal is established to review

these decisions (known as reviewable decisions).

The Tribunal has a President, Deputy Presidents, senior members

and general members. There is also a Principal Registrar and staff.

This Act deals with their appointment, functions and terms and

conditions.

Preliminary

Part 1

Section 3

No. , 2023

Administrative Review Tribunal Bill 2023

This Act contains the standard provisions applying to Tribunal

processes. Other legislation can include provisions that apply in

addition to, or instead of, these standard provisions.

Broadly, a Tribunal process for review of a reviewable decision

includes the following stages:

(a) a person whose interests are affected by a reviewable

decision applies to the Tribunal for review;

(b) the applicant, the decision-maker and potentially other

persons become parties to the proceeding for the review;

the proceeding by deciding which member or members

will exercise the Tribunal's powers for the proceeding;

(d) the Tribunal conducts the proceeding, including

obtaining evidence and holding hearings, directions

hearings and dispute resolution processes;

(e) the Tribunal makes its decision.

Tribunal powers in relation to the proceeding are exercised by the

Tribunal constituted for the purposes of the proceeding or, in some

circumstances by the President or by members, the Principal

Registrar, registrars and staff members authorised by the President.

The Tribunal reviews decisions on their merits. It may affirm, vary

or set aside a decision-

maker's decision. If the Tribunal sets aside a

decision, it may make a substitute decision or remit the matter to

the decision-maker to reconsider as ordered or recommended by

the Tribunal.

After the Tribunal makes its decision:

(a) in some circumstances, a party may apply to refer the

matter to the guidance and appeals panel for another

review; and

(b) a party may appeal to the Federal Court, on a question of

law, from the Tribunal's decision.

Special rules apply when the Tribunal's powers

in relation to a

proceeding are exercised in the Intelligence and Security

jurisdictional area. This occurs if the proceeding relates to an

Part 1

Preliminary

Section 4

Administrative Review Tribunal Bill 2023

No. , 2023

intelligence and security decision or the President otherwise directs

(for example where the President is satisfied national security

information would be involved).

There are requirements for decision-makers in relation to giving

notice of decisions and review rights and providing statements of

reasons. These apply whether or not an application has been made

to the Tribunal for review of the decision.

This Act also establishes the Administrative Review Council, with

functions relating to the Commonwealth administrative law

system. The Council consists of the President, the Commonwealth

Ombudsman, the Australian Information Commissioner and other

members appointed by the Governor-General. This Act deals with

the appointed members' appointment, functions and terms and

conditions.

4 Definitions

In this Act:

accessible

, in relation to the Tribunal, means enables persons to

apply to the Tribunal and to participate effectively in proceedings

in the Tribunal.

Note:

Examples of areas where arrangements may be made in relation to

accessibility include the following:

(a) premises, facilities and technology;

(b) ease of locating and understanding information about the

Tribunal and documents relating to proceedings;

person's needs, such as interpreter services for hear

ings.

adduce

, in relation to evidence, includes give.

administrative affairs

, in relation to the Tribunal, has a meaning

affected by subsection 224(2).

AFP Commissioner

means the Commissioner of Police (within the

meaning of the

Australian Federal Police Act 1979

agency head

Preliminary

Part 1

Section 4

No. , 2023

Administrative Review Tribunal Bill 2023

(a) in relation to a criminal intelligence assessment, means the

Chief Executive Officer of the Australian Crime

Commission; or

(b) in relation to an exempt security record decision that is a

decision of a kind mentioned in subsection 57A(1) of the

Freedom of Information Act 1982

in respect of an exempt

document (within the meaning of that Act), means the

principal officer of the agency, or the Minister, to whom the

request for access to the document concerned was made; or

decision of the National Archives of Australia, means the

Director-General of the National Archives of Australia; or

(d) in relation to a foreign acquisitions and takeovers decision,

means the Treasurer; or

(e) in relation to a preventative detention decision, means the

AFP Commissioner; or

(f) in relation to a security assessment, means the

Director-General of Security; or

(g) in relation to a security clearance decision, means the

Director-General of Security; or

(h) in relation to a security clearance suitability assessment,

means the Director-General of Security.

agency within the national intelligence community

has the same

meaning as in the

Office of National Intelligence Act 2018

appear

, in relation to a Tribunal case event, has a meaning affected

by section 73.

appointed member

means a member of the Council mentioned in

paragraph 247(1)(d).

ASIO

means the Australian Security Intelligence Organisation.

ASIO Act

means the

Australian Security Intelligence Organisation

Act 1979

ASIO Minister

means the Minister administering the ASIO Act.

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authorised person

, in relation to the performance or exercise of a

function or power of the Tribunal, means a person authorised under

Subdivision B of Division 4 of Part 11 to perform or exercise the

function or power.

code of conduct

means the code of conduct determined under

section 201.

Commonwealth entity

has the same meaning as in the

Public

Governance, Performance and Accountability Act 2013

corporate and registry services

, of the Tribunal: see subsection

226(2).

Council

means the Administrative Review Council.

Council member

means any member of the Council including the

Chair of the Council.

criminal intelligence assessment

means an adverse criminal

intelligence assessment within the meaning of Division 2A of

Part II of the

Australian Crime Commission Act 2002

decision

includes the following:

(a) making, suspending, revoking or refusing to make an order

or determination;

(b) giving, suspending, revoking or refusing to give a certificate,

direction, approval, consent or permission;

authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article;

(g) doing or refusing to do any other act or thing.

decision-maker

: see section 14.

Deputy President

means a Judicial Deputy President or a

Non-Judicial Deputy President.

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dispute resolution process

means a procedure or service for the

voluntary resolution of disputes, and includes:

(a) conferencing; and

(b) mediation; and

(d) conciliation; and

(e) a procedure or service specified in the practice directions;

but does not include:

(f) arbitration; or

(g) court procedures or services.

election notice

: see subsection 60(1).

engage in conduct

means:

(a) do an act; or

(b) omit to perform an act.

entrusted person

means a person who is or has been:

(a) a member; or

(b) the Principal Registrar; or

(d) a person engaged to provide services to the Tribunal.

exempt security record decision

means:

(a) a decision of a kind mentioned in subsection 57A(1) of the

Freedom of Information Act 1982

in respect of a document

that is an exempt document (within the meaning of that Act)

because of section 33 of that Act; or

(b) a decision of the National Archives of Australia in respect of

access to:

(i) a record claimed to be an exempt record under the

Archives Act 1983

because it contains information or

matter of a kind mentioned in paragraph 33(1)(a) or (b)

of that Act; or

(ii) a record of ASIO.

Federal Court

means the Federal Court of Australia.

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foreign acquisitions and takeovers decision

means a decision

under section 79A of the

Foreign Acquisitions and Takeovers Act

1975

that a national security risk exists in relation to an action.

general member

means a person appointed as a general member

under section 208.

guidance and appeals panel

: the Tribunal is constituted for the

purposes of a proceeding by the

guidance and appeals panel

if the

Tribunal is constituted for the purposes of the proceeding in

accordance with Subdivision C of Division 4 of Part 4.

guidance and appeals panel application

means an application

taken to be made under subsection 130(2).

guidance and appeals panel proceeding

: a proceeding in the

Tribunal in relation to an application is a

guidance and appeals

panel proceeding

if:

(a) the application is a guidance and appeals panel application;

(b) the President refers the application to the guidance and

appeals panel.

hearing of a proceeding

: the

hearing of a proceeding

in the

Tribunal does not include a directions hearing in relation to the

proceeding.

intelligence and security decision

means:

(a) a criminal intelligence assessment; or

(b) an exempt security record decision; or

(d) a preventative detention decision; or

(e) a security assessment; or

(f) a security clearance decision; or

(g) a security clearance suitability assessment.

Judge

means a Judge of a court created by the Parliament.

Judicial Deputy President

means a person appointed as a Judicial

Deputy President under section 206.

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jurisdictional area

means a jurisdictional area of the Tribunal

established by subsection 196(1).

jurisdictional area leader

(a) in relation to a jurisdictional area

means a person assigned

under subsection 197(1) to be a leader of the jurisdictional

area; and

(b) in relation to a list

means the jurisdictional area leader of

the jurisdictional area within which the list is established.

law enforcement interests

has the same meaning as in Division 2A

of Part II of the

Australian Crime Commission Act 2002

legal practitioner

means a barrister, a solicitor, a barrister and

solicitor or a legal practitioner of the High Court or of the Supreme

Court of a State or Territory.

list

means a list established within a jurisdictional area by the

President under subsection 196(2).

litigation guardian

, in relation to a party to a proceeding, means a

person appointed to be a litigation guardian for the party under

section 67.

made under an Act

: an instrument is

made under an Act

if it is

made under a provision of an Act or made under a provision of an

instrument that is made under an Act.

member

means any of the following members of the Tribunal:

(a) the President;

(b) a Deputy President;

(d) a general member.

merit-based

: an assessment process for an appointment to an office

merit-based

only if:

(a) an assessment is made of the comparative suitability of the

candidates for the duties of the office, using a competitive

selection process; and

(b) the assessment is based on the relationship between the

candidates' skills, expertise, experience and knowledge and

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No. , 2023

the skills, expertise, experience and knowledge required for

the duties of the office; and

skills, expertise, lived experience and knowledge within the

Tribunal.

national security information

has the same meaning as in the

National Security Information (Criminal and Civil Proceedings)

Act 2004

Non-Judicial Deputy President

means a person appointed as a

Non-Judicial Deputy President under section 207.

non-judicial member

means a member who is not a Judge.

non-participating party

: see subsection 61.

Norfolk Island enactment

means:

(a) an enactment (within the meaning of the

Norfolk Island Act

1979

); or

(b) an instrument (including rules, regulations or by-laws) made

under such an enactment;

and includes a Norfolk Island enactment as amended by another

Norfolk Island enactment.

official

has the same meaning as in the

Public Governance,

Performance and Accountability Act 2013

paid work

means work for financial gain or reward (whether as an

employee, a self-employed person or otherwise), other than service

in the Australian Defence Force.

parliament

means:

(a) a House of the Parliament of the Commonwealth, of a State

or of a Territory; or

(b) a committee of a House or the Houses of the Parliament of

the Commonwealth, of a State or of a Territory.

participation notice

: see section 62.

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performance standard

means the performance standard

determined under section 202.

person whose interests are affected by a decision

has a meaning

affected by section 15.

practice directions

means practice directions made under section

36.

President

means the person appointed as the President under

section 205.

presiding member

, in relation to a proceeding, means the member

the President directs under subsection 37(2) is to preside for the

purposes of the proceeding.

preventative detention decision

means:

(a) a decision by an issuing authority under section 105.8 or

105.12 of the

Criminal Code

to make a preventative

detention order; or

(b) a decision by an issuing authority under section 105.10 or

105.14 of the

Criminal Code

to extend or further extend the

period for which a preventative detention order is in force.

Principal Registrar

means the person appointed as the Chief

Executive Officer and Principal Registrar under section 227.

proceeding

, in relation to the Tribunal, includes a proceeding in the

Tribunal in relation to any of the following:

(a) an application for review of a reviewable decision;

(b) an application under subsection 270(2) (applying to Tribunal

to obtain reasons for reviewable decision);

to obtain adequate statement of reasons);

(d) any other application to the Tribunal under this Act, any

other Act or any instrument made under an Act;

(e) any matter referred to the Tribunal for inquiry or review

under this Act, any other Act or any instrument made under

an Act;

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(f) an incidental application to the Tribunal made in the course

of, or in connection with, an application or proposed

application, or a matter, mentioned in a preceding paragraph.

produce

includes permit access to.

protected document

: see subsection 274(3).

protected information

: see subsection 274(4).

reconstitute the Tribunal

, in relation to a proceeding, means

revoke the direction made under subsection 37(1) in relation to the

proceeding and make another direction under that subsection in

relation to the proceeding.

registrar

means a person appointed as a registrar under section

237.

relevant body

: see subsection 137(2).

responsible Minister

, in relation to an intelligence and security

decision, means the Minister, or any of the Ministers,

administering the provision under which the decision is made.

reviewable decision

: see section 12.

review pathway

: see subsection 266(3).

rules

means the rules made under section 295.

salaried member

means a member who is appointed on a salaried

basis.

security assessment

means:

(a) an adverse security assessment within the meaning of Part IV

of the ASIO Act; or

(b) a qualified security assessment within the meaning of Part IV

of the ASIO Act.

security clearance decision

has the same meaning as in the ASIO

Act.

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Administrative Review Tribunal Bill 2023

security clearance suitability assessment

has the same meaning as

in the ASIO Act.

security vetting agency

has the same meaning as in Part IVA of the

ASIO Act.

senior member

means a person appointed as a senior member

under section 208.

serious misconduct

includes, but is not limited to, the following:

(a) conduct that constitutes unlawful discrimination (within the

meaning of the

Australian Human Rights Commission Act

1986

);

(b) serious or repeated bullying or harassment of a person.

sessional member

means a member who is appointed on a

sessional basis.

sponsoring agency

has the same meaning as in Part IVA of the

ASIO Act.

staff member

means:

(a) a member of the staff of the Tribunal; or

(b) a person whose services are made available to the Tribunal

under section 239.

statement of reasons

, for a decision, means a written statement in

relation to the decision that:

(a) sets out the findings on material questions of fact; and

(b) refers to the evidence or other material on which the findings

are based; and

State or Territory government entity

means:

(a) a Department of a State or Territory; or

(b) a body (whether incorporated or not) established for a public

purpose by or under a law of a State or Territory.

Tribunal

means the Administrative Review Tribunal established

by section 8.

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Tribunal Advisory Committee

means the Tribunal Advisory

Committee established by section 236.

Tribunal case event

, in relation to a proceeding in the Tribunal,

means:

(a) the hearing, or part of the hearing, of the proceeding; or

(b) a directions hearing, or part of a directions hearing, in

relation to the proceeding; or

process, under Subdivision C of Division 6 of Part 4 in

relation to the proceeding.

Tribunal guidance decision

: see subsection 109(1).

5 Other Acts can change how some provisions in this Act apply

General rules

(1) The application of a provision of this Act is subject to a contrary

intention in another Act.

Note:

For example, the Act under which a reviewable decision is made may

contain provisions that apply to review of the decision in addition to,

or instead of, provisions in this Act.

(2) If an Act provides that an instrument made under that Act can

contain provisions that apply:

(a) in addition to; or

(b) instead of; or

this Act, the application of a provision of this Act is subject to a

contrary intention in the instrument.

Note:

Instruments may contain provisions that apply to review of a

reviewable decision in addition to, or instead of, provisions in this

Act if that is permitted by the Act under which the instrument is made.

Exceptions

(3) However, subsections (1) and (2) do not apply in relation to:

(a) Part 2 (establishment of Administrative Review Tribunal); or

(b) Part 8 (members and staff of Tribunal); or

Part 2

Establishment of Administrative Review Tribunal

Division 1

Preliminary

Section 7

Administrative Review Tribunal Bill 2023

No. , 2023

Part

2--Establishment of Administrative Review

Tribunal

Division

1--Preliminary

7 Simplified outline of this Part

The Administrative Review Tribunal is established with the

objective of providing an independent mechanism of review.

The Tribunal consists of the President, Deputy Presidents, senior

members and general members. The President and Judicial Deputy

Presidents are Judges. For detail relating to appointments and roles,

see Divisions 2 and 3 of Part 8.

The Tribunal also has a Principal Registrar and staff. For detail

regarding management of the Tribunal, see Part 8.

Establishment of Administrative Review Tribunal

Part 2

Establishment of Tribunal

Division 2

Section 8

No. , 2023

Administrative Review Tribunal Bill 2023

Division

2--Establishment of Tribunal

8 Establishment

The Administrative Review Tribunal is established by this section.

9 Objective

The Tribunal must pursue the objective of providing an

independent mechanism of review that:

(a) is fair and just; and

(b) ensures that applications to the Tribunal are resolved as

quickly, and with as little formality and expense, as a proper

consideration of the matters before the Tribunal permits; and

proceedings; and

(d) improves the transparency and quality of government

decision-making; and

(e) promotes public trust and confidence in the Tribunal.

10 Members of Tribunal

(1) The Tribunal consists of the following members:

(a) the President;

(b) Deputy Presidents;

(d) general members.

(2) A Judge who is to be appointed as a member must be appointed as

the President or as a Judicial Deputy President.

Part 3

Starting a review

Division 1

Preliminary

Section 11

Administrative Review Tribunal Bill 2023

No. , 2023

Part

3--Starting a review

Division

1--Preliminary

11 Simplified outline of this Part

A large number of Acts and legislative instruments allow people to

apply to the Tribunal for review of decisions made under them.

A person whose interests are affected by a reviewable decision

may apply to the Tribunal for review of the decision. Timeframes

apply to applications, but may be extended in some circumstances.

If a person applies for review of a decision, the person and the

decision-maker are parties to the proceeding for the review. Other

people whose interests are affected by the decision may apply to

the Tribunal to become a party.

For the purposes of the review of a decision, the decision-maker

must generally give copies of a statement of reasons for the

decision and relevant documents to the Tribunal and the other

parties to the proceeding for the review.

An application for review of a decision does not affect the

operation of the decision unless the Tribunal orders otherwise.

This Part contains the standard provisions for these matters. Other

legislation can include provisions that apply in addition to, or

instead of, these standard provisions.

Part 10 contains other provisions assisting persons affected by

decisions. These deal with when decision-makers are required to

give notice of decisions and review rights and provide statements

of reasons.

Starting a review

Part 3

Key concepts for review of decisions

Division 2

Section 12

No. , 2023

Administrative Review Tribunal Bill 2023

Division

2--Key concepts for review of decisions

12 Reviewable decisions

(1) A decision is a

reviewable decision

if an Act or a legislative

instrument provides for an application to be made to the Tribunal

for review of the decision.

Note:

To find out whether a decision is a reviewable decision, start by

looking at the Act or legislative instrument under which the decision

is made.

(2) In addition, if an Act or a legislative instrument provides for an

application to be made to the Tribunal for review of a decision of a

person under a power, a decision under the power is a

reviewable

decision

, whether or not it is made by the person.

Note:

Under subsection (2), the decision is a reviewable decision even if

made by a person who is not authorised to make the decision.

13 Instruments may provide for application to Tribunal for review

(1) A legislative instrument may provide for an application to be made

to the Tribunal for review of a decision made under the instrument.

(2) Subsection (1) does not limit any other Act or instrument made

under an Act.

14 Decision-maker

General rule

(1) The

decision-maker

for a decision is the person who makes the

decision.

Note:

For when Tribunal decisions are taken to be made by the

decision-maker, see subsection 108(2).

Exception

person ceases to hold office, appointment or position

(2) Despite subsection (1), if:

Part 3

Starting a review

Division 2

Key concepts for review of decisions

Section 14

Administrative Review Tribunal Bill 2023

No. , 2023

(a) a person makes a decision as the holder or occupier of an

office, appointment or position; and

(b) the person ceases to hold or occupy the office, appointment

or position;

the

decision-maker

for the decision is:

position; or

(d) if there is no person who holds or occupies the office,

appointment or position

the person specified by the

President.

Exception

any other circumstance

(3) If subsections (1) and (2) do not apply in relation to a decision, the

decision-maker

for the decision is the person specified by the

President.

Specifying a decision-maker

(4) The President must not specify a person under paragraph (2)(d) or

subsection (3) unless the President considers that the person is the

person most able to satisfy the requirements imposed by this Act

on decision-makers of reviewable decisions.

(5) If the President specifies the person in writing, the specification is

not a legislative instrument.

Extension

unincorporated decision-maker is treated as if it were

a person

(6) If a board, committee or other unincorporated body constituted by

2 or more persons is empowered by an Act or an instrument made

under an Act to make a decision, this Act applies as if that board,

committee or other body were a person empowered to make the

decision.

Clarification

decisions made by delegates

(7) Subject to this Act, if an Act or an instrument made under an Act

confers power on a person or body (the

authority

) to delegate a

function or power in relation to a decision, a function or power so

Starting a review

Part 3

Key concepts for review of decisions

Division 2

Section 15

No. , 2023

Administrative Review Tribunal Bill 2023

delegated, when performed or exercised by the delegate, is, for the

purposes of this Act, taken to have been performed or exercised by

the authority.

15 Organisation or association whose interests are affected by a

decision

An organisation or association of persons, whether incorporated or

not, is taken to be a person whose interests are affected by a

decision if:

(a) the decision relates to a matter included in the objects or

purposes of the organisation or association at the time the

decision is made; and

(b) the matter has not been removed from the objects or purposes

of the organisation or association.

16 Decision is taken to be made if timeframe expires

If:

(a) a decision of a person not to do a thing is a reviewable

decision; and

(b) an Act or an instrument made under an Act provides for a

quantified period within which the person is required or

permitted to do the thing; and

the person is taken, for the purposes of this Act and the Act or

instrument that provides for an application to be made to the

Tribunal for review of the decision, to have made a decision at the

end of the period not to do the thing.

Note:

If there is no quantified period within which the person is required or

permitted to do the thing, see section 10 of the

Ombudsman Act 1976

Part 3

Starting a review

Division 3

Applying for review of decision

Section 17

Administrative Review Tribunal Bill 2023

No. , 2023

Division

3--Applying for review of decision

17 Who can apply

(1) A person whose interests are affected by a reviewable decision

may apply to the Tribunal for review of the decision.

Note 1:

For which decisions are reviewable decisions, see section 12.

Note 2:

For when an organisation's or association's interests are taken to be

affected, see section 15.

Note 3:

Section 173 provides a right of appeal to the Federal Court if the

Tribunal decides that a person's interests are not affected by a

reviewable decision.

(2) To avoid doubt, a person may apply even if the person is the

Commonwealth or an authority, tribunal or other body (whether

incorporated or not) that is established by an Act or an instrument

made under an Act.

18 When to apply

general rule

(1) An application to the Tribunal for review of a decision must be

made within the period prescribed by the rules.

Note:

The legislation under which a reviewable decision is made may

specify a different period for applying for review of that type of

decision.

(2) Subsection (1) is subject to section 19 (exception

Tribunal may

extend period).

(3) Rules made for the purposes of subsection (1) must not prescribe a

period ending before the day that is 28 days after the day the

decision is made.

(4) Rules made for the purposes of subsection (1) may prescribe

different periods for different classes of application.

Starting a review

Part 3

Applying for review of decision

Division 3

Section 19

No. , 2023

Administrative Review Tribunal Bill 2023

19 Exception

Tribunal may extend period

Application to extend period

(1) A person (the

applicant

) may apply to the Tribunal to extend the

period during which the applicant may apply to the Tribunal for

review of a decision.

(2) The Tribunal may, by order, extend the period if the Tribunal

considers that it is reasonable in all the circumstances to do so.

(3) The Tribunal may extend the period even if it has expired.

Exception

where reinstatement is available or has been refused

(4) The Tribunal must not extend the period if:

(a) section 102 permits the applicant to apply to the Tribunal to

reinstate an application by the applicant for review of the

decision; or

(b) the Tribunal refuses an application by the applicant under

section 102 to reinstate an application for review of the

decision.

Notice to affected persons may be required

(5) The Tribunal may:

(a) give notice of the application to extend the period (the

extension application

); or

(b) require the applicant to give notice of the extension

application;

to any other person the Tribunal considers is affected by the

extension application.

Affected persons may oppose extension application

(6) A person notified under subsection (5) may notify the Tribunal

within 14 days that the person wishes to oppose the extension

application.

(7) If a person notifies the Tribunal under subsection (6), the Tribunal

must not extend the period unless the Tribunal has given the

Part 3

Starting a review

Division 3

Applying for review of decision

Section 20

Administrative Review Tribunal Bill 2023

No. , 2023

applicant and any person who notified the Tribunal under

subsection (6) a reasonable opportunity to adduce evidence and

make submissions to the Tribunal in relation to the extension.

20 Exception

no prescribed period applies

(1) If:

(a) an application for review of a decision is made to the

Tribunal; and

(b) the application is not required by law to be made within any

particular period; and

within a reasonable time after the making of the decision;

the Tribunal must dismiss the application.

(2) However, subsection (1) does not apply if the Tribunal considers

that there are special circumstances that justify the Tribunal

reviewing the decision.

(3) In considering the matter in paragraph (1)(c):

(a) the Tribunal must have regard to the following:

(i) the time at which the applicant became aware of the

making of the decision;

(ii) if the application would have been required by law to be

made within a particular period if the application had

been made by someone other than the applicant

that

period; and

(b) the Tribunal may have regard to any other matters that it

considers relevant.

Starting a review

Part 3

After an application is made

Division 4

Section 21

No. , 2023

Administrative Review Tribunal Bill 2023

Division

4--After an application is made

Subdivision A

Parties to proceeding

21 Parties and potential parties to be notified of application

(1) This section applies if an application is made to the Tribunal for

review of a decision.

(2) The Tribunal must give written notice of the application to:

(a) the applicant; and

(b) the decision-maker; and

the review by an Act or an instrument made under an Act.

(3) If the Tribunal cons

iders that another person's interests may be

affected by the decision, the Tribunal may:

(a) give to the person; or

(b) require the applicant to give to the person;

written notice of the application and the person's right to apply to

become a party to the proceeding for the review.

22 Parties to proceeding for review

Parties to proceeding

(1) Each of the following are parties to a proceeding for review by the

Tribunal of a decision:

(a) the applicant for the review;

(b) the decision-maker;

(i) the person applies to the Tribunal to become a party to

the proceeding; and

(ii)

the Tribunal is satisfied that the person's interests are

affected by the decision; and

(iii) the Tribunal considers it appropriate that the person

become a party to the proceeding.

Part 3

Starting a review

Division 4

After an application is made

Section 23

Administrative Review Tribunal Bill 2023

No. , 2023

Note:

In addition, the Attorney-General of the Commonwealth or of a State

or Territory is a party to a proceeding in certain circumstances (see

sections 59 and 93).

(2) This section is subject to sections 65 (certain parties may seek to

withdraw from being a party) and 83 (Tribunal may remove party

from proceeding if party fails to appear or does not comply).

Notice to other parties

(3) If a person becomes a party to a proceeding under paragraph (1)(c),

the Tribunal must give written notice to the other parties to the

proceeding.

Subdivision B

Provision of reasons and documents

23 Decision-maker must give Tribunal reasons and documents

general rule

Within 28 days after the Tribunal notifies the decision-maker for a

decision of an application for review of the decision, the

decision-maker must give the Tribunal:

(a) a statement of reasons for the decision; and

(b) a copy of every other document that is:

(i) in the possession or under the control of the

decision-maker; and

(ii)

relevant to the Tribunal's review of the decision.

Note:

A decision-maker may, but is not required to, give the Tribunal the

same statement of reasons given to an applicant (whether under

section 269 or 270 or otherwise).

24 Decision-maker must give Tribunal additional statement if

Tribunal requires

general rule

(1) This section applies if a decision-maker for a decision has given

the Tribunal a statement of reasons for the decision under section

23.

Starting a review

Part 3

After an application is made

Division 4

Section 25

No. , 2023

Administrative Review Tribunal Bill 2023

(2) The Tribunal may order the decision-maker to give the Tribunal,

within the period specified in the order, a statement containing

further information in relation to any one or more of the following:

(a) findings on material questions of fact in relation to the

decision;

(b) evidence or other material on which the findings were based;

25 Decision-maker must give Tribunal additional documents within

28 days

general rule

If:

(a)

at any time during the Tribunal's review of a decision, a

document that is relevant to the review comes into the

possession or under the control of the decision-maker; and

(b) the document has not been given to the Tribunal for the

purposes of the review;

the decision-maker must give a copy of the document to the

Tribunal within 28 days after the day on which the document came

into the possession or under the control of the decision-maker.

26 Decision-maker must give Tribunal additional documents on

request

general rule

(1)

If, at any time during the Tribunal's review of a decision, the

Tribunal is satisfied that a document that may be relevant to the

review is in the possession or under the control of the

decision-maker, the Tribunal may request the decision-maker to

give a copy of the document to the Tribunal within a specified

period.

(2) The request may relate to a particular document or documents in a

class of documents.

(3) If the document is in the possession or under the control of the

decision-maker, the decision-maker must give the Tribunal a copy

of the document within the specified period.

Part 3

Starting a review

Division 4

After an application is made

Section 27

Administrative Review Tribunal Bill 2023

No. , 2023

27 Decision-maker must give copies of reasons and documents to

other parties

general rule

(1) If a decision-maker for a decision is required to give the Tribunal a

statement or copy of a document under this Subdivision within a

period, the decision-maker must give a copy of the statement or

document to each other party to the proceeding for review of the

decision within the same period.

(2) Subsection (1) does not apply if there is a certificate under section

91 (disclosure of information

public interest certificate) that

relates to the disclosure of the statement or document in the

proceeding.

28 Exceptions

Tribunal may adjust requirements

When this section applies

(1) This section applies if the decision-maker for a decision is required

to give the Tribunal or a party to a proceeding a statement or copy

of a document under this Subdivision within a period.

(2) This section applies despite any other provision in this Subdivision

(other than section 29).

Shorten period to comply

(3) A party to the proceeding for review of the decision may apply to

the Tribunal to shorten the period within which the decision-maker

must give the statement or copy.

(4) On application under subsection (

3) or on the Tribunal's own

initiative, the Tribunal may, by order, shorten the period within

which the decision-maker must give the statement or copy if it

appears to the Tribunal that a party to the proceeding for review of

the decision could suffer hardship if the period is not shortened.

Extend period to comply

(5) The decision-maker may apply to the Tribunal to extend the period

within which the decision-maker must give the statement or copy.

Starting a review

Part 3

After an application is made

Division 4

Section 29

No. , 2023

Administrative Review Tribunal Bill 2023

(6) On application under subsection (

5) or on the Tribunal's own

initiative, the Tribunal may, by order, extend the period within

which the decision-maker must give the statement or copy.

(7) The Tribunal may extend the period even if it has expired.

Tribunal orders otherwise

(8) The decision-maker does not need to give the statement or copy if

the Tribunal orders the decision-maker not to give the statement or

copy.

Practice directions provide otherwise

(9) The decision-maker does not need to give the statement or copy in

the circumstances specified in the practice directions.

Number of copies

(10) The Tribunal may, by order, require the decision-maker to give a

specified number of copies of the statement or document.

29 Exception

while resolving whether to restrict publication or

disclosure of information

(1) This section applies if the decision-maker for a decision is required

to give the Tribunal or a party to a proceeding a statement or copy

of a document under this Subdivision.

(2) This section applies despite subsection 27(1) and section 28.

(3) If:

(a) the decision-maker applies to the Tribunal for an order under

section 70 prohibiting or restricting the publication or other

disclosure of information in the statement or copy; and

(b) the decision-maker gives the Tribunal the statement or copy;

and

for review of the decision a copy of the application for the

order;

Part 3

Starting a review

Division 4

After an application is made

Section 30

Administrative Review Tribunal Bill 2023

No. , 2023

the decision-maker does not need to give the statement or copy

unless the Tribunal, after making its decision on the application for

the order, orders the decision-maker to do so.

30 Privilege and public interest

This Subdivision (other than section 25) has effect despite any rule

of law relating to legal professional privilege, without prejudice

privilege or the public interest in relation to the production of

documents.

Subdivision C

Effect of application for review on decision

31 Decision cannot be altered outside Tribunal process

General rule

(1) After an application is made to the Tribunal for review of a

reviewable decision, the decision may not be altered otherwise than

by the Tribunal.

Exceptions

(2) However, the decision may be altered if:

(a) both of the following apply:

(i) the parties to the proceeding for the review consent to

the alteration;

(ii) the Tribunal, by order, consents to the alteration; or

(b) the decision is remitted to the decision-maker under section

85.

Definitions

(3) In this section:

alter

a decision means:

(a) vary the decision; or

(b) set the decision aside; or

the decision.

Starting a review

Part 3

After an application is made

Division 4

Section 32

No. , 2023

Administrative Review Tribunal Bill 2023

32 Reviewable decision continues to operate unless Tribunal orders

otherwise

General rule

(1) The making of an application to the Tribunal for review of a

reviewable decision does not affect the operation of the decision or

prevent the taking of action to implement the decision.

Exception

Tribunal may stay operation or implementation

(2) However, on application by a party to a proceeding for review of a

reviewable decision, the Tribunal may make an order staying or

otherwise affecting the operation or implementation of the decision

if the Tribunal considers that it is desirable to do so for the purpose

of ensuring the effectiveness of the review.

(3) The order is subject to any conditions specified in the order.

(4) The order has effect until the decision of the Tribunal on the

application for review comes into operation.

(5) Despite subsection (4), if:

(a) the order states that it applies for a period; and

(b) the period ends before the decision of the Tribunal on the

application for review comes into operation;

the order has effect until the end of the period.

(6) On application by a party to the proceeding, the Tribunal may, by

order, vary or revoke the order.

Preconditions to making, varying or revoking an order

(7) The Tribunal must not make, vary or revoke an order staying or

otherwise affecting the operation or implementation of a

reviewable decision unless:

(a) the Tribunal has given the parties to the proceeding for

review of the decision a reasonable opportunity to make

submissions to the Tribunal in relation to the making,

variation or revocation of the order; and

Part 3

Starting a review

Division 4

After an application is made

Section 32

Administrative Review Tribunal Bill 2023

No. , 2023

(b) the Tribunal has taken into account the interests of any

person who may be affected by the review of the decision.

(8) However, paragraph (7)(a) does not prevent the Tribunal making,

varying or revoking an order without giving a party an opportunity

to make a submission to the Tribunal if the Tribunal is satisfied

that it is not practicable to give the party the opportunity.

(9) If the Tribunal makes, varies or revokes an order without giving a

party an opportunity to make a submission as mentioned in

subsection (8), the order, variation or revocation does not take

effect until a notice setting out the terms of the order, variation or

revocation is given to the party.

Proceedings

Part 4

Preliminary

Division 1

Section 33

No. , 2023

Administrative Review Tribunal Bill 2023

Part

4--Proceedings

Division

1--Preliminary

33 Simplified outline of this Part

This Part deals with the process the Tribunal follows when an

application is made. It contains the standard provisions for

Tribunal proceedings. Other legislation can include provisions that

apply in addition to, or instead of, these standard provisions. For

example, standard requirements apply to applications to the

Tribunal, but other legislation may specify additional or alternative

requirements.

Practice directions made by the President also deal with various

matters relating to Tribunal proceedings and operations. Practice

directions must be published.

The President decides which member or members will exercise the

Tribu

nal's powers for a specific proceeding. This is referred to as

constituting the Tribunal for the purposes of the proceeding. There

are different requirements for constituting the Tribunal for different

kinds of proceedings. For other ways the Tribunal's po

wers can be

exercised, see Division 4 of Part 11.

General principles (for example in relation to accessibility and

informality) apply to how the Tribunal runs proceedings. Specific

requirements also apply to the Tribunal, applicants,

decision-makers and other parties to proceedings. There are

provisions dealing with the following:

(a) participating in proceedings, including representation;

(b) ways for parties to stop participating;

processes (together known as Tribunal case events);

(d) obtaining and managing evidence and information,

including public interest certificates;

Part 4

Proceedings

Division 1

Preliminary

Section 33

Administrative Review Tribunal Bill 2023

No. , 2023

(e) orders the Tribunal may make in relation to proceedings.

The Tribunal may dismiss an application without making a

decision in some circumstances. Otherwise, in a review of a

reviewable decision, the Tribunal must affirm, vary or set aside the

decision. If the Tribunal sets aside the decision, it may make a

substitute decision or remit the matter to the decision-maker to

reconsider as ordered or recommended by the Tribunal.

The timing and effect of some Tribunal decisions is set out. Once

decisions are made, requirements apply to the Tribunal in relation

to giving notice, giving statements of reasons and publishing

decisions.

Some guidance and appeals panel decisions are specified to be

Tribunal guidance decisions. The Tribunal must have regard to

these decisions in some future proceedings.

There are a number of offences applying to giving evidence,

non-publication and non-disclosure orders and contempt.

Proceedings

Part 4

Applications to Tribunal

Division 2

Section 34

No. , 2023

Administrative Review Tribunal Bill 2023

Division

2--Applications to Tribunal

34 How to apply

Manner of applying

(1) An application to the Tribunal may be made in writing or in any

other manner specified for the application in the practice

directions.

Information to include

(2) An application to the Tribunal must include the information

specified for the application in the practice directions.

Note 1:

A fee may be payable in respect of the application (see rules made for

the purposes of section 296). An application may be dismissed if the

fee is not paid within the time prescribed by the rules (see section 98).

Note 2:

The legislation under which a reviewable decision is made may

contain other requirements for applications for review of that type of

decision.

(3) A failure to comply with subsection (2) does not affect the validity

of the application.

35 Applications may be made on behalf of a person

To avoid doubt, if this Act, another Act or an instrument made

under this Act or another Act allows a person to make an

application to the Tribunal, the application may be made on the

person's behalf by someone else.

Part 4

Proceedings

Division 3

Practice directions

Section 36

Administrative Review Tribunal Bill 2023

No. , 2023

Division

3--Practice directions

36 President may make practice directions

President may make practice directions

(1) The President may make practice directions in relation to any or all

of the following:

(a) the operations of the Tribunal;

(b) the procedure of the Tribunal;

(d) the arrangement of the business of the Tribunal;

(e) the places at which the Tribunal may sit;

(f) the use of technology that allows a person to participate in a

proceeding, or part of a proceeding, in the Tribunal without

being physically present;

(g) giving information or producing or giving documents or

things to the Tribunal for any purpose, including:

(i) the form and manner in which information, documents

or things may be produced or given; and

(ii) producing or giving additional copies of documents;

(h) giving information or producing or giving documents or

things to persons for the purposes of a proceeding in the

Tribunal, including:

(i) the form and manner in which information, documents

or things may be produced or given; and

(ii) producing or giving additional copies of documents;

(i) dispute resolution processes under Subdivision C of

Division 6;

(j) the sorting, prioritisation, allocation and treatment of

applications for review and related matters;

(k) the accessibility of the Tribunal and the responsiveness of the

Tribunal to the diverse needs of parties to proceedings;

(l) any other matter that is required or permitted by this Act to

be specified in the practice directions.

Proceedings

Part 4

Practice directions

Division 3

Section 36

No. , 2023

Administrative Review Tribunal Bill 2023

(2) Practice directions must be made in writing.

Consultation before practice directions are made

(3) Before making a practice direction, the President must consult the

Tribunal Advisory Committee.

Regulations and rules prevail over practice directions

(4) Practice directions that are inconsistent with the regulations or

rules have no effect to the extent of the inconsistency, but practice

directions are taken to be consistent with the regulations and rules

to the extent that the practice directions are capable of operating

concurrently with the regulations and rules.

Failure to comply does not invalidate

(5) A failure by the Tribunal to comply with the practice directions

does not affect the validity of anything done by the Tribunal.

Compliance is sufficient

(6) If the Tribunal deals with a proceeding in a way that complies with

the practice directions, the Tribunal is not required to take any

other action in dealing with the proceeding.

Publishing

(7) The Tribunal must publish practice directions.

Practice directions not legislative instruments

(8) A practice direction made under subsection (1) is not a legislative

instrument.

Part 4

Proceedings

Division 4

Constitution of Tribunal for a proceeding

Section 37

Administrative Review Tribunal Bill 2023

No. , 2023

Division

4--Constitution of Tribunal for a proceeding

Subdivision A

Constituting the Tribunal

37 President may constitute Tribunal for purposes of a proceeding

President directs how Tribunal is constituted

(1) The President may direct that a member or members constitute the

Tribunal for the purposes of a proceeding in the Tribunal.

President directs which member presides

(2) If the Tribunal is constituted by more than one member for the

purposes of a proceeding, the President must direct which member

is to preside for the purposes of the proceeding.

Requirements for directions

(3) In making a direction under subsection (1) or (2), the President

must comply with:

(a) the requirements specified in this Act; and

(b) any other requirements specified in the practice directions.

(4) If a direction under subsection (1) or (2) is made in writing, the

direction is not a legislative instrument.

President must notify parties to proceeding

(5) If the President makes a direction under subsection (1) or (2) in

relation to a proceeding, the President must give written notice to

each party to the proceeding (other than a non-participating party).

(6) The notice does not need to specify:

(a) the member or members constituting the Tribunal; or

(b) the member who is to preside.

(7) If the Tribunal is constituted for the purposes of the proceeding by

the guidance and appeals panel, the notice must state this.

Proceedings

Part 4

Constitution of Tribunal for a proceeding

Division 4

Section 38

No. , 2023

Administrative Review Tribunal Bill 2023

38 President must consult before including Judicial Deputy

President

Before the President directs that a Judicial Deputy President

constitutes, or members at least one of whom is a Judicial Deputy

President constitute, the Tribunal for the purposes of a proceeding,

the President must consult the Chief Justice of the court of which

the Judicial Deputy President is a Judge.

Subdivision B

Proceedings generally

39 General rules for constitution of Tribunal

General rules

(1) The Tribunal must be constituted for the purposes of a proceeding

by a single member, 2 members or 3 members.

(2) The Tribunal may be constituted by 2 or 3 members only if the

President considers that it is appropriate to do so:

(a) because the proceeding raises a complex issue; or

(b) because one or more of the members have particular

expertise relevant to the proceeding; or

(3) The Tribunal constituted must have no more than one member who

is a Judge.

Exceptions

(4) This section is subject to Subdivision C (guidance and appeals

panel).

Part 4

Proceedings

Division 4

Constitution of Tribunal for a proceeding

Section 40

Administrative Review Tribunal Bill 2023

No. , 2023

Subdivision C

Guidance and appeals panel

40 Exception

President refers application for review that raises

issue of significance

When this section applies

(1) This section applies instead of section 39 in relation to a

proceeding in the Tribunal in relation to an application referred to

the guidance and appeals panel by the President under section 122.

Note:

The President may refer an application for review of a decision to the

guidance and appeals panel if the President is satisfied that the

application raises an issue of significance to administrative

decision-making (see section 122).

General rules

(2) The Tribunal must be constituted for the purposes of the

proceeding by 2 or 3 members.

(3) One of the members must be the President or a Deputy President.

41 Exception

President, on appeal, refers Tribunal decision that

raises issue of significance

When this section applies

(1) If:

(a) a proceeding relates to a guidance and appeals panel

application taken to be made because the President refers a

decision of the Tribunal (the

Tribunal decision

) to the

guidance and appeals panel; and

(b) the President is satisfied that the Tribunal decision raises an

issue of significance to administrative decision-making;

the President must constitute the Tribunal for the purposes of the

proceeding in accordance with this section instead of section 39.

Note:

Under section 128, the President may refer a decision of the Tribunal

to the guidance and appeals panel if the President is satisfied of either

or both of the following:

Proceedings

Part 4

Constitution of Tribunal for a proceeding

Division 4

Section 42

No. , 2023

Administrative Review Tribunal Bill 2023

(a) the decision raises an issue of significance to administrative

decision-making;

(b) the decision may contain an error of fact or law materially

affecting the decision.

General rules

(2) The Tribunal must be constituted for the purposes of the

proceeding by 2 or 3 members.

(3) One of the members must be the President or a Deputy President.

(4) Unless the parties to the proceeding agree otherwise, none of the

members can be a person who constituted, or was one of the

persons who constituted, the Tribunal for the purposes of the

proceeding in which the Tribunal decision was made.

42 Exception

President, on appeal, refers Tribunal decision for

material error

When this section applies

(1) If:

(a) a proceeding relates to a guidance and appeals panel

application taken to be made because the President refers a

decision of the Tribunal (the

Tribunal decision

) to the

guidance and appeals panel; and

(b) the President is not satisfied that the Tribunal decision raises

an issue of significance to administrative decision-making;

the President must constitute the Tribunal for the purposes of the

proceeding in accordance with this section instead of section 39.

Note:

Under section 128, the President may refer a decision of the Tribunal

to the guidance and appeals panel if the President is satisfied of either

or both of the following:

(a) the decision raises an issue of significance to administrative

decision-making;

(b) the decision may contain an error of fact or law materially

affecting the decision.

Part 4

Proceedings

Division 4

Constitution of Tribunal for a proceeding

Section 42

Administrative Review Tribunal Bill 2023

No. , 2023

General rules

(2) The Tribunal must be constituted for the purposes of the

proceeding by a single member, 2 members or 3 members.

(3) Unless the parties to the proceeding agree otherwise, none of the

members can be a person who constituted, or was one of the

persons who constituted, the Tribunal for the purposes of the

proceeding in which the Tribunal decision was made.

(4) If the Tribunal is constituted for the purposes of the proceeding by

a single member, the member must be more senior than the most

senior person involved in making the Tribunal decision (see

subsections (6) and (7)).

(5) If the Tribunal is constituted for the purposes of the proceeding by

2 or 3 members, the presiding member must be more senior than

the most senior person involved in making the Tribunal decision

(see subsections (6) and (7)).

(6) For the purposes of subsections (4) and (5), the most senior person

involved in making the Tribunal decision is:

(a) if the Tribunal decision was made by the Tribunal constituted

for the purposes of a proceeding by a single member

that

member; or

(b) if the Tribunal decision was made by the Tribunal constituted

for the purposes of a proceeding by 2 or more members

the

most senior of those members.

(7) For the purposes of subsections (4), (5) and (6), the order of

seniority of members is as follows:

(a) the President;

(b) Judicial Deputy Presidents;

(d) senior members;

(e) general members.

Proceedings

Part 4

Constitution of Tribunal for a proceeding

Division 4

Section 43

No. , 2023

Administrative Review Tribunal Bill 2023

Subdivision D

Reconstitution

43 Reconstitution

before hearing starts

At any time before the start of the hearing of a proceeding in the

Tribunal, the President may reconstitute the Tribunal.

44 Reconstitution

after hearing starts if member unavailable etc.

President may reconstitute Tribunal

(1) At any time after the start of the hearing of a proceeding in the

Tribunal, the President may reconstitute the Tribunal if:

(a) the member, or one of the members, who constitutes the

Tribunal for the purposes of the proceeding:

(i) stops being a member; or

(ii) is for any reason unavailable; or

(iii) is directed by the President not to take part in the

proceeding; or

(b) the President considers that reconstituting the Tribunal is in

the interests of achieving the quick and efficient conduct of

the proceeding.

(2) However, the President must not reconstitute the Tribunal under

this section unless the President:

(a) considers that it is in the interests of justice to do so; and

(b) consults each member who would cease to be a member of

the Tribunal as constituted for the purposes of the proceeding

if it is reasonably practicable to do so.

President may direct member not to take part

(3) The President may direct that a member not take part in a

proceeding in the Tribunal if:

(a) the President considers that it is in the interests of justice to

do so; and

(b) the President has consulted the member if it is reasonably

practicable to do so.

Part 4

Proceedings

Division 4

Constitution of Tribunal for a proceeding

Section 45

Administrative Review Tribunal Bill 2023

No. , 2023

45 Reconstitution

involvement in dispute resolution process

At any time after the start of the hearing of a proceeding in the

Tribunal, the President may reconstitute the Tribunal if section 89

(eligibility of person conducting dispute resolution process to sit as

a member) applies in relation to the member, or one of the

members, who constitutes the Tribunal for the purposes of the

proceeding.

46 Reconstitution

after hearing starts for conflict of interest or

bias

At any time after the start of the hearing of a proceeding in the

Tribunal, the President may reconstitute the Tribunal if the

President is satisfied that the member, or one of the members, who

constitutes the Tribunal for the purposes of the proceeding:

(a) has a conflict of interest in relation to the proceeding; or

(b) has an actual or apprehended bias in relation to the

proceeding.

47 Reconstitution

as guidance and appeals panel after hearing

starts

The President must reconstitute the Tribunal for the purposes of a

proceeding if, at any time after the start of the hearing of the

proceeding, the application to which the proceeding relates is

referred to the guidance and appeals panel by the President under

section 122.

Note:

The President may refer an application for review of a decision to the

guidance and appeals panel if the President is satisfied that the

application raises an issue of significance to administrative

decision-making (see section 122).

48 After Tribunal is reconstituted

If the President reconstitutes the Tribunal for the purposes of a

proceeding, the Tribunal as reconstituted:

(a) must continue the proceeding; and

(b) may have regard to:

Part 4

Proceedings

Division 5

Tribunal procedure

Section 49

Administrative Review Tribunal Bill 2023

No. , 2023

Division

5--Tribunal procedure

Subdivision A

General principles

49 Tribunal has discretion in relation to procedure

(1) The procedure of the Tribunal in a proceeding is within the

discretion of the Tribunal.

(2) In exercising its discretion, the Tribunal must have regard to the

circumstances of the proceeding.

(3) Subsections (1) and (2) are subject to this Act and the rules.

50 Tribunal is to act informally etc.

(1) In a proceeding, the Tribunal must act with as little formality and

technicality as a proper consideration of the matters before the

Tribunal permits.

(2) Subsection (1) is subject to this Act and the rules.

51 Tribunal to be accessible

(1) As far as practicable, the Tribunal must conduct each proceeding in

the Tribunal in a way that is accessible for the parties to the

proceeding, taking into account the needs of the parties.

(2) Subsection (1) is subject to this Act and the rules.

52 Tribunal is not bound by rules of evidence

The Tribunal is not bound by the rules of evidence, but may inform

itself on any matter in such manner as it considers appropriate.

53 Tribunal controls scope of review of decision

In a proceeding for review of a decision, the Tribunal may

determine the scope of the review by limiting the questions of fact,

the evidence and the issues that it considers.

Proceedings

Part 4

Tribunal procedure

Division 5

Section 54

No. , 2023

Administrative Review Tribunal Bill 2023

54 Tribunal can exercise powers of decision-maker

For the purposes of reviewing a reviewable decision, the Tribunal

may exercise all the powers and discretions that are conferred on

the decision-maker by an Act or an instrument made under an Act.

55 Right to present case

General rule

(1) The Tribunal must ensure that each party to a proceeding in the

Tribunal is given a reasonable opportunity to:

(a)

present the party's case; and

(b) access any information or documents to which the Tribunal

proposes to have regard in reaching a decision in the

proceeding; and

Exceptions

(2) Subsection (1) does not apply in relation to a non-participating

party to the proceeding.

(3) Subsection (1) is subject to:

(a) section 69 (hearings to be in public unless practice directions

or Tribunal order requires otherwise); and

(b) section 70 (Tribunal may restrict publication or disclosure of

information); and

summons); and

(d) section 91 (disclosure of information

public interest

certificate); and

(e) Part 6 (proceedings in Intelligence and Security jurisdictional

area).

(4) This section does not limit section 53 (Tribunal controls scope of

review of decision).

Part 4

Proceedings

Division 5

Tribunal procedure

Section 56

Administrative Review Tribunal Bill 2023

No. , 2023

56 Parties and their representatives to assist Tribunal

Decision-makers and their representatives

(1) In a proceeding for review of a decision, the decision-maker and

any person representing the decision-maker must use their best

endeavours to assist the Tribunal to:

(a) make the correct or preferable decision in relation to the

proceeding; and

(b) achieve the objective in section 9.

Other parties and their representatives

(2) A party to a proceeding in the Tribunal (other than the

decision-maker in a proceeding for review of a decision) and any

person representing the party must use their best endeavours to

assist the Tribunal to achieve the objective in section 9.

Obligation is limited for non-participating party

(3) The obligation of a non-participating party to a proceeding, and

any person representing the party, to use best endeavours to assist

the Tribunal in relation to the proceeding only applies in relation to

action the party is required to take by this Act or the Tribunal in

relation to the proceeding.

57 Sittings of Tribunal

Sittings of the Tribunal are to be held from time to time as

required, in such places in Australia or an external Territory as are

convenient or in the interests of justice.

58 Resolving disagreements between Tribunal members

2 members

(1) If 2 members constitute the Tribunal for the purposes of a

proceeding and they do not agree about any matter, the view of the

presiding member prevails.

Proceedings

Part 4

Tribunal procedure

Division 5

Section 59

No. , 2023

Administrative Review Tribunal Bill 2023

3 members

(2) If 3 members constitute the Tribunal for the purposes of a

proceeding and they do not agree about any matter:

(a) if the majority agree

the view of the majority prevails; or

(b) in any other case

the view of the presiding member

prevails.

Subdivision B

Parties and representation

59 Attorney-General of the Commonwealth may become a party

Becoming a party

(1) If the Attorney-General of the Commonwealth gives written notice

to the Tribunal that the Attorney-General wishes to be a party to a

proceeding in the Tribunal, the Attorney-General is a party to the

proceeding.

Ceasing to be a party

(2) If:

(a) the Attorney-General of the Commonwealth is a party to a

proceeding because of a notice under subsection (1); and

(b) the Attorney-General gives written notice to the Tribunal that

the Attorney-General wishes to cease being a party to the

proceeding;

the Attorney-General ceases being a party to the proceeding.

Costs

(3) If the Attorney-General of the Commonwealth is a party to a

proceeding because of a notice under subsection (1), the

Attorney-General may authorise the Commonwealth to pay another

party to the proceeding any costs that the Attorney-General

considers the party reasonably incurred as a result of the

Attorney-General being a party to the proceeding.

(4) To avoid doubt, the power of the Commonwealth to make a

payment, or to make, vary or administer an arrangement or grant,

Part 4

Proceedings

Division 5

Tribunal procedure

Section 60

Administrative Review Tribunal Bill 2023

No. , 2023

under this section must be disregarded for the purpose of

paragraph 32B(1)(a) of the

Financial Framework (Supplementary

Powers) Act 1997

Note:

The effect of this subsection is to make clear that this section does not

effectively limit the operation of section 32B of the

Financial

Framework (Supplementary Powers) Act 1997

. The Commonwealth

has the power to make, vary or administer an arrangement or grant

under that section whether the Commonwealth also has the power to

do so under this section.

60 Decision-makers may elect not to participate in kind of

proceeding

(1) A person who is the decision-maker for a reviewable decision may

give the Tribunal written notice (an

election notice

) that the person

does not wish to participate in a kind of proceeding in the Tribunal.

(2) However, subsection (1) does not apply in relation to a kind of

proceeding prescribed by the rules.

(3) An election notice is not a legislative instrument.

61 Decision-maker who elects not to participate may be a

non-participating party to proceeding

Person who has given election notice

(1) A person is a

non-participating party

to a proceeding if:

(a) the person is a party to the proceeding (other than the

applicant); and

(b) the proceeding relates to a decision for which the person is

the decision-maker; and

election notice; and

(d) the proceeding is not a guidance and appeals panel

proceeding; and

(e) any conditions prescribed by the rules for the purposes of this

paragraph are satisfied; and

(f) the Tribunal has not decided under section 62 that the person

is to participate in the proceeding; and

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(g) the Tribunal has not ordered the person to participate in the

proceeding under section 63.

Note:

A non-participating party remains a party to the proceeding and still

needs to comply with this Act and orders of the Tribunal in relation to

the proceeding. However, certain requirements do not apply to the

party (see, for example, section 83 which deals with removal of a

party for failure to appear or non-compliance).

(2) To avoid doubt, once the Tribunal decides under section 62 that a

person is to participate in a proceeding, or orders the person to

participate in a proceeding under section 63, the person is no

longer a non-participating party to the proceeding and a new

election notice does not affect this.

Prescribed circumstances

(3) A person is also a

non-participating party

to a proceeding in the

circumstances prescribed by the rules.

62 Tribunal may allow non-participating party to participate

(1) If a non-participating party to a proceeding gives the Tribunal

written notice (a

participation notice

) that the party wishes to

participate in the proceeding, the Tribunal must decide whether or

not the party is to participate in the proceeding.

Note:

An election notice relates to a kind of proceeding. A participation

notice relates to a particular proceeding of that kind. The election

notice continues to apply to other proceedings of that kind.

(2) A participation notice is not a legislative instrument.

63 Non-participating party may give submissions or be required to

participate

Written submissions may be provided

(1) A non-participating party to a proceeding may give the Tribunal

written submissions in relation to the proceeding.

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Section 64

Administrative Review Tribunal Bill 2023

No. , 2023

Tribunal may order non-participating party to participate, appear

or provide written submissions

(2) The Tribunal may order a non-participating party to a proceeding

to do any one or more of the following, if the Tribunal considers it

would assist in progressing the proceeding or in making the correct

or preferable decision:

(a) appear before the Tribunal at a Tribunal case event in relation

to the proceeding;

(b) give the Tribunal written submissions in relation to the

proceeding or a Tribunal case event in relation to the

proceeding;

64 Rules may deal with elections in relation to participation

(1) The rules may provide for or in relation to:

(a) the operation of sections 60 to 63; and

(b) the operation of this Part in relation to parties who are or who

have been non-participating parties to proceedings.

(2) Without limiting the scope of rules that may be made for the

purposes of subsection (1), the rules may provide for the following:

(a) requirements for giving election notices or participation

notices;

(b) publication of election notices or participation notices;

is a non-participating party to the proceeding.

65 Certain parties may seek to withdraw from being a party

General rule

(1) The Tribunal may order that a party to a proceeding in the Tribunal

ceases to be a party to the proceeding if the party gives written

notice to the Tribunal that the party wishes to cease being a party

to the proceeding.

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Exceptions

applicant and decision-maker

(2) However, subsection (1) does not apply in relation to the following

parties:

(a) in any case

the applicant;

(b) if the proceeding relates to a decision

the decision-maker.

Note:

The applicant may withdraw the application (see section 95).

66 Representation before Tribunal

General rules

(1) A party to a proceeding in the Tribunal may choose another person

to represent the party in the proceeding.

(2) A person who is required or permitted to appear before the

Tribunal may, with the permission of the Tribunal, choose another

person to represent the person before the Tribunal.

Exception

(3) However, the Tribunal may order that a person is not to be

represented by the person's representative if the Tribunal considers

that:

(a) the representative has a conflict of interest in representing the

person; or

(b) the representative is not acting in the best interests of the

person; or

safety risk to any person; or

(d) representation of the person by the representative presents an

unacceptable privacy risk to any person; or

(e) the representative is otherwise impeding the Tribunal.

Note:

A party to the proceeding can choose another representative. A person

required or permitted to appear before the Tribunal can seek the

Tribunal's permission to choose another representative.

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Section 67

Administrative Review Tribunal Bill 2023

No. , 2023

67 Tribunal may appoint litigation guardian

Appointment of litigation guardian

(1) The Tribunal may, by order, appoint a person to be a litigation

guardian for a party to a proceeding in the Tribunal if the Tribunal

considers that:

(a) the party:

(i) does not understand the nature and possible

consequences of the proceeding; or

(ii) is not capable of adequately conducting, or giving

adequate instruction for the conduct of, the proceeding;

and

(b) the appointment is necessary, taking into account the

availability and suitability of other measures that would

allow the party to participate in the proceeding.

(2) In appointing a person to be a litigation guardian for a party to a

proceeding, the Tribunal must take into account:

(a)

the party's will and

preferences, or likely will and

preferences, in relation to:

(i) whether the Tribunal should appoint a person to be a

litigation guardian; and

(ii) who the Tribunal should appoint to be a litigation

guardian; or

(b)

if the party's will and preferences,

or likely will and

preferences, cannot be ascertained

the personal and social

wellbeing of the party.

(3) The Tribunal may appoint a person to be a litigation guardian for a

party to a proceeding only if:

(a) the person is at least 18 years old; and

(b) the person has no conflict of interest in representing the

party; and

(d) the Tribunal considers that the person is able to meet the

requirements in subsections (6) to (8); and

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(e) any conditions prescribed by the rules for the purposes of this

paragraph are satisfied.

(4) The Tribunal may appoint a person to be a litigation guardian for a

party whether or not the party has a guardian or representative

appointed under another law.

Role of litigation guardian

(5) If a party to a proceeding in the Tribunal has a litigation guardian:

(a) the party may participate in the proceeding only by the

litigation guardian; and

(b) the litigation guardian must do anything required to be done

by the party in relation to the proceeding by an Act or an

instrument under an Act; and

by the party in relation to the proceeding by an Act or an

instrument under an Act.

Duty of litigation guardian

(6) If a party to a proceeding in the Tribunal has a litigation guardian,

the litigation guardian must give effect to the party's will and

preferences, or likely will and preferences, in relation to the

proceeding.

(7) However, if to do so would pose a serious risk to

the party's

personal and social wellbeing, the litigation guardian must instead

act in a manner that promotes the personal and social wellbeing of

the party.

(8)

If the party's will and preferences, or likely will and preferences,

cannot be ascertained, the litigation guardian must act in a manner

that promotes the personal and social wellbeing of the party.

Resignation and removal of litigation guardian

(9) A litigation guardian may resign by giving the Tribunal a written

resignation.

(10) The Tribunal

may, by order, remove a party's litigation guardian if:

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(a) the party requests a different person be appointed to be a

litigation guardian for the party; or

(b) the Tribunal considers that the party:

(i) understands the nature and possible consequences of the

proceeding; and

(ii) is capable of adequately conducting, or giving adequate

instruction for the conduct of, the proceeding; or

(i) the litigation guardian has a conflict of interest in

representing the party; or

(ii) the litigation guardian has not complied with

subsections (6) to (8); or

(iii) representation of the party by the litigation guardian

presents a safety risk to any person; or

(iv) representation of the party by the litigation guardian

presents an unacceptable privacy risk to any person; or

(v) the litigation guardian is otherwise impeding the

Tribunal.

Rules

(11) The rules may provide for matters relating to litigation guardians.

(12) Without limiting the scope of rules that may be made for the

purposes of subsection (11), the rules may provide for or in relation

to the following:

(a) costs relating to litigation guardians;

(b) giving documents to a litigation guardian or a party who has

a litigation guardian.

68 Tribunal may appoint interpreter

Tribunal may appoint interpreter on request

(1) A person appearing at a Tribunal case event may request the

Tribunal to appoint an interpreter for the person.

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(2) The Tribunal must comply with the request unless the Tribunal

considers that the person does not require an interpreter for the

purposes of:

(a) communication with the Tribunal; or

(b) understanding evidence and submissions given to the

Tribunal.

Tribunal must appoint interpreter in certain circumstances

(3) If:

(a) the Tribunal considers that a person appearing at a Tribunal

case event requires an interpreter for the purposes of:

(i) communication with the Tribunal; or

(ii) understanding evidence and submissions given to the

Tribunal; and

(b) the person does not request the Tribunal to appoint an

interpreter;

the Tribunal must, on its own initiative, appoint an interpreter for

the purposes of communication between the person and the

Tribunal.

Conflict of interest

(4) The Tribunal may appoint a person to be an interpreter for another

person only if the person has no conflict of interest in acting as an

interpreter for the other person.

Tribunal may appoint interpreters in other situations

(5) Subsections (2) and (3) do not limit the power of the Tribunal to

appoint an interpreter.

Oath or affirmation for interpreter

(6) The Tribunal may require an interpreter appointed by the Tribunal

to take an oath or make an affirmation. A member or a staff

member may administer an oath or affirmation to the interpreter.

(7) The oath or affirmation is an oath or affirmation that the

interpretation the interpreter will give will be true.

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Section 69

Administrative Review Tribunal Bill 2023

No. , 2023

Division

6--Tribunal powers

Subdivision A

Hearings and evidence

69 Hearings to be in public unless practice directions or Tribunal

order requires otherwise

General rule

(1) The hearing of a proceeding in the Tribunal must be in public.

Note:

The hearing of a proceeding is the substantive hearing of the matter

before the Tribunal. Directions hearings do not need to be in public

(see the definition of

hearing of a proceeding

in section 4).

Exception

practice directions may require private hearing

(2) Despite subsection (1), in the circumstances specified in the

practice directions:

(a) the hearing or part of the hearing is to take place in private;

and

(b) only the persons specified in the practice directions may be

present.

Exception

Tribunal may require private hearing

(3) Despite subsection (1), the Tribunal may, by order:

(a) direct that the hearing or part of the hearing is to take place in

private; and

(b) give directions in relation to the persons who may be present.

Note:

The power must be exercised in accordance with section 71.

70 Tribunal may restrict publication or disclosure of information

Information about parties, witnesses and others

(1) The Tribunal may, by order, give directions prohibiting or

restricting the publication or other disclosure of:

(a) information tending to reveal the identity of:

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(i) a party to or witness in a proceeding in the Tribunal; or

(ii) any person related to or otherwise associated with any

party to or witness in a proceeding in the Tribunal; or

(b) information otherwise concerning a party, witness or other

person mentioned in paragraph (a).

Note 1:

The power must be exercised in accordance with section 71.

Note 2:

Breach of a non-publication or non-disclosure order is an offence (see

section 119).

Information relating to proceeding

(2) The Tribunal may, by order, give directions prohibiting or

restricting the publication or other disclosure of information that:

(a) relates to a proceeding in the Tribunal; and

(b) is any of the following:

(i) information that comprises evidence or information

about evidence;

(ii) information given to the Tribunal.

Note 1:

The power must be exercised in accordance with section 71.

Note 2:

Breach of a non-publication or non-disclosure order is an offence (see

section 119).

(3) Without limiting subsection (2), the order may prohibit or restrict

the publication or other disclosure to some or all of the parties to

the proceeding.

Order can

be made on application or on Tribunal's initiative

(4) The Tribunal may make an order under this section on application

by a person or on its own initiative.

71 Requirements for Tribunal orders about hearings, publication

and disclosure

Practice directions

(1) In making an order under subsection 69(3) or section 70, the

Tribunal must comply with the requirements (if any) specified in

the practice directions.

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Section 72

Administrative Review Tribunal Bill 2023

No. , 2023

Considerations

(2) In considering whether to make an order under subsection 69(3) or

section 70 in relation to a proceeding, the Tribunal must have

regard to the following:

(a) the principle that it is desirable that hearings of proceedings

in the Tribunal are held in public;

(b) the principle that it is desirable that evidence given before the

Tribunal is made available to the public;

Tribunal and the contents of documents given to the Tribunal

are made available to all the parties to the proceeding;

(d) any reasons in favour of making an order, including the

following:

(i) in any case

the circumstances of the parties to the

proceeding and other persons connected to the

proceeding;

(ii) in any case

the harm (if any) that is likely to occur to a

person if the order is not made;

(iii) in relation to an order under section 70

the

confidential nature (if any) of the information;

(e) any other matters that the Tribunal considers relevant.

72 Tribunal must notify parties of Tribunal case event

General rule

(1) Before a Tribunal case event in relation to a proceeding, the

Tribunal must give written notice to the parties to the proceeding

of the date, time and place of the Tribunal case event.

Exception

non-participating party

(2) Subsection (1) does not apply in relation to a non-participating

party to the proceeding.

73 How a party may appear at a Tribunal case event

(1) Parties to proceedings may appear at Tribunal case events:

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(a) themselves; or

(b) unless subsection (2) applies

through a representative.

(2) The Tribunal may order a party to a proceeding to appear at a

Tribunal case event in relation to the proceeding personally,

whether or not the party's representative also appears.

(3) Subsection (2) does not apply in relation to the decision-maker in a

proceeding that relates to a decision.

74 Tribunal may summon person to give evidence or produce

documents

Power to issue summons

(1) If the Tribunal has reasonable grounds to believe that a person has

information, or a document or thing, relevant to a proceeding in the

Tribunal, the Tribunal may, in writing, summon the person to do

either or both of the following, on the day, and at the time and

place, specified in the summons:

(a) appear before the Tribunal to give evidence;

(b) produce any document or thing specified in the summons.

(2) Except with the consent of the person being summoned, the day

specified in the summons must be at least 14 days after the day the

summons is given to the person.

(3) The Tribunal may summon the person:

(a) at the request of a party to the proceeding; or

(b) on its own initiative.

(4) The Tribunal may refuse a request for a person to be summoned.

Early compliance with summons

(5) A person may comply with a summons to produce a document or

thing by producing the document or thing to the Tribunal before

the day specified in the summons.

(6) If the person does so, the person is not required to appear before

the Tribunal unless:

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No. , 2023

(a) the summons or another summons requires the person to

appear before the Tribunal; or

(b) the Tribunal orders the person to appear before the Tribunal.

Note 1:

A person might commit an offence by failing to comply with a

summons (see section 116).

Note 2:

A person summoned under this section may be entitled to be paid fees

or allowances under section 77. However, the person is not excused

from complying with a summons only because the person thinks that

an amount paid to the person under that section is not sufficient.

75 Tribunal may take evidence

The Tribunal may take evidence, including on oath or by

affirmation, inside or outside Australia.

76 Taking evidence on oath or affirmation

(1) At the hearing of a proceeding or a directions hearing in relation to

a proceeding:

(a) the Tribunal may require a person appearing before the

Tribunal to give evidence to take an oath or make an

affirmation; and

(b) a member or a staff member may administer an oath or

affirmation to the person.

Note 1:

Failure to take an oath or make an affirmation is an offence (see

section 117).

Note 2:

The hearing is a

judicial proceeding

for the purposes of Part III of the

Crimes Act 1914

, which creates various offences in relation to such

proceedings.

(2) The oath or affirmation is an oath or affirmation that the evidence

the person will give will be true.

(3) The Tribunal may allow a person appearing before the Tribunal at

the hearing of a proceeding, or a directions hearing in relation to a

proceeding, who has taken an oath or made an affirmation, to give

evidence by tendering a written statement and verifying it by oath

or affirmation.

Note:

A person might commit an offence if the person provides false or

misleading evidence (see section 118).

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Section 77

No. , 2023

Administrative Review Tribunal Bill 2023

77 Payment of witness fees and allowances

Entitlement to fees and allowances

(1) A person required by this Act, another Act or an instrument made

under an Act to give information or produce or give a document or

thing to the Tribunal is to be paid, in accordance with the rules, any

fees, and any allowances for expenses, prescribed by the rules for

compliance with the requirement.

Rules concerning fees and allowances

(2) Without limiting the scope of rules that may be made for the

purposes of subsection (1), those rules may prescribe, or prescribe

matters relating to, any or all of the following:

(a) the circumstances in which a person is to be paid;

(b) the circumstances in which a person is not to be paid;

(d) the time when payment is required.

(3) Rules made for the purposes of subsection (1) may do any or all of

the following:

(a) prescribe the amount of, or a method for working out the

amount of, a fee or allowance;

(b) make provision in relation to the whole or a part of a fee or

allowance;

payment of a fee or allowance in relation to a proceeding.

78 Inspection of documents produced under summons

General rule

(1) A party to a proceeding may inspect or take a copy of a document

or thing produced under a summons under section 74 in relation to

the proceeding:

(a) in the circumstances specified in the practice directions; or

(b) if the Tribunal permits.

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Section 79

Administrative Review Tribunal Bill 2023

No. , 2023

Exception

public interest certificate applies

(2) This section does not apply if there is a certificate under section 91

that relates to disclosure of the document or thing in the

proceeding.

Exception

disclosure prohibited by law

(3) Subsection (1) does not apply if the inspection or copying of the

document or thing would result in a disclosure of information

which is prohibited or restricted by or under this Act, another Act

or an instrument made under an Act.

Note:

The disclosure of information may be prohibited or restricted by

Tribunal order under section 70.

Exception

person objects

(4) The person required to produce the document or thing, or any party

to the proceeding, may give the Tribunal notice that the person or

party objects to the document or thing being inspected or copied.

(5) A notice under subsection (4):

(a) may be made in writing or in any other manner specified in

the practice directions; and

(b) must contain reasons for the objection.

(6) If a notice is given under subsection (4), the Tribunal must decide

whether the document or thing may be inspected or copied by a

party to the proceeding.

Subdivision B

Management of proceedings

79 Tribunal may give directions in relation to procedure for

proceeding

(1) The Tribunal may, by order, give directions in relation to the

procedure to be followed for a proceeding in the Tribunal.

(2) The order may do any of the following:

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(a) require a party to the proceeding to give information or

documents to the Tribunal or another party to the proceeding

for the purposes of the proceeding;

(b) require a party to the proceeding to give a statement of

matters or contentions on which the party intends to rely in

the proceeding to the Tribunal or another party to the

proceeding;

(d) limit the number of experts to report on an issue;

(e) require parties to the proceeding to appoint a single person to

provide expert evidence;

(f) limit the number of persons to be called to give evidence

(either generally or on a specified matter);

(g) limit the number of persons to appear at a dispute resolution

process in relation to the proceeding;

(h) require expert witnesses to give evidence at the same time;

(i) limit the time for giving evidence or making oral

submissions;

(j) limit the length of written submissions;

(k) limit the ability of a party to the proceeding to give

information or documents to the Tribunal and any other party

to the proceeding for the purposes of the proceeding within a

period before the start of the hearing of the proceeding.

(3) If the proceeding is for review of a decision, the order may require

the decision-maker to give the Tribunal or another party to the

proceeding a statement setting out the grounds the decision-maker

considers support the decision-

maker's position in relation to the

review.

(4) Subsections (2) and (3) do not limit this section.

(5) Section 55 (right to present case) does not prevent the Tribunal

making an order under this section.

80 Tribunal may hold directions hearing

The Tribunal may hold a directions hearing in relation to a

proceeding in the Tribunal.

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Section 81

Administrative Review Tribunal Bill 2023

No. , 2023

81 Tribunal may proceed without absent party

The Tribunal may proceed with a Tribunal case event that relates

to a proceeding in the absence of a party to the proceeding if the

Tribunal is satisfied that the party received appropriate notice of

the date, time and place of the Tribunal case event.

82 Tribunal may adjourn Tribunal case event

The Tribunal may adjourn a Tribunal case event that relates to a

proceeding in the Tribunal from time to time.

83 Tribunal may remove party from proceeding if party fails to

appear or does not comply

Tribunal may remove party who fails to appear

(1) If:

(a) a party to a proceeding in the Tribunal fails to appear at a

Tribunal case event that relates to the proceeding; and

(b) the Tribunal is satisfied that the party received appropriate

notice of the date, time and place of the Tribunal case event;

the Tribunal may order that the party ceases to be a party to the

proceeding.

Note 1:

Tribunal case events include hearings, directions hearings and dispute

resolution processes (see the definition of

Tribunal case event

section 4).

Note 2:

For how to appear at a Tribunal case event, see section 73.

(2) However, subsection (1) does not apply if the party is:

(a) the applicant; or

(b) a non-participating party.

Tribunal may remove party who fails to comply with Act or order

(3) If a party to a proceeding in the Tribunal fails to comply with this

Act or an order of the Tribunal in relation to the proceeding within

a reasonable time, the Tribunal may order that the party ceases to

be a party to the proceeding.

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Division 6

Section 84

No. , 2023

Administrative Review Tribunal Bill 2023

(4) However, subsection (3) does not apply if the party is the

applicant.

Reinstatement

(5) If a person ceases to be a party to a proceeding under

subsection (1) or (3), the person is a party to the proceeding again

if the Tribunal, on application by the person or on its own

initiative, orders that the person is a party to the proceeding.

84 If applicant dies or is bankrupt, wound up or in liquidation or

administration

When this section applies

(1) This section applies in relation to a proceeding in the Tribunal in

relation to an application (the

substantive application

) if the

applicant:

(a) in the case of an individual:

(i) dies; or

(ii) becomes bankrupt; or

(b) in any other case:

(i) is wound up or otherwise ceases to exist; or

(ii) becomes subject to any form of liquidation or

administration (however described).

Another person may apply to continue with substantive application

(2) The following persons may apply to the Tribunal to continue with

the substantive application:

(a) in any case

a person representing the applicant for the

substantive application;

(b) if the substantive application is for review of a decision

person whose interests are affected by the decision.

(3) If a person applies to continue with the substantive application, the

Tribunal may, on request or on its own initiative, give such orders

as appear to the Tribunal to be appropriate in the circumstances.

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Section 85

Administrative Review Tribunal Bill 2023

No. , 2023

Tribunal may dismiss substantive application

(4) The Tribunal may dismiss the substantive application if:

(a) the Tribunal considers that:

(i) there is no person representing the applicant for the

substantive application; and

(ii) if the substantive application is for review of a

decision

--the decision does not affect any person's

interests other than the applicant; or

(b) no application to continue with the substantive application is

made within 3 months after the Tribunal becomes aware of

the event mentioned in paragraph (1)(a) or (b) occurring in

relation to the applicant for the substantive application.

85 Tribunal may remit decision to decision-maker for

reconsideration

Tribunal may remit decision to decision-maker

(1) At any time during a proceeding for review of a reviewable

decision, the Tribunal may remit the decision to the decision-maker

and ask the decision-maker to reconsider the decision.

Decision-maker must reconsider decision

(2) If the Tribunal remits the decision to the decision-maker, the

decision-maker must reconsider the decision and do one of the

following:

(a) affirm the decision;

(b) vary the decision;

for the decision set aside.

After reconsideration

(3) After the decision-maker complies with subsection (2), the

proceeding resumes.

(4) The applicant may:

(a) proceed with the application; or

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(b) withdraw the application under section 95.

Review continues in relation to decision as updated by

decision-maker

(5) If the decision-maker varies the decision, the application for review

of the decision is taken to be an application for review of the

decision as varied instead.

(6) If the decision-maker sets aside the decision and makes a new

decision in substitution for the decision set aside, the application

for review of the decision is taken to be an application for review

of the new decision instead.

Timeframes for reconsideration

(7) The decision-maker must comply with subsection (2) within the

period specified by the Tribunal when remitting the decision to the

decision-maker.

(8) However, the Tribunal may, on the application of the

decision-maker, extend the period within which the decision-maker

must comply with subsection (2).

(9) The decision-maker is taken to have affirmed the decision if the

decision-maker does not comply with subsection (2) within the

period specified by the Tribunal.

(10) For the purposes of subsection (9), take into account any extension

under subsection (8) of the period that occurs before the period

would otherwise expire.

86 Tribunal may vary or revoke Tribunal order

Subject to this Act, a power of the Tribunal to make an order

includes the power to revoke or vary the order.

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Division 6

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Section 87

Administrative Review Tribunal Bill 2023

No. , 2023

Subdivision C

Dispute resolution processes

87 Tribunal may refer to dispute resolution process

General rules

(1) At any time during a proceeding, the Tribunal may, by order:

(a) direct that the proceeding, or any part of or matter arising out

of the proceeding, be referred to a dispute resolution process;

and

(b) direct any of the following persons to conduct the dispute

resolution process:

(i) a member;

(ii) a registrar;

(iii) a person engaged under subsection 90(1).

Note:

A non-participating party to the proceeding is not required to appear at

the dispute resolution process unless the Tribunal orders the party to

do so under section 63.

(2) The parties to the proceeding appearing at the dispute resolution

process must act in good faith in relation to the conduct of the

dispute resolution process.

Exception

guidance and appeals panel proceedings

(3) Despite subsection (1), the Tribunal must not direct that a guidance

and appeals panel proceeding, or any part of or matter arising out

of a guidance and appeals panel proceeding, be referred to a

dispute resolution process other than conferencing.

88 Evidence in dispute resolution process not admissible elsewhere

General rule

(1) Evidence of anything said, any act done or any information

disclosed at or for the sole purpose of a dispute resolution process

is not admissible:

(a) in a proceeding in the Tribunal; or

(b) in any court; or

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Tribunal powers

Division 6

Section 89

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Administrative Review Tribunal Bill 2023

Commonwealth or of a State or Territory to hear evidence; or

(d) in any proceedings before a person authorised by the consent

of the parties to hear evidence.

Exception

agreement of parties

(2) Subsection (1) does not prevent the admission, at a proceeding in

the Tribunal, of particular evidence if each party to the proceeding

(other than a non-participating party) agrees to the evidence being

admitted.

Exception

certain reports admissible

(3) Subsection (1) does not prevent the admission, at a proceeding in

the Tribunal, of a report prepared by a person conducting a dispute

resolution process in the form of a neutral evaluation.

(4) However, subsection (3) does not apply if a party to the proceeding

notifies the Tribunal before the start of the hearing of the

proceeding that the party objects to the report being admitted.

89 Eligibility of person conducting dispute resolution process to sit

as a member

A member of the Tribunal as constituted for the purposes of a

proceeding must no longer take part in the proceeding if:

(a) the member conducts a dispute resolution process in relation

to the proceeding; and

(b) a party to the proceeding notifies the Tribunal as soon as

practicable after the dispute resolution process that the party

objects to the member participating in the proceeding.

Note:

The President may reconstitute the Tribunal for the purposes of the

proceeding (see sections 43 and 45).

90 Engagement of persons to conduct dispute resolution processes

(1) The Principal Registrar may, on behalf of the Commonwealth,

engage a person to conduct a kind of dispute resolution process.

Proceedings

Part 4

Public interest certificates and interventions

Division 7

Section 91

No. , 2023

Administrative Review Tribunal Bill 2023

Division

7--Public interest certificates and interventions

91 Disclosure of information

public interest certificate

Public interest certificate

Attorney-General of the

Commonwealth

(1) The Attorney-General of the Commonwealth may certify, in

writing, that the disclosure of specified information, or the content

of a specified document, in a proceeding in the Tribunal would be

contrary to the public interest for one or more of the following

reasons:

(a) the disclosure would prejudice the security, defence or

international relations of the Commonwealth;

(b) the disclosure would involve the disclosure of deliberations

or decisions of the Cabinet or of a Committee of the Cabinet;

Crown in right of the Commonwealth in a judicial

proceeding that the information or the matter contained in the

document should not be disclosed.

Public interest certificate

Attorney-General of State, Australian

Capital Territory or Northern Territory

(2) The Attorney-General of a State, the Australian Capital Territory

or the Northern Territory may certify, in writing, that the disclosure

of specified information, or of the content of a specified document,

in a proceeding in the Tribunal would be contrary to the public

interest for one or more of the following reasons:

(a) the disclosure would involve the disclosure of deliberations

or decisions of the Cabinet, or of a Committee of the Cabinet,

of the State or Territory;

(b) any other reason that could form the basis for a claim by the

Crown in right of the State or Territory in a judicial

proceeding that the information or the matter contained in the

document should not be disclosed.

Part 4

Proceedings

Division 7

Public interest certificates and interventions

Section 91

Administrative Review Tribunal Bill 2023

No. , 2023

Effect of certificate

(3) If a certificate is given under this section in relation to information

or a document in relation to a proceeding, a person is not excused

from disclosing the information, or giving the document, to the

Tribunal for the purposes of the proceeding if the person is

required by or under this Act to do so.

(4) However, the Tribunal must do all things necessary to ensure that:

(a) subject to subsection (6), the information or document is not

disclosed or given to any person other than:

(i) a member in the course of the performance of the

member's duties; or

(ii) the Principal Registrar in the course of the performance

of the Principal Registrar's duties; or

(iii) a staff member in the course of the performance of the

staff member's duties; and

(b) in the case of a document given to the Tribunal

the

document is returned, to the person who gave it to the

Tribunal, as soon as practicable after the Tribunal has

finished considering the document.

(5) A certificate under subsection (1) or (2) is not a legislative

instrument.

Tribunal may allow disclosure in limited cases

(6) The Tribunal may decide to make the information or document

available to any or all of the parties to the proceeding if either of

the following applies:

(a) the certificate was given by the Attorney-General of the

Commonwealth other than for the reason set out in

paragraph (1)(a) or (b);

(b) the certificate was given by the Attorney-General of a State

or Territory other than for the reason set out in

paragraph (2)(a).

(7) In deciding whether to make the information or document

available, the Tribunal must:

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(a) take into account as a primary consideration the principle that

it is desirable, in the interest of ensuring the effective

performance of the Tribunal's functions, for the parties to the

proceeding to be made aware of all relevant matters; and

(b) have regard to any reason specified in the certificate.

(8) For the purposes of making a decision under subsection (6), the

Tribunal must be constituted:

(a) as if the making of the decision were a separate proceeding;

and

(b) by a member who is, or by members at least one of whom is,

a Judge or a Deputy President.

Exclusion of other laws

(9) This section excludes the operation of any law that relates to the

public interest and would otherwise apply in relation to the

disclosure of information, or of the content of documents, in a

proceeding in the Tribunal.

92 Attorney-General may intervene for public interest reasons

Attorney-General may intervene

(1) If a person is asked a question in the course of giving evidence at

the hearing of a proceeding in the Tribunal:

(a) the Attorney-General of the Commonwealth may inform the

Tribunal that, in the opinion of the Attorney-General, the

answering of the question would be contrary to the public

interest for a reason mentioned in subsection 91(1); or

(b) the Attorney-General of a State, the Australian Capital

Territory or the Northern Territory may inform the Tribunal

that, in the opinion of the Attorney-General, the answering of

the question would be contrary to the public interest for a

reason mentioned in subsection 91(2).

General rule

(2) If an Attorney-General so informs the Tribunal, the person is

excused from answering the question.

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Division 7

Public interest certificates and interventions

Section 93

Administrative Review Tribunal Bill 2023

No. , 2023

Exceptions

(3) However, the person must answer the question if:

(a) for a reason covered by paragraph 91(1)(c) or (2)(b)

the

Tribunal decides that the answering of the question would

not be contrary to the public interest; or

(b) in any case

the Federal Court, on an appeal under section

172 or a reference under section 185, decides that answering

the question would not be contrary to the public interest.

(4) For the purposes of making a decision under paragraph (3)(a), the

Tribunal must be constituted:

(a) as if the making of the decision were a separate proceeding;

and

(b) by a member who is, or by members at least one of whom is,

a Judge or a Deputy President.

93 Attorney-General is party to proceeding

Public interest certificates

(1) The Attorney-General of the Commonwealth or of a State, the

Australian Capital Territory or the Northern Territory is a party to

a proceeding in the Tribunal if:

(a) that Attorney-General gives a certificate under section 91 in

relation to the proceeding; and

(b) the certificate does not specify a reason set out in

paragraph 91(1)(a) or (b) or (2)(a); and

proceeding.

Attorney-General intervening

(2) The Attorney-General of the Commonwealth or of a State, the

Australian Capital Territory or the Northern Territory is taken to be

a party to a proceeding in the Tribunal if that Attorney-General:

(a) informs the Tribunal under subsection 92(1) that the

answering of a question at the hearing of the proceeding

would be contrary to the public interest; and

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Public interest certificates and interventions

Division 7

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Administrative Review Tribunal Bill 2023

(b) would not otherwise be a party to the proceeding.

94 Public interest decisions made by Tribunal

When this section applies

(1) This section applies if, in relation to a proceeding (the

primary

proceeding

(a) an Attorney-General certifies under section 91 that the

disclosure of specified information, or the content of a

specified document, would be contrary to the public interest;

and

(b) the Tribunal makes a decision (the

public interest decision

)

under subsection 91(6) in relation to the information, or the

content of the document.

(2) This section also applies if, in relation to a proceeding (the

primary

proceeding

(a) an Attorney-General informs the Tribunal under section 92

that the answering of a question would be contrary to the

public interest; and

(b) the Tribunal makes a decision (the

public interest decision

)

under paragraph 92(3)(a) in relation to the answering of the

question.

Tribunal must give reasons for decision

(3) The Tribunal must, as soon as practicable after making the public

interest decision, give each party to the primary proceeding a

statement of reasons for the decision.

Appeals to Federal Court

(4) For the purposes of section 172 (party may appeal), the public

interest decision is to be treated as:

(a) the decision of the Tribunal in a separate proceeding; and

(b) made by the Tribunal constituted for the purposes of the

public interest decision.

Proceedings

Part 4

Decision

Division 8

Section 95

No. , 2023

Administrative Review Tribunal Bill 2023

Division

8--Decision

Subdivision A

Withdrawing and dismissing applications

95 Applicant may withdraw application

(1) The applicant may, at any time, by:

(a) giving written notice to the Tribunal; or

(b) notifying the Tribunal in any other manner specified for the

application in the practice directions;

withdraw an application made to the Tribunal.

(2) If the applicant withdraws the application, the Tribunal is taken to

have dismissed the application.

96 Tribunal may dismiss application if parties consent

The Tribunal may, at any time, dismiss an application made to the

Tribunal if the Tribunal has the consent of the parties to the

proceeding in relation to the application (other than any

non-participating party).

97 Tribunal must dismiss application if decision is not reviewable

decision

The Tribunal must dismiss an application if:

(a) the application is made for review of a decision; and

(b) the Tribunal is satisfied that the decision is not reviewable by

the Tribunal.

98 Tribunal may dismiss application if fee is not paid

The Tribunal may dismiss an application if a fee payable by the

applicant to the Tribunal in respect of the application is not paid by

the time prescribed by the rules.

Part 4

Proceedings

Division 8

Decision

Section 99

Administrative Review Tribunal Bill 2023

No. , 2023

99 Tribunal may dismiss application if applicant does not appear

If:

(a) the applicant fails to appear at a Tribunal case event that

relates to a proceeding in relation to an application; and

(b) the Tribunal is satisfied that the applicant received

appropriate notice of the date, time and place of the Tribunal

case event;

the Tribunal may dismiss the application.

Note 1:

Tribunal case events include hearings, directions hearings and dispute

resolution processes (see the definition of

Tribunal case event

section 4).

Note 2:

For how to appear at a Tribunal case event, see section 73.

100 Tribunal may dismiss application if applicant fails to comply

with order etc.

The Tribunal may dismiss an application made to the Tribunal if

the applicant fails to do either of the following within a reasonable

time:

(a) proceed with the application;

(b) comply with this Act or an order of the Tribunal in relation to

the proceeding in relation to the application.

101 Tribunal may dismiss application if frivolous, vexatious etc.

(1) The Tribunal may, at any time, dismiss an application made to the

Tribunal if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance;

(b) has no reasonable prospects of success; or

(2) If the Tribunal dismisses an application (the

substantive

application

) under subsection (1), the Tribunal may, on application

by a party to the proceeding in relation to the substantive

application or on its own initiative, order that the applicant for the

substantive application must not, without leave of the Tribunal,

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Decision

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Section 102

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Administrative Review Tribunal Bill 2023

make a subsequent application to the Tribunal of a specified kind

or kinds.

(3) The order has effect despite any other provision of this Act or any

other Act.

102 Reinstatement of application

When this section applies

(1) This section applies if the Tribunal dismisses an application.

Note:

An application may be dismissed in specified circumstances (see

sections 20, 84 and 96 to 101). In addition, an application is taken to

have been dismissed if the applicant withdraws it (see section 95).

Tribunal may reinstate on own initiative

(2) If the Tribunal considers that the application was dismissed in

error, the Tribunal may on its own initiative reinstate the

application and make such orders as appear to the Tribunal to be

appropriate in the circumstances.

(3) Despite subsection (2), the Tribunal must not reinstate an

application under subsection (2) if the application was dismissed

under section 96 (Tribunal may dismiss application if parties

consent).

(4) Despite subsection (2), if more than 28 days have passed since an

application was dismissed, the Tribunal must not reinstate the

application under subsection (2) unless the Tribunal is satisfied that

special circumstances justify reinstating the application.

Party may apply for reinstatement if application dismissed in error

(5) A party to the proceeding in relation to the application may apply

to the Tribunal for reinstatement of the application on the grounds

of error within 28 days after the party receives notice that the

application is dismissed (or such longer period as the Tribunal, in

special circumstances, allows).

(6) If a party applies under subsection (5) and the Tribunal considers

that the application was dismissed in error, the Tribunal may

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Decision

Section 103

Administrative Review Tribunal Bill 2023

No. , 2023

reinstate the application and make such orders as appear to the

Tribunal to be appropriate in the circumstances.

Parties can apply for reinstatement in other specified

circumstances

(7) If the application is dismissed under:

(a) section 95 (applicant may withdraw application); or

(b) section 99 (Tribunal may dismiss application if applicant

does not appear); or

fails to comply with order etc.);

a party to the proceeding in relation to the application may apply to

the Tribunal for reinstatement of the application within 28 days

after the party receives notice that the application is dismissed (or

such longer period as the Tribunal, in special circumstances,

allows).

(8) However, the applicant cannot apply if the application is dismissed

under section 95 (applicant may withdraw application).

(9) If a party applies under subsection (7) and the Tribunal considers it

appropriate to reinstate the application, the Tribunal may reinstate

the application and make such orders as appear to the Tribunal to

be appropriate in the circumstances.

Subdivision B

Decisions agreed by parties

103 If parties reach agreement

review of decisions only

Tribunal may make decision agreed by parties

(1) If, at any time:

(a) the parties to a proceeding for review of a decision agree on

the terms of a decision of the Tribunal:

(i) in the proceeding; or

(ii) in relation to a part of the proceeding; or

(iii) in relation to a matter arising out of the proceeding;

that would be acceptable to the parties; and

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(b) the terms of the agreement are reduced to writing, signed by

or on behalf of the parties and given to the Tribunal; and

resolution process under Subdivision C of Division 6

days pass after the terms of the agreement are given to the

Tribunal and none of the parties has notified the Tribunal in

writing that the party wishes to withdraw from the

agreement; and

(d) the Tribunal is satisfied that a decision in the terms of the

agreement or consistent with those terms would be within the

powers of the Tribunal;

the Tribunal may act in accordance with subsection (2) or (3).

Decision agreed by parties

(2) If the agreement reached is an agreement on the terms of a decision

of the Tribunal in the proceeding, the Tribunal may, without

holding or completing the hearing of the proceeding, make a

decision in accordance with those terms.

Tribunal does not need to deal with agreed part or matter

(3) If the agreement relates to:

(a) a part of the proceeding; or

(b) a matter arising out of the proceeding;

the Tribunal may, in its decision in the proceeding, give effect to

the terms of the agreement without dealing (or further dealing)

with that part or that matter at the hearing of the proceeding.

Variation or revocation of decision

(4) The Tribunal may vary or revoke a decision in relation to a

proceeding, to the extent the decision is made in accordance with

subsection (2) or (3), if:

(a) the parties to the proceeding reach agreement on the variation

or revocation; and

(b) the terms of the agreement are reduced to writing, signed by

or on behalf of the parties and given to the Tribunal; and

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Division 8

Decision

Section 104

Administrative Review Tribunal Bill 2023

No. , 2023

the Tribunal is satisfied that it

would have been within the powers of the Tribunal to have

made the decision as varied.

Subdivision C

Decision on review of reviewable decision

104 When this Subdivision applies

This Subdivision applies in relation to an application for review of

a reviewable decision.

105 Tribunal decision on review of reviewable decision

In relation to the reviewable decision, the Tribunal must make a

decision:

(a) affirming the reviewable decision; or

(b) varying the reviewable decision; or

(i) making a decision in substitution for the reviewable

decision; or

(ii) remitting the matter to the decision-maker for

reconsideration in accordance with any orders or

recommendations of the Tribunal.

106 Circumstances in which Tribunal may reach decision without

hearing

review of decisions only

Tribunal may make decision without hearing in certain

circumstances

(1) The Tribunal may make its decision in the proceeding in relation to

the application after considering the documents and things given to

the Tribunal and without holding the hearing of the proceeding if

any of subsections (2) to (5) applies.

Parties consent

(2) This subsection applies if:

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Decision

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(a) all of the parties to the proceeding consent to the proceeding

being determined without the hearing of the proceeding; and

(b) it appears to the Tribunal that the issues for determination in

the proceeding can be adequately determined in the absence

of the parties to the proceeding.

Where only parties are applicant and non-participating party

(3) This subsection applies if:

(a) the only parties to the proceeding are the applicant and a

non-participating party; and

(b) either:

(i) the decision is wholly in favour of the applicant; or

(ii) the applicant requests the Tribunal to make its decision

without holding the hearing of the proceeding; and

the proceeding can be adequately determined in the absence

of the parties to the proceeding.

Party fails to comply

(4) This subsection applies if:

(a) a party to the proceeding fails to comply with this Act or an

order of the Tribunal in relation to the proceeding within a

reasonable time; and

(b) it appears to the Tribunal that the issues for determination in

the proceeding can be adequately determined in the absence

of the parties to the proceeding.

Party fails to appear

(5) This subsection applies if:

(a) a party to the proceeding fails to appear at a Tribunal case

event that relates to the proceeding; and

(b) the party is not a non-participating party; and

notice of the date, time and place of the Tribunal case event;

and

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Section 107

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(d) it appears to the Tribunal that the issues for determination in

the proceeding can be adequately determined in the absence

of the parties to the proceeding.

Note 1:

Tribunal case events include hearings, directions hearings and dispute

resolution processes (see the definition of

Tribunal case event

section 4).

Note 2:

For how to appear at a Tribunal case event, see section 73.

107

When Tribunal's decision on review comes into operation

General rule

(1) A decision of the Tribunal in the proceeding in relation to the

application comes into operation when it is given to the parties to

the proceeding.

Exception

Tribunal specifies a later date

(2) Despite subsection (1), if the Tribunal specifies in a decision that

the decision comes into operation at a time after the decision is

given to the parties, the decision comes into operation at the

specified time.

Exception

Tribunal ordered stay of reviewable decision

(3) Despite subsections (1) and (2), if an order under section 32

staying or otherwise affecting the operation of:

(a) in any case

the reviewable decision; or

(b) if the application is a guidance and appeals panel application

taken to be made because of the referral of a decision of the

Tribunal

the decision affirmed, varied or set aside by the

decision of the Tribunal;

is in force immediately before the Tribunal makes a decision under

section 105 (Tribunal decision on review of reviewable decision)

on the application, the operation of the Tribunal's decision is

stayed until:

the later of the following:

(i) the end of the appeal period;

(ii) the completion of the relevant appeal; or

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(d) in any other case

the end of the appeal period.

(4) For the purposes of paragraph (3)(c), do not take into account any

relevant appeal that is made after the end of the period within

which the relevant appeal may be made.

(5) Subsection (

3) does not apply if the Tribunal's decision is made in

accordance with subsection 103(2) (decision agreed by parties).

Exception

Tribunal or court order

(6) Despite subsection (3):

(a) the Tribunal may order that a decision of the Tribunal comes

into operation at a different time; and

(b) the Federal Court or the Federal Circuit and Family Court of

Australia (Division 2) may order that a decision of the

Tribunal comes into operation at a different time.

Definitions

(7) In this section:

completion

(a) the

completion

of a court appeal occurs when:

(i) in any case

the court appeal is determined,

discontinued, dismissed or disposed of; or

(ii) if a panel appeal is also made and the President refers

the Tribunal's decision to the guidance and appeals

panel

the decision of the Tribunal on the guidance and

appeals panel application taken to be made because of

the referral comes into operation; and

(b) the

completion

of a panel appeal occurs when:

(i)

if the President refers the Tribunal's decision to the

guidance and appeals panel

the decision of the

Tribunal on the guidance and appeals panel application

taken to be made because of the referral comes into

operation; or

(ii) in any other case

the panel appeal is refused.

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court appeal

means an appeal from the Tribunal's decision to the

Federal Court under Division 2 of Part 7 (appeals on questions of

law).

end of the appeal period

means:

(a) if a panel appeal may be made

the later of the following:

(i) the end of the period within which court appeals may be

made;

(ii) the end of the period within which panel appeals may be

made; or

(b) in any other case

the end of the period within which court

appeals may be made.

panel appeal

means an applic

ation to refer the Tribunal's decision

to the guidance and appeals panel under section 123.

relevant appeal

means:

(a) if a panel appeal may be made

a court appeal or a panel

appeal; or

(b) in any other case

a court appeal.

(8) For the purposes of subsection (4) and the definition of

end of the

appeal period

in subsection (7), take into account:

(a) any extension under section 125 of the period within which

panel appeals may be made that occurs before the period

would otherwise expire; and

(b) any extension under subsection 174(2) of the period within

which court appeals may be made that occurs before the

period would otherwise expire.

108 Effect of Tribunal decision to vary or substitute a reviewable

decision

When this section applies

(1) This section applies if the Tribunal:

(a) varies the reviewable decision; or

(b) sets aside the reviewable decision and makes a decision in

substitution for the reviewable decision.

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Decision is taken to be decision of decision-maker

(2) The reviewable decision as varied, or the decision made in

substitution for the reviewable decision, is taken be a decision of

the decision-maker for all purposes other than:

(a) section 16 (decision is taken to be made if timeframe

expires); or

(b) Division 3 of Part 3 (applying for review of decision); or

questions of law to Federal Court); or

(d) Part 10 (notice and information about administrative

decision).

No application for review of varied or substituted decision

(3) Application may not be made to the Tribunal for review of the

reviewable decision as varied or the decision made in substitution

for the reviewable decision.

Note:

In some circumstances, application may be made to refer to the

guidance and appeals panel a decision of the Tribunal to affirm, vary

or set aside a decision (see section 123).

Timing

(4) When the decision of the Tribunal to vary or set aside the

reviewable decision comes into operation, the reviewable decision

as varied, or the decision made in substitution for the reviewable

decision, has effect, or is taken to have had effect, from the time at

which the reviewable decision has or had effect.

(5) Subsection (4) does not apply if the Tribunal orders otherwise.

Part 4

Proceedings

Division 9

Tribunal guidance decisions

Section 109

Administrative Review Tribunal Bill 2023

No. , 2023

Division

9--Tribunal guidance decisions

109 Tribunal guidance decisions

General rule

(1) A decision of the Tribunal is a

Tribunal guidance decision

if:

(a) the decision is made by the Tribunal constituted for the

purposes of a proceeding in accordance with:

(i) section 40 (exception

President refers application for

review that raises issue of significance); or

(ii) section 41 (exception

President, on appeal, refers

Tribunal decision that raises issue of significance); and

(b) the decision is not made in accordance with section 96

(Tribunal may dismiss application if parties consent) or

subsection 103(2) (decision agreed by parties); and

section to be an excluded decision.

Exception

declared by President

(2) The President may, in writing, declare that a decision made by the

Tribunal constituted for the purposes of a proceeding in accordance

with section 40 or 41 is an excluded decision.

(3) A declaration made under subsection (2) is not a legislative

instrument.

(4) The President must publish declarations made under

subsection (2).

110 Tribunal must have regard to Tribunal guidance decisions

General rule

(1) When making a decision in a proceeding in the Tribunal, the

Tribunal must have regard to Tribunal guidance decisions that the

Tribunal considers raise:

(a) facts similar to the facts raised by the proceeding; or

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(b) issues similar to the issues raised by the proceeding.

Exception

member who is a Judge

(2) Subsection (1) does not apply to:

(a) a member who is a Judge; or

(b) the Tribunal constituted for the purposes of a proceeding by a

member who is, or members at least one of whom is, a Judge.

Effect of failure to comply

(3) A failure by the Tribunal to comply with subsection (1) does not

affect the validity of the decision.

Part 4

Proceedings

Division 10

After proceeding ends

Section 111

Administrative Review Tribunal Bill 2023

No. , 2023

Division

10--After proceeding ends

111 Notice of decision and statement of reasons

review of

reviewable decision

When this section applies

(1) This section applies if the Tribunal makes a decision under section

105 in a proceeding for review of a reviewable decision, other than

a decision made in accordance with subsection 103(2) (decision

agreed by parties).

General rules

Tribunal must give decision and statement of

reasons

(2) The Tribunal must give each party to the proceeding the following

things in writing:

(a)

the Tribunal's decision;

(b)

a statement of reasons for the Tribunal's decision;

Tribunal to the guidance and appeals panel under Division 3

of Part 5

notice of that right;

(d) notice of the right of the party to appeal to the Federal Court

under Division 2 of Part 7.

(3) Each thing must be given by the time specified in the practice

directions. If the practice directions do not specify a time, the thing

must be given within 28 days after the day the Tribunal's decision

is made.

(4) The Tribunal may give a decision and the reasons for the decision

orally before giving them in writing.

Exceptions

(5) This section is subject to sections 70 (Tribunal may restrict

publication or disclosure of information) and 91 (disclosure of

information

public interest certificate).

Proceedings

Part 4

After proceeding ends

Division 10

Section 112

No. , 2023

Administrative Review Tribunal Bill 2023

112 Notice of decision and statement of reasons

other proceedings

When this section applies

(1) This section applies if the Tribunal makes a decision finalising a

proceeding in the Tribunal, other than:

(a) a public interest decision mentioned in subsection 94(1) or

(2) (public interest decisions made by Tribunal); or

(b) a decision under section 96 (Tribunal may dismiss

application if parties consent); or

parties); or

(d) a decision under section 105 (Tribunal decision on review of

reviewable decision).

(2) To avoid doubt, this section does not apply in relation to a decision

under section 128 (President decides whether to refer Tribunal

decision to guidance and appeals panel).

Notice of decision

(3) The Tribunal must give each party to the proceeding notice of the

Tribunal's

decision orally or in writing.

General rule

Tribunal must give statement of reasons on request

(4)

The Tribunal may give reasons for the Tribunal's decision to the

parties to the proceeding orally or by giving a statement of reasons

for the decision.

(5) If the Tribunal has not given a party to the proceeding a statement

of reasons for the

Tribunal's

decision, the party may, within 28

days after the day the Tribunal's decision i

s made, request the

Tribunal to give the party a statement of reasons for the Tribunal's

decision.

(6) The request must be given to the Tribunal in writing.

(7) Within 28 days after receiving the request, the Tribunal must give

the party a statement of r

easons for the Tribunal's decision.

Part 4

Proceedings

Division 10

After proceeding ends

Section 113

Administrative Review Tribunal Bill 2023

No. , 2023

Exception

(8) This section is subject to sections 70 (Tribunal may restrict

publication or disclosure of information) and 91 (disclosure of

information

public interest certificate).

113 Tribunal may publish decisions

General rules

(1) The Tribunal may publish its decisions and the reasons for them.

(2) The Tribunal must publish a decision (and the reasons for it) if:

(a) the President considers that the decision:

(i) involves a significant conclusion of law; or

(ii) has significant implications for Commonwealth policy

or administration; or

(b) the decision is:

(i) made by the Tribunal constituted for the purposes of a

proceeding by the guidance and appeals panel; and

(ii) made under section 105 (Tribunal decision on review of

reviewable decision); and

(iii) not made in accordance with subsection 103(2)

(decision agreed by parties).

(3) Publication of Tribunal decisions, and the reasons for them, must

be in accordance with any requirements specified in the practice

directions.

Exception

where disclosure prohibited or restricted by law

(4) However, this section does not authorise the Tribunal to publish

information the disclosure of which is prohibited or restricted by or

under this Act, another Act or an instrument made under an Act.

Note:

The disclosure of information may be prohibited or restricted by

Tribunal order under section 70. For example, while the Tribunal can

publish reasons for a decision in a proceeding that was not heard in

public, the reasons cannot include information covered by a Tribunal

order under section 70.

Proceedings

Part 4

After proceeding ends

Division 10

Section 114

No. , 2023

Administrative Review Tribunal Bill 2023

114 Tribunal may correct error in decision or statement of reasons

(1) If, after the Tribunal makes a decision, the Tribunal considers that

there is an obvious error in the text of:

(a) the decision; or

(b) the statement of reasons for the decision;

the Tribunal may alter the text of the decision or statement.

Note:

The following are examples of obvious errors in the text of a decision

or statement:

(a) an obvious clerical or typographical error in the text of the

decision or statement;

(b) an inconsistency between the decision and the statement of

reasons for the decision.

(2) If the text of a decision is altered under subsection (1), the altered

text is taken to be the decision. If the text of a statement is altered

under subsection (1), the altered text is taken to be the statement.

115 Taxing costs

When this section applies

(1) This section applies if the Tribunal orders a party to a proceeding

in the Tribunal to pay costs incurred by another party to the

proceeding.

Note:

The Tribunal's power to order a party to a proceeding to pay costs is

set out in other legislation.

Party may apply for costs to be taxed

(2) If the parties cannot agree on the amount of the costs, the Tribunal

may, on application by either party, tax the costs.

Amounts are recoverable as debts

(3) An amount that a party (the

first party

) is ordered by the Tribunal

to pay to another party (the

second party

) is recoverable by the

second party as a debt due to the second party by the first party.

Part 4

Proceedings

Division 11

Offences

Section 116

Administrative Review Tribunal Bill 2023

No. , 2023

Division

11--Offences

116 Offence

failure to comply with summons

(1) A person commits an offence if:

(a) the person is given a summons under section 74; and

(b) the person fails to comply with the summons.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

(2) Subsection (1) does not apply if it is not reasonably practicable for

the person to comply with the summons by the time specified in

the summons or within such further period as the Tribunal allows.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

117 Offence

failure to take oath, make affirmation or answer

question

A person appearing before the Tribunal to give evidence at the

hearing of a proceeding or a directions hearing in relation to a

proceeding commits an offence if the person:

(a) fails to take an oath or make an affirmation when required to

do so (see section 76); or

(b) fails to answer a question that the Tribunal requires the

person to answer.

Penalty: Imprisonment for 6 months or 30 penalty units, or both.

118 Offence

giving false or misleading evidence

(1) A person appearing before the Tribunal to give evidence commits

an offence if the person:

(a) gives evidence; and

(b) does so knowing that the evidence:

(i) is false or misleading; or

(ii) omits any matter or thing without which the evidence is

misleading.

Proceedings

Part 4

Offences

Division 11

Section 119

No. , 2023

Administrative Review Tribunal Bill 2023

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Note:

Giving false testimony is also subject to the offence under section 35

of the

Crimes Act 1914

(2) Subsection (1) does not apply if the evidence is not false or

misleading in a material particular.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

119 Offence

breach of non-publication or non-disclosure order

A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct contravenes an order under section 70 (Tribunal

may restrict publication or disclosure of information).

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

120 Offence

contempt of Tribunal

(1) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct obstructs or hinders the Tribunal or an authorised

person in the performance of the functions of the Tribunal.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

(2) A person commits an offence if:

(a) the person engages in conduct; and

(b) the conduct would, if the Tribunal were a court of record,

constitute a contempt of that court.

Penalty: Imprisonment for 12 months or 60 penalty units, or both.

Part 5

Guidance and appeals panel

Division 1

Preliminary

Section 121

Administrative Review Tribunal Bill 2023

No. , 2023

Part

5--Guidance and appeals panel

Division

1--Preliminary

121 Simplified outline of this Part

The guidance and appeals panel is a way of constituting the

Tribunal at a more senior level to:

(a) review some decisions made by decision-makers; or

(b) re-review some decisions that have been reviewed by

the Tribunal.

Broadly, the circumstances in which the Tribunal may be

constituted as a guidance and appeals panel are as follows:

(a) there is an issue of significance to administrative

decision-making;

(b) a Tribunal decision may contain an error of fact or law

materially affecting the Tribunal decision.

The first way a guidance and appeals panel proceeding can start is

that an application to the Tribunal may be referred to the guidance

and appeals panel by the President.

The second way is that, after the Tribunal has affirmed, varied or

set aside a decision made by a decision-maker, a party to the

Tribunal proceeding may apply to the President to refer the matter

to the guidance and appeals panel. Timeframes apply to

applications, but may be extended in some circumstances. The

application to refer the matter does not affect the operation of the

Tribunal decision unless the Tribunal orders otherwise.

If the President decides to refer the matter to the guidance and

appeals panel, the Tribunal constituted as the guidance and appeals

panel reviews the decision of the decision-maker, as affected by

the earlier Tribunal review. Some different Tribunal powers and

procedures apply in relation to guidance and appeals panel

proceedings.

Guidance and appeals panel

Part 5

Preliminary

Division 1

Section 121

No. , 2023

Administrative Review Tribunal Bill 2023

Only some kinds of Tribunal decisions can be referred to the

guidance and appeals panel. For these decisions, a party to the

proceeding in which the Tribunal decision is made can choose to

apply to refer the matter to the guidance and appeals or to appeal

on a question of law to the Federal Court under Part 7.

This Part contains the standard provisions for guidance and appeals

panel proceedings. Other legislation can include provisions that

apply in addition to, or instead of, these standard provisions.

Part 5

Guidance and appeals panel

Division 2

President may refer application on own initiative

Section 122

100

Administrative Review Tribunal Bill 2023

No. , 2023

Division

2--President may refer application on own

initiative

122 President may refer application for review of decision to

guidance and appeals panel

(1) If:

(a) an application for review of a decision is made to the

Tribunal (other than a guidance and appeals panel

application); and

(b) the President is satisfied that:

(i) the application raises an issue of significance to

administrative decision-making; and

(ii) it is appropriate in the interests of justice that the

Tribunal be constituted by the guidance and appeals

panel for the purposes of the proceeding in relation to

the application;

the President may refer the application to the guidance and appeals

panel.

Note 1:

The Tribunal will be constituted by the guidance and appeals panel for

the purposes of the proceeding (see section 40).

Note 2:

If the Tribunal is already constituted for the purposes of the

proceeding, it may be reconstituted (see sections 43 and 47).

(2) For the purposes of subparagraph (1)(b)(ii), the President must

have regard to the circumstances of the parties to the proceeding.

Guidance and appeals panel

Part 5

Party may apply to refer Tribunal decision to guidance and appeals panel

Division 3

Section 123

No. , 2023

Administrative Review Tribunal Bill 2023

101

Division

3--Party may apply to refer Tribunal decision to

guidance and appeals panel

Subdivision A

Application for referral to guidance and

appeals panel

123 Application may be made to refer certain Tribunal decisions to

guidance and appeals panel

General rule

(1) Application may be made to the President to refer a decision of the

Tribunal under section 105 (Tribunal decision on review of

reviewable decision) to the guidance and appeals panel.

Note:

If the President refers a Tribunal decision to the guidance and appeals

panel, the Tribunal will be constituted by the guidance and appeals

panel for the purposes of the proceeding (see sections 41 and 42).

(2) An application may be made under subsection (1) by a person who

was at any time a party to the proceeding in which the decision of

the Tribunal is made.

(3) To avoid doubt, the decision of the Tribunal is not a reviewable

decision.

Note:

If the President refers a Tribunal decision to the guidance and appeals

panel, the review relates to the decision affirmed, varied or set aside

by the Tribunal decision (see subsection 130(2)).

Exception

Tribunal decision made by guidance and appeals

panel or Judge

(4) Subsection (1) does not apply in relation to a decision made by the

Tribunal constituted for the purposes of a proceeding by:

(a) the guidance and appeals panel; or

(b) a member who is, or members at least one of whom is, a

Judge.

Part 5

Guidance and appeals panel

Division 3

Party may apply to refer Tribunal decision to guidance and appeals panel

Section 124

102

Administrative Review Tribunal Bill 2023

No. , 2023

Exception

decision by agreement of parties

(5) Subsection (1) does not apply if the decision is made in accordance

with subsection 103(2) (decision agreed by parties).

Exception

decision of a kind prescribed by the rules

(6) Subsection (1) does not apply in relation to a decision of a kind

prescribed by the rules.

124 How to apply

Manner of applying

(1) An application to refer a decision of the Tribunal to the guidance

and appeals panel may be made in writing or in any other manner

specified for the application in the practice directions.

Information to include

(2) An application by a person to refer a decision of the Tribunal to the

guidance and appeals panel must:

(a) include the information specified for the application in the

practice directions; and

(b) explain why the person considers that:

(i) the decision raises an issue of significance to

administrative decision-making; or

(ii) the decision may contain an error of fact or law

materially affecting the decision.

(3) A failure to comply with subsection (2) does not affect the validity

of the application.

(4) Without limiting section 128, the President may refuse the

application if the application does not comply with subsection (2)

of this section.

125 When to apply to refer Tribunal decision

An application to refer a decision of the Tribunal to the guidance

and appeals panel must be made within the period of 28 days after

Guidance and appeals panel

Part 5

Party may apply to refer Tribunal decision to guidance and appeals panel

Division 3

Section 126

No. , 2023

Administrative Review Tribunal Bill 2023

103

the Tribunal gives a statement of reasons for the decision to the

parties to the proceeding in which the decision is made (or such

longer period as the President, in special circumstances, allows).

Subdivision B

After application to refer decision is made

126 Parties to be notified of application

(1) This section applies if an application is made to refer a decision of

the Tribunal (the

Tribunal decision

) to the guidance and appeals

panel.

(2) The Tribunal must give written notice of the application to the

following:

(a) the applicant;

(b) the decision-maker for the decision affirmed, varied or set

aside by the Tribunal decision;

decision is made.

127 Tribunal decision continues to operate unless Tribunal orders

otherwise

General rule

(1) The making of an application (the

referral application

) to refer a

decision of the Tribunal (the

Tribunal decision

) to the guidance

and appeals panel does not affect the operation of the Tribunal

decision or prevent the taking of action to implement the Tribunal

decision.

Exception

Tribunal may stay operation or implementation

(2) However, on application by a party to the proceeding in which the

Tribunal decision is made, the Tribunal may make an order staying

or otherwise affecting the operation or implementation of the

Tribunal decision if the Tribunal considers that it is desirable to do

so for the purpose of ensuring the effectiveness of the referral

application.

Part 5

Guidance and appeals panel

Division 3

Party may apply to refer Tribunal decision to guidance and appeals panel

Section 127

104

Administrative Review Tribunal Bill 2023

No. , 2023

(3) The order is subject to any conditions specified in the order.

(4) The order has effect until:

(a) if the President refers the Tribunal decision

14 days after

the President refers the Tribunal decision; or

(b) in any other case

the Tribunal refuses the referral

application.

Note:

If the President refers the Tribunal decision, an application is taken to

be made for review of a reviewable decision (see subsection 130(2)).

The Tribunal may stay the operation or implementation of the

reviewable decision for the purpose of ensuring the effectiveness of

the review (see section 32).

(5) Despite subsection (4), if:

(a) the order states that it applies for a period; and

(b) the period ends before the time the order would cease to have

effect under subsection (4) if the period were not stated;

the order has effect until the end of the period.

(6) The Tribunal may, by order, vary or revoke the order on

application by a party to the proceeding in which the Tribunal

decision is made.

Preconditions to making, varying or revoking an order

(7) The Tribunal must not make, vary or revoke an order staying or

otherwise affecting the operation or implementation of the Tribunal

decision unless:

(a) the Tribunal has given the parties to the proceeding in which

the Tribunal decision is made a reasonable opportunity to

make submissions to the Tribunal in relation to the making,

variation or revocation of the order; and

(b) the Tribunal has taken into account the interests of any

person who may be affected by the decision affirmed, varied

or set aside by the Tribunal decision.

(8) However, paragraph (7)(a) does not prevent the Tribunal making,

varying or revoking an order without giving a party an opportunity

to make a submission to the Tribunal if the Tribunal is satisfied

that it is not practicable to give the party the opportunity.

Guidance and appeals panel

Part 5

Party may apply to refer Tribunal decision to guidance and appeals panel

Division 3

Section 128

No. , 2023

Administrative Review Tribunal Bill 2023

105

(9) If the Tribunal makes, varies or revokes an order without giving a

party an opportunity to make a submission as mentioned in

subsection (8), the order, variation or revocation does not take

effect until a notice setting out the terms of the order, variation or

revocation is given to the party.

128 President decides whether to refer Tribunal decision to

guidance and appeals panel

President's decision

(1) If a person applies to refer a decision of the Tribunal (the

Tribunal

decision

) to the guidance and appeals panel, the President may

refer the Tribunal decision to the guidance and appeals panel or

refuse the application.

Requirements for decision

(2) The President may refer the Tribunal decision to the guidance and

appeals panel if the President is satisfied that:

(a) the Tribunal decision raises an issue of significance to

administrative decision-making; or

(b) the Tribunal decision may contain an error of fact or law

materially affecting the Tribunal decision.

(3) However, the President must not refer the Tribunal decision to the

guidance and appeals panel in any of the following circumstances:

(a) a fee payable in relation to the application is not paid by the

time prescribed by the rules;

(b) a circumstance prescribed by the rules.

(4) In deciding whether to refer the Tribunal decision to the guidance

and appeals panel or refuse the application under this section, the

President must have regard to:

(a) the circumstances of the parties to the proceeding in which

the Tribunal decision is made; and

(b) any other matters that the President considers relevant.

Part 5

Guidance and appeals panel

Division 3

Party may apply to refer Tribunal decision to guidance and appeals panel

Section 129

106

Administrative Review Tribunal Bill 2023

No. , 2023

129

Notice of President's decision

(1) This section applies if:

(a) a person applies to refer a decision of the Tribunal (the

Tribunal decision

) to the guidance and appeals panel; and

(b) the President decides to refer the Tribunal decision to the

guidance and appeals panel or refuse the application.

(2)

The President must give notice of the President's decision orally or

in writing to the following:

(a) the person;

(b) the decision-maker for the decision affirmed, varied or set

aside by the Tribunal decision;

decision is made.

Subdivision C

Review after Tribunal decision is referred to

guidance and appeals panel

130 Application for review proceeds if President refers Tribunal

decision to guidance and appeals panel

When this section applies

(1) This section applies if the President refers to the guidance and

appeals panel under section 128 a decision made by the Tribunal

(the

Tribunal decision

) to affirm, vary or set aside a decision (the

original decision

Applicant is taken to have applied for review of decision

(2) The person who applied to refer the Tribunal decision to the

guidance and appeals panel is taken to have applied to the Tribunal

for review of the following decision:

(a) if the Tribunal decision is to affirm the original decision

the

original decision;

(b) if the Tribunal decision is to vary the original decision

the

original decision as varied (an

updated decision

);

Guidance and appeals panel

Part 5

Party may apply to refer Tribunal decision to guidance and appeals panel

Division 3

Section 130

No. , 2023

Administrative Review Tribunal Bill 2023

107

and make a new decision in substitution for it

the new

decision (also an

updated decision

);

(d) if the Tribunal decision is to set aside the original decision

and remit the matter to the decision-maker for

reconsideration

the original decision.

Note 1:

The decision-maker for the original decision is the decision-maker for

the purposes of the review (see section 108).

Note 2:

The Tribunal will be constituted by the guidance and appeals panel for

the purposes of the proceeding for the review (see sections 41 and 42).

Parties to Tribunal decision proceeding are parties to review

proceeding

(3) In addition to the persons who are parties to the proceeding for the

review under section 22, any other party to the proceeding in which

the Tribunal decision is made is a party to the proceeding for the

review.

(4) Subsection (3) is subject to section 65 (certain parties may seek to

withdraw from being a party) and 83 (Tribunal may remove party

from proceeding if party fails to appear or does not comply).

This Act applies differently in relation to the review

(5) The following provisions do not apply in relation to an updated

decision:

(a) Division 3 of Part 3 (applying for review of decision);

(b) section 24 (decision-maker must give Tribunal additional

statement if Tribunal requires

general rule);

decision).

(6) The following provisions do not apply in relation to a guidance and

appeals panel application:

(a) section 21 (parties and potential parties to be notified of

application);

(b) section 23 (decision-maker must give reasons and documents

to Tribunal

general rule).

Part 5

Guidance and appeals panel

Division 3

Party may apply to refer Tribunal decision to guidance and appeals panel

Section 131

108

Administrative Review Tribunal Bill 2023

No. , 2023

(7) This Act applies in relation to an updated decision or a guidance

and appeals panel application subject to any modifications

prescribed by the regulations.

131 Tribunal may have regard to records and documents from

earlier proceeding

In a proceeding in relation to a guidance and appeals panel

application taken to be made because the President refers a

decision of the Tribunal to the guidance and appeals panel, the

Tribunal may have regard to:

(a) any record of the proceeding (the

earlier proceeding

) in

which the decision of the Tribunal is made (including a

record of any evidence taken in the earlier proceeding); and

(b) any document or thing relating to the earlier proceeding

given to the Tribunal; and

proceeding.

Proceedings in Intelligence and Security jurisdictional area

Part 6

Preliminary

Division 1

Section 132

No. , 2023

Administrative Review Tribunal Bill 2023

109

Part

6--Proceedings in Intelligence and Security

jurisdictional area

Division

1--Preliminary

132 Simplified outline of this Part

Special rules apply when the Tribunal's powers in relation to a

proceeding are exercised in the Intelligence and Security

jurisdictional area. This occurs if the proceeding relates to an

intelligence and security decision or the President otherwise directs

(for example where the President is satisfied national security

information would be involved).

The standard Tribunal process is adjusted, including in relation to

applicants, decision-makers, parties, constitution of the Tribunal,

dispute resolution processes and Tribunal decisions. Some

adjustments apply to all intelligence and security decisions, others

only apply to some kinds of decisions.

Referral to the guidance and appeals panel is not available in

relation to intelligence and security decisions. However, for some

kinds of intelligence and security decisions reviewed by the

Tribunal, the applicant may apply to the Tribunal for the decision

to be reviewed again.

Special rules are also in place to protect information. These deal

with:

(a) whether statements of reasons can be given; and

(b) what information is to be provided to the Tribunal and

parties to proceedings; and

(d) how the information is to be used and protected.

For example, different requirements apply to information covered

by certificates issued on public interest grounds.

Part 6

Proceedings in Intelligence and Security jurisdictional area

Division 1

Preliminary

Section 133

110

Administrative Review Tribunal Bill 2023

No. , 2023

133 How this Part applies

Interaction with other provisions

(1) This Part:

(a) applies despite any other provision of this Act, the

regulations, the rules or the practice directions; but

(b) unless this Part provides otherwise

does not limit the

operation of any such provision to the extent that the

provision is capable of operating concurrently with this Part.

(2) To avoid doubt, this Part does not limit Division 6 of Part 7

(sending and disclosing documents).

Assessments to be treated as decisions

(3) To avoid doubt, this Act applies in relation to criminal intelligence

assessments, security assessments and security clearance suitability

assessments as if:

(a) those assessments were decisions; and

(b) the making of those assessments were the making of

decisions.

134 Proceedings to be conducted in Intelligence and Security

jurisdictional area

Reviews of intelligence and security decisions

(1)

The Tribunal's powers in

relation to a proceeding that relates to an

intelligence and security decision are to be exercised in the

Intelligence and Security jurisdictional area.

Other proceedings involving national security information

(2) If the President is satisfied that any other proceeding in the

Tribunal would involve national security information, the President

may direct that the Tribunal's powers in relation

to the proceeding

are to be exercised in the Intelligence and Security jurisdictional

area.

Proceedings in Intelligence and Security jurisdictional area

Part 6

Preliminary

Division 1

Section 135

No. , 2023

Administrative Review Tribunal Bill 2023

111

(3) The President may do so:

(a) on application by a party to the proceeding; or

(b)

on the President's own initiative.

Other proceedings generally

(4)

To avoid doubt, this section does not limit the President's power

under subsection 196(4) to direct that the powers of the Tribunal in

relation to any other proceeding are to be exercised in the

Intelligence and Security jurisdictional area.

135 Operation in relation to decision-maker

When this section applies

(1) This section applies:

(a) in relation to a proceeding for review of an intelligence and

security decision, other than an exempt security record

decision; and

(b) for the purposes of the operation of this Act in relation to the

decision.

Person taken to be decision-maker

general rule

(2) For a decision mentioned in column 1 of an item in the following

table, the decision-maker is taken to be the person mentioned in

column 2 of the item.

Who is taken to be the decision-maker

Item

Column 1

Decision

Column 2

Person taken to be decision-maker

Criminal intelligence assessment

The Chief Executive Officer of the

Australian Crime Commission

Foreign acquisitions and takeovers

decision

The Treasurer

Preventative detention decision

The AFP Commissioner

Security assessment

The Director-General of Security

Security clearance decision

The Director-General of Security

Part 6

Proceedings in Intelligence and Security jurisdictional area

Division 1

Preliminary

Section 136

112

Administrative Review Tribunal Bill 2023

No. , 2023

Who is taken to be the decision-maker

Item

Column 1

Decision

Column 2

Person taken to be decision-maker

Security clearance suitability

assessment

The Director-General of Security

Exceptions

(3) Subsection (2) does not apply in relation to:

(a) section 54 (Tribunal can exercise powers of decision-maker);

(b) section 85 (Tribunal may remit decision to decision-maker

for reconsideration); or

decision); or

(d) section 108 (effect of Tribunal decision to vary or substitute a

reviewable decision); or

(e) section 163 (security clearance decisions).

136 Reasons for decisions

When this section applies

(1) This section applies in relation to an intelligence and security

decision.

Reasons for decisions

(2) Division 3 of Part 10 (decision-makers to give reasons for

decisions) does not apply in relation to the decision.

137 Meaning of

relevant body

When this section applies

(1) This section applies in relation to a proceeding in the Intelligence

and Security jurisdictional area.

Proceedings in Intelligence and Security jurisdictional area

Part 6

Preliminary

Division 1

Section 137

No. , 2023

Administrative Review Tribunal Bill 2023

113

Meaning of

relevant body

(2) The

relevant body

for a decision mentioned in column 1 of an item

in the following table is the Commonwealth entity or the part of a

Commonwealth entity, or the State or Territory government entity,

mentioned in column 2 of the item.

Meaning of

relevant body

Item

Column 1

Decision

Column 2

Relevant body

Criminal intelligence

assessment

The entity to which the assessment was given

Foreign acquisitions and

takeovers decision

The agency within the national intelligence

community that provided advice to the

Treasurer in relation to the decision

Preventative detention

decision

The agency within the national intelligence

community (if any) that provided advice to the

Australian Federal Police in relation to the

preventative detention order concerned

Security assessment

The entity to which the assessment was given

Security clearance decision The sponsoring agency in relation to the

security clearance

Security clearance

suitability assessment

Both:

(a) the security vetting agency to which the

assessment was given; and

(b) the sponsoring agency in relation to the

security clearance concerned if that agency

was given the assessment by ASIO

Part 6

Proceedings in Intelligence and Security jurisdictional area

Division 2

Starting a review

Section 138

114

Administrative Review Tribunal Bill 2023

No. , 2023

Division

2--Starting a review

Subdivision A

Applications and notice of applications

138 Limits on who can apply for certain reviews

When this section applies

(1) This section applies in relation to an intelligence and security

decision, other than:

(a) an exempt security record decision; or

(b) a preventative detention decision.

Persons who can apply for review

(2) Section 17 (who can apply) does not apply in relation to the

decision.

Note:

The persons who may apply for review of these decisions are

specified in the Acts under which the decisions are made.

139 Additional persons to be notified of applications for review

When this section applies

(1) This section applies:

(a) in relation to an intelligence and security decision; and

(b) in addition to section 21 (parties and potential parties to be

notified of application).

Notice of application

(2) If a person applies to the Tribunal for review of the decision:

(a) the Tribunal must give the agency head written notice of the

application; and

(b) the agency head must then give written notice of the

application to each relevant body.

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140 Applications for decisions to be reviewed again

When this section applies

(1) This section applies in relation to an intelligence and security

decision, other than:

(a) an exempt security record decision; or

(b) a preventative detention decision.

Application for decision to be reviewed again

(2) If the Tribunal has reviewed the decision, the person who applied

for the review may apply to the Tribunal for the decision to be

reviewed again.

(3) The Tribunal must dismiss the application unless the Tribunal is

satisfied that:

(a) further evidence of material significance has become

available; and

(b) the further evidence was not available at the time of the

initial review.

Subdivision B

Information to be provided by agency head

141 Information to be provided by agency head

When this section applies

(1) This section applies:

(a) in relation to an intelligence and security decision, other than

an exempt security record decision; and

(b) instead of Subdivision B of Division 4 of Part 3 (provision of

reasons and documents).

Information to be provided by agency head

(2) If the agency head is given notice of an application for review of

the decision, the agency head must give the Tribunal:

(a) in any case

all the relevant information that:

(i) was used to make the decision; and

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(ii) is available to the agency head; and

(b) if the decision is a security clearance decision

a copy of the

statement of grounds prepared for the decision under

section 83C of the ASIO Act; and

decision:

(i) a copy of the notice given to the person concerned under

subsection 79B(1) of the

Foreign Acquisitions and

Takeovers Act 1975

; and

(ii) a copy of the whole of the notice (without redactions).

Non-disclosure certificates

(3) If the application is for review of a decision mentioned in column 1

of an item in the following table, and a certificate mentioned in

column 2 of the item has been made in relation to the decision, the

agency head must also give the Tribunal the documents mentioned

in column 3 of the item.

Non-disclosure certificates

documents to be given to Tribunal

Item

Column 1

Decision

Column 2

Certificate

Column 3

Documents to be given

Criminal

intelligence

assessment

Certificate under

subsection 36C(5) of

the

Australian Crime

Commission Act 2002

The following:

(a) a copy of the certificate;

(b) a copy of the whole assessment

(without redactions)

Security

assessment

Certificate under

paragraph 38(2)(b) of

the ASIO Act

The following:

(a) a copy of the certificate;

(b) a copy of the whole assessment

(without redactions)

Security

clearance

decision

Certificate under

subsection 83C(6) of

the ASIO Act

A copy of the certificate

Security

clearance

suitability

assessment

Certificate under

paragraph 83A(4)(b)

of the ASIO Act

The following:

(a) a copy of the certificate;

(b) a copy of the whole assessment

(without redactions), including a

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Non-disclosure certificates

documents to be given to Tribunal

Item

Column 1

Decision

Column 2

Certificate

Column 3

Documents to be given

copy of the statement of

grounds prepared for the

assessment under section 82G of

the ASIO Act

Prohibition on disclosure of subsection 79B(1) notices

(4) The Tribunal must not, at any time, permit an applicant to have

access to:

(a) any copy or particulars of a notice (without redaction) given

under subsection 79B(1) of the

Foreign Acquisitions and

Takeovers Act 1975

; or

(b) any matter to which the notice (without redaction) relates.

General rules

(5) Information or a document required under this section must be

given to the Tribunal within 28 days after the agency head is given

notice of the application, or within such further period as the

Tribunal allows.

(6) To avoid doubt, this section applies whether or not the information

or documents are favourable or unfavourable to the applicant.

Subdivision C

Provision of security clearance standards

142 When this Subdivision applies

This Subdivision applies in relation to the review of:

(a) a security clearance decision; or

(b) a security clearance suitability assessment.

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143 Director-General of Security may provide standards

Providing standards

(1) The Director-General of Security may give the Tribunal either or

both of the following:

(a) a copy of any standard (or a part of a standard) certified in

writing by the Director-General as a standard relating to the

Commonwealth's highest level of security clearance that was

used to make the security clearance decision or the security

clearance suitability assessment;

(b) a copy of any standard (or a part of a standard) certified in

writing by the Director-General as a current standard relating

to the Commonwealth's highest level of security clearance.

Note:

A standard relating to the Commonwealth's highest level of security

clearance

is part of the Australian Government's framework of

protective security policy.

Applying standards

(2) If a copy of only one standard (or part) is given, the Tribunal must

apply the standard (or part) in its review of the decision.

(3) If copies of more than one standard (or part) are given, the

Tribunal must, in its review of the decision, apply the standard (or

part) certified by the Director-General as being a current standard.

144 Disclosure of standards

General rule

(1) The Tribunal must do all things necessary to ensure that a copy of

a standard (or a part of a standard) given to the Tribunal under

section 143, or any information contained in the copy, is not

disclosed to the applicant or any person other than:

(a) the Director-General of Security or the Director-

General's

representative; or

(b)

a member in the course of the performance of the member's

duties; or

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the Principal Registrar's duties; or

(d) a staff member in the course of the performance of the staff

member's duties.

Exception

(2) However, subsection (1) does not apply in relation to disclosure to

the applicant or a person representing the applicant to the extent

that the information:

(a) has already been lawfully disclosed to the applicant; or

(b) is disclosed to the applicant with the consent of the

Director-General of Security.

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Division

3--Proceedings

145 Constitution of Tribunal

general rule

When this section applies

(1) This section applies:

(a) in relation to a proceeding for review of a decision in the

Intelligence and Security jurisdictional area, other than a

proceeding for review of a preventative detention decision;

and

(b) instead of section 39 (general rules for constitution of

Tribunal).

Note:

Section 39 continues to apply in relation to incidental and ancillary

proceedings, such those dealing with costs and extensions of time.

Constitution of Tribunal

general rule

(2) The Tribunal must be constituted for the purposes of the

proceeding by:

(a) the President; or

(b) a Deputy President; or

President.

Note:

For constitution of the Tribunal, see Division 4 of Part 4 (constitution

of Tribunal for a proceeding), and for reconstitution of the Tribunal,

see Subdivision D of that Division.

Presiding member

(3) If the Tribunal is constituted for the purposes of the proceeding by

3 members, the presiding member must be:

(a) if the President is one of the members

the President; or

(b) if the President is not one of the members but one or more

Judges are

the most senior (or only) Judge; or

a Deputy President.

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Avoiding conflicts of interest

members who were agency heads

(4) However, none of the members can be a person who is, or was, the

head of an agency within the national intelligence community if:

(a) in any case

the agency is a party to the proceeding; or

(b) if the review relates to an exempt security record decision

the document or record concerned originated with, or was

received from, the agency.

Avoiding conflicts of interest

members who were certain

Ministers

(5) In addition, none of the members can be a person who was:

(a) in any case

the Treasurer; or

(b) the Minister responsible for an agency within the national

intelligence community if:

(i) the agency is a party to the proceeding; or

(ii) if the review relates to an exempt security record

decision

the document or record concerned originated

with, or was received from, the agency.

146 Constitution of Tribunal

preventative detention decisions

When this section applies

(1) This section applies:

(a) in relation to a proceeding for review of a preventative

detention decision; and

(b) instead of section 39 (general rules for constitution of

Tribunal).

Note:

Section 39 continues to apply in relation to incidental and ancillary

proceedings, such those dealing with costs and extensions of time.

Constitution of Tribunal

preventative detention decisions

(2) The Tribunal must be constituted for the purposes of the

proceeding by a single member who must be:

(a) the President; or

(b) a Judicial Deputy President.

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Note:

For constitution of the Tribunal, see Division 4 of Part 4 (constitution

of Tribunal for a proceeding), and for reconstitution of the Tribunal,

see Subdivision D of that Division.

147 Parties to proceedings

When this section applies

(1) This section applies:

(a) in relation to a proceeding for review of an intelligence and

security decision; and

(b) instead of the following provisions:

(i) unless the decision is an exempt security decision

section 22 (parties to proceeding for review);

(ii) section 60 (decision-makers may elect not to participate

in kind of proceeding);

(iii) section 61 (decision-maker who elects not to participate

may be a non-participating party to proceeding);

(iv) section 65 (certain parties may seek to withdraw from

being a party);

(v) section 83 (Tribunal may remove party from proceeding

if party fails to appear or does not comply).

Parties to proceedings

(2) The parties to a proceeding for review of a decision mentioned in

column 1 of an item in the following table are the persons

mentioned in column 2 of the item.

Parties to proceedings

Item

Column 1

Decision

Column 2

Parties to proceeding

Criminal intelligence assessment

The applicant

The Chief Executive Officer of the

Australian Crime Commission

Foreign acquisitions and takeovers

decision

The applicant

The Treasurer

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Parties to proceedings

Item

Column 1

Decision

Column 2

Parties to proceeding

Preventative detention decision

The applicant

The AFP Commissioner

Security assessment

The applicant

The Director-General of Security

Security clearance decision

The applicant

The Director-General of Security

Security clearance suitability

assessment

The applicant

The Director-General of Security

148 Certain hearings must be held in private

When this section applies

(1) This section applies in relation to a proceeding that relates to an

intelligence and security decision, other than an exempt security

record decision.

(2) This section applies subject to:

(a) section 149 (persons entitled to be present at hearings); and

(b) section 158 (security certificates

responsible Minister).

Hearings to be held in private

(3) The hearing of the proceeding must be held in private.

(4) The Tribunal may, by order, give directions in relation to the

persons who may be present at the hearing.

149 Persons entitled to be present at hearings

When this section applies

(1) This section applies:

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(a) in relation to a proceeding for review of an intelligence and

security decision; and

(b) subject to section 158 (security certificates

responsible

Minister).

Persons entitled to be present

(2)

The applicant, and the applicant's representative, are entitled to be

present at the hearing of the proceeding when the Tribunal hears

submissions made, or evidence adduced by:

(a) the agency head (or representative); or

(b) a relevant body.

(3) The following are entitled to be present at the hearing of the

proceeding when the Tribunal hears submissions made, or

evidence adduced by the applicant (or representative):

(a) the agency head (or representative);

(b) a relevant body.

150 Relevant bodies may adduce evidence and make submissions

When this section applies

(1) This section applies in relation to a proceeding for review of an

intelligence and security decision.

Relevant bodies may adduce evidence and make submissions

(2) A relevant body:

(a) is entitled to adduce evidence and make submissions in the

proceeding; and

(b) for the purposes of the following sections, is taken to be a

party to the proceeding:

(i) section 56 (parties and their representatives to assist

Tribunal);

(ii) section 66 (representation before Tribunal);

(iii) section 79 (Tribunal may give directions in relation to

procedure for a proceeding);

(iv) section 151 (order of evidence and submissions);

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(v) section 152 (opportunity for further evidence and

submissions).

151 Order of evidence and submissions

When this section applies

(1) This section applies in relation to a proceeding for review of an

intelligence and security decision.

Order of presentation

(2) Unless it determines otherwise, the Tribunal must hear initial

evidence and submissions from the parties to the proceeding in the

following order:

(a) first

evidence adduced and submissions made by the

agency head;

(b) second

evidence adduced and submissions made by

relevant bodies;

evidence adduced and submissions made by the

applicant.

152 Opportunity for further evidence and submissions

When this section applies

(1) This section applies in relation to a proceeding for review of an

intelligence and security decision.

Further evidence and submissions

(2) The Tribunal must give a party to the proceeding an opportunity to

adduce further evidence and make further submissions in relation

to the further evidence if:

(a)

the party presents the party's case to the Tribunal; and

(b) after that case is presented, another party adduces evidence;

and

the other party, the first-mentioned party should be further

heard.

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(3) To avoid doubt, the Tribunal must not give the applicant

particulars of evidence or a submission in contravention of another

provision of this Act that prohibits or restricts the disclosure of

those particulars.

153 Tribunal may invite person to give evidence

When this section applies

(1) This section applies in relation to a proceeding in the Intelligence

and Security jurisdictional area.

Tribunal may invite person to give evidence

(2) The Tribunal may, on its own initiative and at any stage of the

proceeding, invite a person to give evidence.

154 Certain processes not available

When this section applies

(1) This section applies in relation to an intelligence and security

decision, other than an exempt security record decision.

Dispute resolution

(2) Subdivision C of Division 6 of Part 4 (dispute resolution processes)

does not apply in relation to a proceeding for review of the

decision.

155 Guidance and appeals panel

When this section applies

(1) This section applies in relation to an intelligence and security

decision.

Guidance and appeals panel

(2) Part 5 (guidance and appeals panel) does not apply in relation to:

(a) an application for review of the decision; or

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Section 156

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Division

4--Disclosure of information

156 Duty of Tribunal in relation to security and law enforcement

information

When this section applies

(1) This section applies in relation to a proceeding in the Intelligence

and Security jurisdictional area.

Duty to protect security and law enforcement information

(2) It is the duty of the Tribunal, even though there may be no relevant

certificate under this or any other Act, to ensure, so far as possible,

that information is not communicated or made available to a person

if that communication or availability would prejudice:

(a) the security, defence or international relations of the

Commonwealth; or

(b) law enforcement interests.

157 Restricting publication or disclosure of information

When this section applies

(1) This section applies:

(a) in relation to a proceeding in the Intelligence and Security

jurisdictional area; and

(b) in addition to:

(i) section 70 (Tribunal may restrict publication or

disclosure of information); and

(ii) section 71 (requirements for Tribunal orders about

hearings, publication and disclosure).

Orders restricting publication or disclosure of information

(2) In considering whether to make an order under section 70

restricting publication or other disclosure of information, the

Tribunal must:

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(a) in any case

have regard to the necessity of avoiding the

disclosure of national security information; and

(b) if the proceeding is for review of an intelligence and security

decision

give particular weight to any submission made by,

or on behalf of, the agency head.

Orders restricting publication or disclosure of findings

(3) The Tribunal may, by order, give directions prohibiting or

restricting the publication or other disclosure of the whole or any

part of its findings in the proceeding.

158 Security certificates

responsible Minister

When this section applies

(1) This section applies in relation to a proceeding for review of an

intelligence and security decision, other than an exempt security

record decision.

(2) This section applies in relation to evidence to be adduced or a

submission to be made by or on behalf of any of the following:

(a) the agency head;

(b) a relevant body;

agency head's agency;

(d) an officer or employee of a relevant body;

(e) a person connected with the agency or a relevant body.

Security certificates by responsible Ministers

(3) The responsible Minister may certify, in writing, that disclosing the

evidence or making the submission would be contrary to the public

interest because it would prejudice:

(a) in any case

the security, defence or international relations

of the Commonwealth; or

(b) in the case of a criminal intelligence assessment decision

law enforcement interests.

(4) If the responsible Minister so certifies, when the evidence is

adduced or the submission is made:

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(a) the applicant must not be present; and

(b)

the applicant's representative must not be present except with

the consent of the responsible Minister.

(5) A certificate under this section is not a legislative instrument.

Delegation

security clearance decisions and security clearance

suitability assessments

(6) The ASIO Minister may, in

writing, delegate the ASIO Minister's

power under subsection (3) in relation to a security clearance

decision or a security clearance suitability assessment to:

(a) the Director-General of Security; or

(b) an ASIO employee (within the meaning of the ASIO Act), or

an ASIO affiliate (within the meaning of that Act), who

holds, or is acting in, a position in ASIO that is equivalent to

or higher than a position occupied by an SES employee.

(7) In exercising a power under the delegation, the delegate must

comply with any written directions of the ASIO Minister.

Offence

(8)

An applicant's representative commits an offence if:

(a) a certificate is given under subsection (3) in relation to

evidence or a submission; and

(b) the representative is present when the evidence is adduced or

the submission is made; and

that was part of the submission, to the applicant or to any

other person.

Penalty: Imprisonment for 2 years.

159 Sensitive information certificates

Director-General of Security

When this section applies

(1) This section applies in relation to a proceeding for review of:

(a) a security clearance decision; or

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(b) a security clearance suitability assessment.

Sensitive information certificates

(2) The Director-General of Security may certify, in writing, that, in

the opinion of the Director-General or a person authorised by the

Director-General under this section, disclosure of information (the

sensitive information

) contained in a document given to the

Tribunal by the Director-General in relation to a proceeding:

(a) would be contrary to the public interest for one or more of

the following reasons:

(i) the disclosure would prejudice the security, defence or

international relations of the Commonwealth;

(ii) the disclosure would reveal information that has been

disclosed to the Australian Security Intelligence

Organisation in confidence;

(iii) any other reason that could form the basis for a claim by

the Crown in right of the Commonwealth in a judicial

proceeding that the sensitive information or the matter

contained in the document should not be disclosed; or

(b) could reveal the methodology underlying a psychological

assessment of the person who applied for the decision or

assessment.

(3) A certificate under subsection (2) is not a legislative instrument.

Effect of certificate

(4) If a certificate is given under subsection (2), the Tribunal must do

all things necessary to ensure that the sensitive information is not

disclosed to the applicant or any person other than:

(a) the Director-General of Security or the Director-

General's

representative; or

(b)

a member in the course of the performance of the member's

duties; or

the Principal Registrar's duties; or

(d) a staff member in the course of the performance of the staff

member's duties.

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(5) However, subsection (4) does not apply in relation to disclosure to

the applicant or a person representing the applicant to the extent

that the information:

(a) has already been lawfully disclosed to the applicant; or

(b) is disclosed to the applicant with the consent of the

Director-General of Security.

Authorisations

(6) The Director-General of Security may, in writing, authorise a

person for the purposes of this section if the person is an ASIO

employee (within the meaning of the ASIO Act), or an ASIO

affiliate (within the meaning of that Act), who holds, or is acting

in, a position in ASIO that is equivalent to or higher than a position

occupied by an SES employee.

160 Protecting identities of persons giving evidence

When this section applies

(1) This section applies in relation to a proceeding in the Intelligence

and Security jurisdictional area.

Protecting identities

(2) The Tribunal must do all things necessary to ensure that the

identity of a person is not revealed if:

(a) the person gives, or is to give, evidence on behalf of an

agency within the national intelligence community; and

(b) the head of the agency requests that the identity of the person

is not revealed.

161 Public interest certificates

responsible Minister

When this section applies

(1) This section applies:

(a) in relation to a proceeding for review of an intelligence and

security decision, other than an exempt security record

decision; and

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(b) instead of the following provisions:

(i) section 91 (disclosure of information

public interest

certificate);

(ii) section 92 (Attorney-General may intervene for public

interest reasons);

(iii) section 112 (notice of decision and statement of

reasons

other proceedings) to the extent that it would

apply in relation anything done under this section.

Public interest certificate

(2) The responsible Minister may certify, in writing, that the disclosure

of specified information, or the content of a specified document, in

the proceeding would be contrary to the public interest for one or

more of the following reasons:

(a) the disclosure would prejudice the security, defence or

international relations of the Commonwealth;

(b) the disclosure would involve the disclosure of deliberations

or decisions of the Cabinet or of a Committee of the Cabinet;

assessment

the disclosure would prejudice law enforcement

interests;

(d) any other reason that could form the basis for a claim by the

Crown in right of the Commonwealth in a judicial

proceeding that the information or the matter contained in the

document should not be disclosed.

(3) A certificate under subsection (2) is not a legislative instrument.

Effect of certificate

(4) If a certificate is given under subsection (2) in relation to

information or a document, a person is not excused from disclosing

the information, or giving the document, to the Tribunal for the

purposes of the proceeding if the person is required by or under

this Act to do so.

(5) However, the Tribunal must do all things necessary to ensure that:

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(a) subject to subsection (6), the information or document is not

disclosed or given to any person other than:

(i) a member in the course of the performance of the

member's duties; or

(ii) the Principal Registrar in the course of the performance

of the Principal Registrar's duties; or

(iii) a staff member in the course of the performance of the

staff member's duties; and

(b) in the case of a document given to the Tribunal by an agency

head

the document is returned, to the agency from which it

came, as soon as practicable after the Tribunal has finished

considering the document.

Tribunal may allow disclosure in limited cases

(6) The Tribunal may decide to make the information or document

available to any or all of the parties to the proceeding if the

certificate does not specify the reason set out in paragraph (2)(a),

(b) or (c).

(7) In deciding whether to make the information or document

available, the Tribunal must:

(a) take into account as a primary consideration the principle that

it is desirable, in the interest of ensuring the effective

performance of the Tribunal's functions, for the parties to the

proceeding to be made aware of all relevant matters; and

(b) have regard to any reason specified in the certificate.

Responsible Minister is party to proceeding

(8) The responsible Minister is a party to the proceeding if:

(a) the certificate does not specify a reason set out in

paragraph (2)(a), (b) or (c); and

(b) the responsible Minister would not otherwise be a party to

the proceeding.

Notice of public interest decisions

(9) If the Tribunal decides to make the information or document

available under subsection (6), the Tribunal must, as soon as

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practicable, give each party to the proceeding reasons for the

decision.

Exclusion of other laws

(10) This section excludes the operation of any other law that relates to

the public interest and would otherwise apply in relation to the

disclosure of information, or of the content of documents, in a

proceeding in the Tribunal.

162 Non-disclosure certificates under other Acts

When this section applies

(1) This section applies in relation to a proceeding for review of a

decision mentioned in column 1 of an item in the following table if

a certificate made under the provision mentioned in column 2 of

the item has been given in relation to the decision.

When this section applies

Item

Column 1

Decision

Column 2

Provision under which certificate is made

a criminal intelligence

assessment

subsection 36C(5) of the

Australian Crime

Commission Act 2002

a security assessment

paragraph 38(2)(b) of the ASIO Act

a security clearance decision subsection 83C(6) of the ASIO Act

a security clearance

suitability assessment

paragraph 83A(4)(b) of the ASIO Act

Effect of certificate

(2) The certificate does not excuse a person from disclosing

information, or giving a document, to the Tribunal for the purposes

of the proceeding if the person is required by or under this Act to

do so.

(3) However, the Tribunal must do all things necessary to ensure that:

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Section 162

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(a) the information or document is not disclosed or given to any

person other than:

(i) a member in the course of the performance of the

member's duties; or

(ii) the Principal Registrar in the course of the performance

of the Principal Registrar's duties; or

(iii) a staff member in the course of the performance of the

staff member's duties; and

(b) in the case of a document given to the Tribunal by an agency

head

the document is returned, to the agency from which it

came, as soon as practicable after the Tribunal has finished

considering the document.

Proceedings in Intelligence and Security jurisdictional area

Part 6

Decisions on review

Division 5

Section 163

No. , 2023

Administrative Review Tribunal Bill 2023

137

Division

5--Decisions on review

Subdivision A

Limits on certain decisions

163 Security clearance decisions

When this section applies

(1) This section applies:

(a) in relation to the review of a security clearance decision; and

(b) instead of the following provisions:

(i) section 105 (Tribunal decision on review of reviewable

decision);

(ii) section 112 (notice of decision and statement of

reasons

other proceedings).

Possible decisions

(2) The Tribunal must make a decision:

(a) affirming the security clearance decision; or

(b) setting aside the security clearance decision and remitting the

matter to the decision-maker for reconsideration in

accordance with any orders or recommendations of the

Tribunal.

When Tribunal's decision on review comes into operation

(3) However, section 107 (

when Tribunal's decision on review comes

into operation) applies as if

the Tribunal's decision on the review

were made under section 105.

164 Preventative detention decisions

When this section applies

(1) This section applies in relation to the review of a preventative

detention decision.

Part 6

Proceedings in Intelligence and Security jurisdictional area

Division 5

Decisions on review

Section 165

138

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Decision on review

(2) The following sections do not apply in relation to the review:

(a) section 105 (Tribunal decision on review of reviewable

decision);

(b) section 112 (notice of decision and statement of reasons

other proceedings).

Note:

For the decisions the Tribunal can make on review of a preventative

detention decision, see subsection 105.51(7) of the

Criminal Code

Notice of decision and statement of reasons

(3) However, section 111 (notice of decision and statement of

reasons

review of reviewable decision) applies as if the

Tribunal's decision on the review were made under section 105.

Subdivision B

Recording and communicating decisions

165 When this Subdivision applies

This Subdivision applies:

(a) in relation to the review of an intelligence and security

decision, other than:

(i) an exempt security record decision; or

(ii) a preventative detention decision; and

(b) instead of section 111 (notice of decision and statement of

reasons

review of reviewable decision).

166 Making and recording findings

(1) The Tribunal:

(a) must make and record its findings in relation to the decision;

and

(b) in relation to those findings

may state the opinion of the

Tribunal as to the correctness of, or justification for, any

opinion, advice or information contained in the decision.

(2) The Tribunal must not make findings in relation to the decision

that would have the effect of superseding any information that is

Proceedings in Intelligence and Security jurisdictional area

Part 6

Decisions on review

Division 5

Section 167

No. , 2023

Administrative Review Tribunal Bill 2023

139

(or is taken to be) part of the decision unless those findings state

that, in the Tribunal's opinion, the information:

(a) is incorrect; or

(b) is incorrectly represented; or

security; or

(d) could not reasonably be relevant for the purposes of having

regard to whether there is intelligence or information that

suggests that the person:

(i) may commit a serious and organised crime; or

(ii) may assist another person to commit a serious and

organised crime.

167 Communicating decisions

Written notice of decisions and findings

(1) The Tribunal must give written notice of its decision on the review,

and copies of its findings made under section 166, to:

(a) the applicant; and

(b) the agency head; and

(2) The notice must include notice of the right of the party to appeal to

the Federal Court under Division 2 of Part 7.

(3) The agency head must give the notice and findings to each relevant

body.

Oral notice of decisions and findings

(4) The Tribunal may give its decision and findings orally before

giving them in writing.

Directions about disclosure

(5) The Tribunal may, by order, direct that the whole or a particular

part of its findings, so far as they relate to a matter that has not

Part 6

Proceedings in Intelligence and Security jurisdictional area

Division 5

Decisions on review

Section 168

140

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No. , 2023

already been disclosed to the applicant, is not to be given to the

applicant or a relevant body.

Time for giving written notice and findings

(6) The written notice and findings must be given by the time specified

in the practice directions. If the practice directions do not specify a

time, the written notice and findings must be given within 28 days

after the day the Tribunal's decision is made.

Effect of failure to comply

(7) A failure to comply with this section does not affect the validity of

the T

ribunal's decision.

Effect of non-disclosure provisions

(8) To avoid doubt, this section is subject to other provisions of this

Part that prohibit or restrict the disclosure of information or

documents.

168 Findings relating to procedures or practices of agency

The Tribunal may provide, with the findings given to the agency

head and the responsible Minister, any comments the Tribunal

wishes to make on matters relating to procedures or practices of the

agency that have come to the Tribunal's attention as

a result of the

review.

169 Applicant may publish findings

Subject to any order of the Tribunal, the applicant is entitled to

publish the following, in any manner the applicant thinks fit:

(a)

the Tribunal's decision on the review;

(b) the findings of the Tribunal so far as they have been given to

the applicant.

Appeals and references of questions of law to Federal Court

Part 7

Preliminary

Division 1

Section 170

No. , 2023

Administrative Review Tribunal Bill 2023

141

Part

7--Appeals and references of questions of law

to Federal Court

Division

1--Preliminary

170 Simplified outline of this Part

A party to a proceeding in the Tribunal may appeal to the Federal

Court, on a question of law, from the decision of the Tribunal in

the proceeding. A decision that a person's interests are not affected

by a reviewable decision may also be appealed. Timeframes apply

to making appeals, but may be extended. An appeal does not affect

the operation of a Tribunal decision unless the Court orders

otherwise.

This Part contains the standard provisions for how the Court

operates when dealing with an appeal. Other legislation can include

provisions that apply in addition to, or instead of, these provisions.

The Federal Court may transfer some kinds of appeal to the

Federal Circuit and Family Court of Australia (Division 2).

There are provisions facilitating remittal of matters to the Tribunal

to be decided again.

In some circumstances, the Tribunal may refer a question of law to

the Federal Court.

There are requirements (including some non-disclosure

obligations) relating to sending documents between the Tribunal

and the courts.

Part 7

Appeals and references of questions of law to Federal Court

Division 1

Preliminary

Section 171

142

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171

Part applies whether Tribunal's power is conferred

Commonwealth, State or Territory law

(1) This Part applies in relation to a proceeding before the Tribunal

under power conferred on it by or under:

(a) an Act or an instrument made under an Act; or

(b) a law of a State, the Australian Capital Territory or the

Northern Territory.

(2) This Part has effect in relation to a proceeding before the Tribunal

under power conferred on it by or under a law of a State, the

Australian Capital Territory or the Northern Territory as if a

reference in this Part to a provision of this Act that is not in this

Part were a reference to that provision as applying as a law of the

State or Territory.

Appeals and references of questions of law to Federal Court

Part 7

Appeals on questions of law

Division 2

Section 172

No. , 2023

Administrative Review Tribunal Bill 2023

143

Division

2--Appeals on questions of law

Subdivision A

Appeals on questions of law

172 Party may appeal

(1) A party to a proceeding in the Tribunal may appeal to the Federal

Court, on a question of law, from the decision of the Tribunal in

the proceeding.

Note 1:

A party to a proceeding for review of a decision of the Child Support

Registrar may in some instances appeal instead to the Federal Circuit

and Family Court of Australia (Division 2) (see section 99 of the

Child Support (Registration and Collection) Act 1988

Note 2:

For when a party to a proceeding for review of a decision under the

Migration Act 1958

can make an application to the Federal Court or

the Federal Circuit and Family Court of Australia (Division 2), see

sections 476 and 476A of the

Migration Act 1958

(2) To avoid doubt, subsection (1) does not apply in relation to a

decision under section 128 (President decides whether to refer

Tribunal decision to guidance and appeals panel).

Note:

A decision under section 128 is not a decision of the Tribunal.

173 Decisions about standing

A person may appeal to the Federal Court from a decision of the

Tribunal

that the person's interests are not affected by a reviewable

decision.

174 Time and manner for making appeals

(1) The appeal must be made:

(a) if either of the following applies

no later than 28 days after

the Tribunal gives the party or person its statement of reasons

for the decision:

(i) the Tribunal is required to give a statement of reasons

for the decision;

(ii) the party or person has a right to request a statement of

reasons for the decision and exercises the right; or

Part 7

Appeals and references of questions of law to Federal Court

Division 2

Appeals on questions of law

Section 175

144

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No. , 2023

(b) if the party or person has a right to request a statement of

reasons for the decision and does not exercise the right

later than 28 days after the last day on which the party or

person could have requested a statement of reasons for the

decision; or

no later than 28 days after the party or

person is given the decision.

(2) However, the Federal Court may extend the period within which

the appeal must be made.

(3) If a person applies to refer the decision to the guidance and appeals

panel, for the purposes of counting the 28 days mentioned in

paragraph (1)(a), (b) or (c), do not take into account any day in the

period between the day the application is made and the day the

President refers the decision or refuses the application.

(4) The appeal must be made in the manner prescribed by the Rules of

Court made under the

Federal Court of Australia Act 1976

175 Constitution of Federal Court

(1) The appeal must be heard by a Full Court if the decision is given

by:

(a) a member who is a Judge; or

(b) the Tribunal constituted for the purposes of a proceeding by a

member who is, or members at least one of whom is, a Judge.

(2) The appeal may be heard by a Full Court if:

(a) subsection (1) does not apply; and

(b) the decision is given by:

(i) a member who is a Non-Judicial Deputy President; or

(ii) the Tribunal constituted for the purposes of a

proceeding by a member who is, or members at least

one of whom is, a Non-Judicial Deputy President; or

(iii) the Tribunal constituted for the purposes of a

proceeding by the guidance and appeals panel; and

the President, thinks it appropriate.

Appeals and references of questions of law to Federal Court

Part 7

Appeals on questions of law

Division 2

Section 176

No. , 2023

Administrative Review Tribunal Bill 2023

145

Subdivision B

Jurisdiction and powers of Federal Court

176 Federal Court has jurisdiction

(1) If an appeal is made under Subdivision A, the Federal Court:

(a) has jurisdiction to hear and determine the appeal; and

(b) must hear and determine the appeal; and

decision.

(2) Without limiting the orders it may make, the Federal Court may:

(a) affirm or set aside a decision of the Tribunal; or

(b) remit a matter to be decided again by the Tribunal, either

with or without the taking of further evidence, in accordance

with the directions of the Court.

177 Court may make findings of fact

(1) In hearing the appeal, the Federal Court may make findings of fact

if:

(a) the findings of fact are not inconsistent with findings of fact

made by the Tribunal (other than findings made by the

Tribunal as the result of an error of law); and

(b) it appears to the Court that it is convenient to do so.

(2) In deciding whether it is convenient, the Court must have regard to:

(a) the extent (if any) to which it is necessary to make findings

of fact; and

(b) the means by which those facts might be established; and

and

(d) the relative expense and delay (if any) to the parties if the

Court, rather than the Tribunal, makes the findings of fact;

and

(e) whether any of the parties considers that it is appropriate for

the Court, rather than the Tribunal, to make the findings of

fact; and

(f) any other matters that the Court considers relevant.

Part 7

Appeals and references of questions of law to Federal Court

Division 2

Appeals on questions of law

Section 178

146

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(3) For the purposes of this section, the Court may:

(a) have regard to the evidence given in the proceeding in the

Tribunal; and

(b) receive further evidence.

178

Operation and implementation of Tribunal's decision

General rule

operation or implementation not affected

(1) An appeal to the Federal Court from a decision of the Tribunal

does not affect the operation of the decision or prevent the taking

of action to implement the decision.

Exception

Court may stay operation or implementation

(2) However, for the purpose of ensuring the effectiveness of the

hearing and determination of the appeal, the Court or a Judge of

the Court may make an order staying or otherwise affecting the

operation or implementation of either or both of the following:

(a) the decision of the Tribunal, or a part of that decision;

(b) the reviewable decision to which the decision of the Tribunal

relates, or a part of that reviewable decision.

(3) The order is subject to any conditions specified in the order.

(4) The order remains in force until the decision on the appeal is given.

(5) Despite subsection (4), if:

(a) the order states that it applies for a period; and

(b) the period ends before the decision on the appeal is given;

the order has effect until the end of the period.

(6) The order may be varied or revoked by the Court or a Judge of the

Court.

Appeals and references of questions of law to Federal Court

Part 7

Transfer of appeals to Federal Circuit and Family Court of Australia (Division 2)

Division 3

Section 179

No. , 2023

Administrative Review Tribunal Bill 2023

147

Division

3--Transfer of appeals to Federal Circuit and

Family Court of Australia (Division

179 Transfer of appeals

General rule

Federal Court may transfer appeal

(1) If an appeal under Subdivision A of Division 2 is pending in the

Federal Court, the Federal Court may, by order, transfer the appeal

to the Federal Circuit and Family Court of Australia (Division 2).

(2) The Federal Court may do so:

(a) on the application of a party to the appeal; or

(b) on its own initiative.

Matters to which Federal Court must have regard

(3) In deciding whether to transfer the appeal, the Federal Court must

have regard to the following:

(a) any Rules of Court made for the purposes of section 181;

(b) whether proceedings in respect of an associated matter are

pending in the Federal Circuit and Family Court of Australia

(Division 2);

Court of Australia (Division 2) are sufficient to hear and

determine the appeal;

(d) the interests of the administration of justice.

Jurisdiction and powers of Federal Circuit and Family Court of

Australia (Division 2)

(4) If the Federal Court transfers the appeal, Subdivision B of

Division 2 (jurisdiction and powers of Federal Court) applies in

relation to the Federal Circuit and Family Court of Australia

(Division 2) in the same way as it applies in relation to the Federal

Court.

Part 7

Appeals and references of questions of law to Federal Court

Division 3

Transfer of appeals to Federal Circuit and Family Court of Australia

(Division 2)

Section 180

148

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Exception

certain appeals must not be transferred

(5) However, the Federal Court must not transfer the appeal if it:

(a) relates to a decision given by the Tribunal constituted by a

member who is, or by members at least one of whom is, a

Judge or a Non-Judicial Deputy President; or

(b) is of a kind prescribed by the rules.

180 No appeal from decision to transfer

No appeal lies in relation to a decision of the Federal Court to

transfer an appeal under this Division.

181 Federal Court Rules

(1) Rules of Court made under the

Federal Court of Australia Act

1976

may make provision in relation to the transfer of appeals

under this Division.

(2) In particular, the Rules of Court may set out factors that are to be

taken into account in deciding whether to transfer an appeal.

(3) Before Rules of Court are made for the purposes of this section, the

Federal Court must consult the Federal Circuit and Family Court of

Australia (Division 2).

Appeals and references of questions of law to Federal Court

Part 7

Matters remitted to Tribunal

Division 4

Section 182

No. , 2023

Administrative Review Tribunal Bill 2023

149

Division

4--Matters remitted to Tribunal

182 When this Division applies

This Division applies if:

(a) an appeal is made to the Federal Court from a decision of the

Tribunal; and

(b) either:

(i) the Federal Court remits the matter to the Tribunal to be

decided again; or

(ii) if the Federal Court transfers the appeal to the Federal

Circuit and Family Court of Australia (Division 2)

that court remits the matter to the Tribunal to be decided

again.

183 Constitution of Tribunal

(1) The Tribunal does not need to be constituted for the review by the

person or persons who made the decision.

(2) To avoid doubt, constituting the Tribunal for the review is not a

reconstitution for the purposes of Subdivision D of Division 4 of

Part 4 (reconstitution).

184 Tribunal may rely on previous proceedings

The Tribunal may have regard to:

(a) any record of the proceeding in the Tribunal prior to the

appeal (including a record of any evidence taken in the

proceeding); and

(b) any document or thing relating to the proceeding given to the

Tribunal prior to the appeal;

unless doing so would be inconsistent with the directions of the

court.

Part 7

Appeals and references of questions of law to Federal Court

Division 5

Referring questions of law

Section 185

150

Administrative Review Tribunal Bill 2023

No. , 2023

Division

5--Referring questions of law

185 Referring questions of law

(1) The Tribunal may, with the agreement of the President, refer a

question of law arising in a proceeding in the Tribunal to the

Federal Court for decision.

(2) The Tribunal may do so:

(a) at the request of a party to the proceeding; or

(b) on its own initiative.

(3) The Federal Court has jurisdiction to hear and determine a question

of law referred to it under this section.

(4) If, after consulting the President, the Chief Justice of the Court

considers it appropriate, that jurisdiction is to be exercised by the

Court constituted as a Full Court.

(5) If a question of law arising in any proceeding has been referred to

the Federal Court under this section, the Tribunal must not, in that

proceeding:

(a) give a decision to which the question is relevant while the

reference is pending; or

(b) proceed in a manner, or make a decision, that is inconsistent

with the opinion of the Court on the question.

Appeals and references of questions of law to Federal Court

Part 7

Sending and disclosing documents

Division 6

Section 186

No. , 2023

Administrative Review Tribunal Bill 2023

151

Division

6--Sending and disclosing documents

186 When this Division applies

This Division applies if:

(a) a party to a proceeding in the Tribunal appeals to the Federal

Court from a decision of the Tribunal (see sections 172 and

173); or

(b) the Tribunal refers a question of law arising in a proceeding

to the Federal Court (see section 185).

187 Sending documents

(1) The Tribunal must send to the Federal Court all documents that:

(a) were before the Tribunal in connection with the proceeding;

and

(b) are relevant to the appeal or reference.

(2) If the Federal Court transfers an appeal to the Federal Circuit and

Family Court of Australia (Division 2):

(a) the Federal Court must send the documents concerned to the

Federal Circuit and Family Court of Australia (Division 2);

and

(b) sections 189 (disclosure contrary to public interest) and 190

(disclosure of security clearance documents) apply in relation

to that court in the same way as they apply in relation to the

Federal Court.

(3) To avoid doubt, paragraph (2)(a) has effect despite:

(a) section 91 (disclosure of information

public interest

certificate); and

(b) any provision of Part 6 (proceedings in Intelligence and

Security jurisdictional area); or

of the table in subsection 162(1) (non-disclosure certificates

under other Acts); or

Part 7

Appeals and references of questions of law to Federal Court

Division 6

Sending and disclosing documents

Section 188

152

Administrative Review Tribunal Bill 2023

No. , 2023

(d) section 272 (public interest certificate in relation to statement

of reasons).

188 Returning documents

(1) At the conclusion of the proceeding before the Federal Court in

relation to the appeal or reference, the Court must return to the

Tribunal the documents sent to the Court under this Division.

(2) However, if the Federal Court sends the documents to the Federal

Circuit and Family Court of Australia (Division 2), the Federal

Circuit and Family Court of Australia (Division 2) must return the

documents to the Tribunal at the conclusion of the proceeding

before the Federal Circuit and Family Court of Australia

(Division 2) in relation to the appeal or reference.

189 Disclosure contrary to public interest

When this section applies

(1) This section applies if:

(a) a document is sent to the Federal Court under this Division;

and

(b) a certificate in force under one of the following provisions

certifies that disclosure of a matter contained in the document

would be contrary to the public interest:

(i) subsection 91(1) or (2) (disclosure of information

public interest certificate);

(ii) subsection 161(2) (public interest certificates

responsible Minister);

(iii) a provision mentioned in column 2 of the table in

subsection 162(1) (non-disclosure certificates under

other Acts);

(iv) subsection 272(1) (public interest certificate in relation

to statement of reasons).

Appeals and references of questions of law to Federal Court

Part 7

Sending and disclosing documents

Division 6

Section 190

No. , 2023

Administrative Review Tribunal Bill 2023

153

General rule

(2) The Federal Court must do all things necessary to ensure that the

matter is not disclosed to any person other than a member of the

court as constituted for the purposes of the appeal or reference.

Exception

(3) However, the Federal Court must permit the parties to the

proceeding in the Tribunal to inspect the part of the document that

contains the matter if:

(a) the document is covered by a certificate mentioned in

paragraph (b); and

(b) a reason specified in the certificate in relation to the matter is

not a reason mentioned in:

(i) for a certificate in force under subsection 91(1)

paragraph 91(1)(a) or (b); or

(ii) for a certificate in force under subsection 91(2)

paragraph 91(2)(a); or

(iii) for a certificate in force under subsection 161(2)

paragraph 161(2)(a), (b) or (c); or

(iv) for a certificate in force under subsection 272(1)

paragraph 272(1)(a) or (b); and

should be disclosed to some or all of the parties to the

proceeding in the Tribunal; and

(d) the Court decides that the matter should be so disclosed.

190 Disclosure of security clearance documents

When this section applies

(1) This section applies if a document sent to the Federal Court under

this Division:

(a) is a copy of a standard (or part of a standard) mentioned in

subsection 143(1); or

(b) contains sensitive information as mentioned in subsection

159(2).

Part 7

Appeals and references of questions of law to Federal Court

Division 6

Sending and disclosing documents

Section 191

154

Administrative Review Tribunal Bill 2023

No. , 2023

General rule

(2) The Federal Court must do all things necessary to ensure that the

copy of the standard (or part) and any information contained in it,

or the sensitive information, is not disclosed to any person other

than:

(a) a member of the court as constituted for the purposes of the

proceeding; or

(b) the Director-General of Security or the Director-

General's

representative.

Exception

(3) However, subsection (2) does not apply in relation to a disclosure

to the person who was the applicant, or a person representing the

person who was the applicant, in the proceeding in the Tribunal to

the extent that the information:

(a) has already been lawfully disclosed to the person; or

(b) is disclosed to the person with the consent of the

Director-General of Security.

191 Disclosure to officers of the court

Nothing in this Division prevents the disclosure of a document,

information or a matter contained in a document to an officer of a

court who is performing duties as such an officer.

Members and staff of Tribunal

Part 8

Preliminary

Division 1

Section 192

No. , 2023

Administrative Review Tribunal Bill 2023

155

Part

8--Members and staff of Tribunal

Division

1--Preliminary

192 Simplified outline of this Part

The Tribunal has different jurisdictional areas. Lists may be

established as sub-areas within jurisdictional areas. The President,

or some Non-Judicial Deputy Presidents, may lead a jurisdictional

area. A Deputy President or senior member may lead a list.

Members may be assigned to one or more jurisdictional areas.

Members of the Tribunal have different functions and obligations.

Generally, before a person is appointed as a member (other than a

Judicial Deputy President) the Minister must be satisfied that the

person was assessed as suitable for the appointment through a

merit-based assessment process.

The President must determine a code of conduct and performance

standard for non-judicial members. The President may investigate

some conduct of non-judicial members, and must notify the

Minister if the President reasonably believes there are grounds for

termination of a non-judicial member.

One of the

President's functions is to inform relevant Ministers,

relevant Commonwealth entities and the Council of identified

systemic issues. Jurisdictional area leaders are to inform the

President of systemic issues identified in relation to their

jurisdictional areas.

The President is responsible for managing the administrative

affairs of the Tribunal.

The Principal Registrar's functions include:

(a) assisting the President in managing the administrative

affairs of the Tribunal; and

Part 8

Members and staff of Tribunal

Division 1

Preliminary

Section 192

156

Administrative Review Tribunal Bill 2023

No. , 2023

(b) providing the corporate and registry services of the

Tribunal.

There are provisions related to the terms and conditions on which

members and the Principal Registrar hold office.

The Tribunal Advisory Committee is established. The Committee

consists of the President, the Principal Registrar, the jurisdictional

area leaders and other nominated members.

The staff of the Tribunal must be persons engaged under the

Public

Service Act 1999

. Staff members may be appointed as registrars.

Members and staff of Tribunal

Part 8

Members of Tribunal

Division 2

Section 193

No. , 2023

Administrative Review Tribunal Bill 2023

157

Division

2--Members of Tribunal

Subdivision A

Members and functions

193 Functions of President

The President has the following functions:

(a) to participate as a member of the Tribunal, particularly in

proceedings involving complex, significant or sensitive

matters;

(b) if assigned under section 197 to be a jurisdictional area

leader

to perform the functions of a jurisdictional area

leader;

(d) to manage the performance and conduct of members;

(e) to ensure that the Tribunal operates efficiently and effectively

and continually pursues the objective in section 9;

(f) to provide intellectual leadership to the Tribunal, including

by promoting best practice in decision-making by the

Tribunal;

(g) to provide leadership and guidance to, and engender

cohesiveness and collaboration among, members and staff

members;

(h) to promote the training, education and professional

development of members;

(i) to inform relevant Ministers, relevant Commonwealth

entities and the Council of any systemic issues related to the

making of reviewable decisions that have been identified in

the caseload of the Tribunal;

(j) any other functions conferred on the President by this Act or

another Act;

(k) to engage with civil society in relation to the performance of

any of the above functions;

(l) to do anything incidental or conducive to the performance of

any of the above functions.

Part 8

Members and staff of Tribunal

Division 2

Members of Tribunal

Section 194

158

Administrative Review Tribunal Bill 2023

No. , 2023

194 Functions of Deputy Presidents

Judicial Deputy President

(1) A Judicial Deputy President has the following functions:

(a) to participate as a member of the Tribunal, particularly in

proceedings involving complex, significant or sensitive

matters;

(b) to ensure that the Tribunal continually pursues the objective

in section 9;

by promoting best practice in decision-making by the

Tribunal;

(d) any other functions conferred on a Judicial Deputy President

by this Act or another Act;

(e) to do anything incidental or conducive to the performance of

any of the above functions.

Non-Judicial Deputy President

(2) A Non-Judicial Deputy President has the following functions:

(a) to participate as a member of the Tribunal, particularly in

proceedings involving complex, significant or sensitive

matters;

(b) to ensure that the Tribunal continually pursues the objective

in section 9;

by promoting best practice in decision-making by the

Tribunal;

(d) to assist the President

in the performance of the President's

functions;

(e) if assigned under section 197 to be a jurisdictional area

leader

to perform the functions of a jurisdictional area

leader;

(f) any other functions conferred on a Non-Judicial Deputy

President by this Act or another Act;

(g) to do anything incidental or conducive to the performance of

any of the above functions.

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195 Functions of senior and general members

Senior members

(1) A senior member has the following functions:

(a) to participate as a member of the Tribunal, particularly in

proceedings involving more complex matters;

(b) to assist each jurisdictional area leader of each jurisdictional

area to which the senior member has been assigned in the

performance of the jurisdictional area l

eader's functions;

(d) any other functions conferred on a senior member by this Act

or another Act;

(e) to do anything incidental or conducive to the performance of

any of the above functions.

General members

(2) A general member has the following functions:

(a) to participate as a member of the Tribunal;

(b) any other functions conferred on a general member by this

Act or another Act;

any of the above functions.

Subdivision B

Jurisdictional areas and lists

196 Jurisdictional areas and lists

(1) The following jurisdictional areas of the Tribunal are established:

(a) General;

(b) Intelligence and Security;

(d) National Disability Insurance Scheme;

(e) Protection;

(f) Social Security;

(g) Taxation and Business;

(h)

Veterans' and Workers' Compensation

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(2) The President:

(a) may establish one or more lists as subareas within a

jurisdictional area; and

(b) may abolish any such list.

(3) Before establishing or abolishing a list, the President must consult

the Tribunal Advisory Committee.

(4)

The Tribunal's powers in relation to a proceeding are to be

exercised in the jurisdictional area or list that the President directs.

(5) If a direction is made in writing, the direction is not a legislative

instrument.

197 Jurisdictional area leaders

Assignment of jurisdictional area leaders

(1) The Minister may, in consultation with the President, assign either

or both of the following to be a leader of one or more jurisdictional

areas:

(a) the President;

(b) a Non-Judicial Deputy President appointed on a salaried

basis.

(2) The Minister may, on the recommendation of the President, vary or

revoke an assignment under subsection (1).

(3) The President must not make a recommendation to the Minister to

vary or revoke an assignment under subsection (1) unless:

(a) the assignment has been in effect for more than 6 months;

and

(b) the President is satisfied that the variation or revocation

would meet the operational needs of the Tribunal.

(4) If an assignment under subsection (1) is made in writing, the

assignment is not a legislative instrument.

Functions of jurisdictional area leaders

(5) A jurisdictional area leader has the following functions:

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(a) to provide intellectual leadership to members assigned to the

jurisdictional area, including by promoting best practice in

decision-making by those members;

(b) to assist the President to ensure that the Tribunal operates

efficiently and effectively and continually pursues the

objective in section 9 across all jurisdictional areas;

strategy of the jurisdictional area in consultation with the

President;

(d) to assist the President to manage the performance and

conduct of members assigned to the jurisdictional area;

(e) to provide training, education and professional development

opportunities to members assigned to the jurisdictional area;

(f) to identify systemic issues related to the making of

reviewable decisions arising in the caseload of the

jurisdictional area and to inform the President of those issues.

Acting jurisdictional area leaders

(6) The Minister may, in consultation with the President, assign a

Non-Judicial Deputy President appointed on a salaried basis or a

senior member appointed on a salaried basis to act, for a period of

no more than 3 months, as a jurisdictional area leader in relation to

a jurisdictional area:

(a) during a vacancy in the position of a jurisdictional area leader

in relation to the jurisdictional area (whether or not an

assignment has previously been made to the position); or

(b) during any period, or during all periods, when a jurisdictional

area leader in relation to the jurisdictional area:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

position.

Note:

For rules that apply to a person acting as a jurisdictional area leader,

see section 33A of the

Acts Interpretation Act 1901

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198 Assignment of members to lead lists

Assignments

(1) The President may assign a Deputy President or senior member to

lead one or more lists.

(2) Subject to subsection (4), the President may vary or revoke an

assignment under subsection (1).

Acting assignments

(3) The President may assign a Deputy President or senior member to

act as the leader of a list:

(a) during a vacancy in the position of leader of that list (whether

or not an assignment has previously been made to the

position); or

(b) during any period, or during all periods, when the leader of

that list:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

position.

Note:

For rules that apply to a person acting as the leader of a list, see

section 33A of the

Acts Interpretation Act 1901

Consultation

(4) The President must not make, vary or revoke an assignment under

subsection (1) or (3) unless the President has consulted each

jurisdictional area leader of each list affected by the making,

variation or revocation.

Assignment not a legislative instrument

(5) If an assignment under subsection (1) or (3) is made in writing, the

assignment is not a legislative instrument.

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199 Assignment of members to jurisdictional areas

Deputy Presidents

(1) A Deputy President is assigned to every jurisdictional area.

Senior member leading a list

(2) A senior member assigned to lead a list is assigned to the

jurisdictional area within which the list is established.

Assignment by President

(3) The President may, in writing, assign a member (other than the

President or a Deputy President) to one or more jurisdictional

areas.

(4) However, the President must not do so if an assignment under

subsection (8) in relation to the member has been made and has not

been revoked.

(5) Before assigning a member to a jurisdictional area, the President

must be satisfied that the member has the appropriate skills,

qualifications and experience.

(6) The President may vary or revoke an assignment under

subsection (3) at any time.

(7) An assignment under subsection (3) is not a legislative instrument.

Assignment by Governor-General

(8) The Governor-General may, on the recommendation of the

Minister, assign a member (other than the President or a Deputy

President) to one or more jurisdictional areas by specifying the

assignment in the member's instrument of appointment.

(9) However, the Governor-General must not do so if an assignment

under subsection (8) in relation to the member has been made and

has been revoked.

(10) Before the Governor-General assigns a member to a jurisdictional

area, the Minister must be satisfied that:

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(a) there are exceptional circumstances that justify the

assignment; and

(b) the member has the appropriate skills, qualifications and

experience.

(11) The Governor-

General may at any time, by varying a member's

instrument of appointment:

(a) assign the member to one or more additional jurisdictional

areas; or

(b)

revoke the member's assignment to each of the

jurisdictional

areas.

Subdivision C

Performance and conduct of members

200 President may give directions to members

(1) The President may give a written direction to a non-judicial

member relating to the performance of the member's duties.

(2) The member must comply with the direction.

(3) A direction given under subsection (1):

(a)

must be consistent with the President's functions; and

(b) must not relate to a particular proceeding in the Tribunal.

(4) A direction under subsection (1) is not a legislative instrument.

201 Code of conduct

(1) The President must, in writing, determine a code of conduct for

non-judicial members.

Note:

A serious breach of the code of conduct may lead to termination of a

non-

judicial member's appointment (see section

221).

(2) Without limiting subsection (1), the code of conduct must make

provision for the taking of action by the President or a

jurisdictional area leader in relation to non-judicial members

upholding the code of conduct.

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(3) Subsection (1) does not limit section 36 (President may make with

practice directions).

(4) The President must publish the code of conduct.

(5) The code of conduct is not a legislative instrument.

202 Performance standard

(1) The President must, in writing, determine a performance standard

for non-judicial members.

Note:

A serious breach of the performance standard may lead to termination

of a non-

judicial member's appointment (see section

221).

(2) Without limiting subsection (1), the performance standard must

make provision for the taking of action by the President or a

jurisdictional area leader in relation to non-judicial members

meeting the performance standard.

(3) Subsection (1) does not limit section 36 (President may make with

practice directions).

(4) The President must publish the performance standard.

(5) The performance standard is not a legislative instrument.

203 President may investigate conduct of members

(1) This section applies if the President forms the opinion that a

non-judicial member may have engaged in conduct that:

(a) may constitute a breach of the code of conduct; or

(b) may constitute a breach of the performance standard; or

the member in accordance with section 221; or

(d) may adversely affect, or may have adversely affected, the

performance of official duties by the member; or

(e) may adversely affect, or may have adversely affected, public

trust and confidence in the Tribunal.

Note:

For example, the President may form the opinion because of a

complaint made to the Tribunal in relation to the conduct.

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(2) The President may:

(a) do one or more of the following:

(i) investigate the conduct;

(ii) report on an investigation of the conduct;

(iii) deal with a report of an investigation of the conduct;

(iv) refer the conduct to a person or body;

(v) direct a person or body to investigate the conduct;

(vi) authorise, in writing, a person or body to do any of the

above;

(vii) take any measures in relation to the member that the

President believes are reasonably necessary to maintain

public trust and confidence in the Tribunal; or

(b) take no action, or no further action, in relation to the conduct.

Note 1:

The President is also required to notify the Minister if the President

reasonably believes that there are grounds for terminating the

member's appointment under section

221 (see section 222).

Note 2:

For protections for persons involved in investigating conduct of

members, see section 204.

(3) The President may, at any time after forming the opinion

mentioned in subsection (

1), temporarily restrict the member's

duties if the President reasonably believes that doing so is in the

public, or the Tribunal's, interest.

204 Protection of persons involved in investigating conduct of

members etc.

(1) A person who is performing or exercising functions or powers

under or for the purposes of section 203 in relation to conduct that

was, or may have been, engaged in by a member, or assisting in

performing or exercising those functions or powers, has the same

protection and immunity as a Justice of the High Court.

(2) A person appearing before a person who is performing or

exercising functions or powers under or for the purposes of

section 203 in relation to conduct that was, or may have been,

engaged in by a member has the same protection, and is subject to

the same liabilities, as a witness in proceedings in the High Court.

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Division

3--Member appointment provisions

Subdivision A

Appointment of members

205 Appointment of President

Appointment by Governor-General

(1) The President is to be appointed by the Governor-General, by

written instrument, on the recommendation of the Minister.

(2) Before the Minister makes a recommendation to the

Governor-General, the Minister must:

(a) consult the Chief Justice of the Federal Court; and

(b) be satisfied that the person was assessed as suitable for the

appointment through an assessment process that:

(i) was merit-based; and

(ii) included public advertising of the position; and

(iii) complied with the requirements (if any) prescribed by

the regulations.

Qualification for appointment

(3) A person must not be appointed as the President unless the person

is a Judge of the Federal Court.

Period of appointment

(4) The President holds office for a period of 5 years unless a shorter

period is specified in the instrument of appointment.

(5) If the instrument of appointment specifies a shorter period, the

instrument must state the reasons why the shorter period is

specified.

Basis of appointment

(6) The President must be appointed on a salaried basis.

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Reappointment

(7) A person may be reappointed as the President by written

instrument made within 6 months before the end of the period

specified in the person's instrument of appointment.

(8) Paragraph (2)(b) does not apply in relation to the reappointment of

a person who, immediately before the start of the period of

reappointment, holds office as the President under a previous

appointment under subsection (1).

206 Appointment of Judicial Deputy Presidents

Appointment by Governor-General

(1) A Judicial Deputy President is to be appointed by the

Governor-General, by written instrument, on the recommendation

of the Minister.

(2) Before the Minister makes a recommendation to the

Governor-General, the Minister must:

(a) consult the Chief Justice of the court of which the person is a

Judge; and

(b) seek, and take into account, the advice of the President in

relation to:

(i) whether the appointment would meet the operational

needs of the Tribunal; and

(ii) the effect of the appointment on the number of Judicial

Deputy Presidents relative to the number of

Non-Judicial Deputy Presidents, senior members and

general members.

Qualification for appointment

(3) A person must not be appointed as a Judicial Deputy President

unless the person is:

(a) a Judge of the Federal Court; or

(b) a Judge of the Federal Circuit and Family Court of Australia

(Division 1).

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Period of appointment

(4) A Judicial Deputy President holds office for a period of 5 years

unless a shorter period is specified in the instrument of

appointment.

(5) If the instrument of appointment specifies a shorter period, the

instrument must state the reasons why the shorter period is

specified.

Basis of appointment

(6) A Judicial Deputy President must be appointed on a sessional

basis.

207 Appointment of Non-Judicial Deputy Presidents

Appointment by Governor-General

(1) A Non-Judicial Deputy President is to be appointed by the

Governor-General, by written instrument, on the recommendation

of the Minister.

(2) Before the Minister makes a recommendation to the

Governor-General, the Minister must:

(a) seek, and take into account, the advice of the President in

relation to:

(i) whether the appointment would meet the operational

needs of the Tribunal; and

(ii) the financial capacity of the Tribunal for the

appointment; and

(iii) the effect of the appointment on the number of

Non-Judicial Deputy Presidents relative to the number

of senior members and general members; and

(b) be satisfied that the person was assessed as suitable for the

appointment through an assessment process that:

(i) was merit-based; and

(ii) included public advertising of the position; and

(iii) complied with the requirements (if any) prescribed by

the regulations.

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Qualification for appointment

(3) A person must not be appointed as a Non-Judicial Deputy

President unless:

(a) the person is enrolled as a legal practitioner and has been so

enrolled for at least 10 years; and

(b) either:

(i) the person is a former Judge; or

(ii) the Minister is satisfied that the person has substantial

expertise in one or more areas relevant to the

jurisdiction of the Tribunal.

Period of appointment

(4) A Non-Judicial Deputy President holds office for a period of 5

years unless a shorter period is specified in the instrument of

appointment.

(5) If the instrument of appointment specifies a shorter period, the

instrument must state the reasons why the shorter period is

specified.

Basis of appointment

(6) A Non-Judicial Deputy President may be appointed on a salaried or

sessional basis.

Reappointment

(7) A person may be reappointed as a Non-Judicial Deputy President

by written instrument made within 6 months before the end of the

period specified in the person's instrument of appointment.

(8) Before a person is reappointed as a Non-Judicial Deputy President,

the Minister must seek, and take into account, the advice of the

President in relation to

the person's performance against the

performance standard.

(9) Paragraph (2)(b) applies only in relation to every second

reappointment of a person after the person's first appointment

under subsection (1).

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208 Appointment of senior members and general members

Appointment by Governor-General

(1) A senior member or general member is to be appointed by the

Governor-General, by written instrument, on the recommendation

of the Minister.

(2) Before the Minister makes a recommendation to the

Governor-General, the Minister must:

(a) seek, and take into account, the advice of the President in

relation to:

(i) whether the appointment would meet the operational

needs of the Tribunal; and

(ii) the financial capacity of the Tribunal for the

appointment; and

(iii) the effect of the appointment on the number of senior

members and general members relative to the number of

Non-Judicial Deputy Presidents; and

(b) be satisfied that the person was assessed as suitable for the

appointment through an assessment process that:

(i) was merit-based; and

(ii) included public advertising of the position; and

(iii) complied with the requirements (if any) prescribed by

the regulations.

Qualification for appointment

senior member

(3) A person must not be appointed as a senior member unless:

(a) the person is enrolled as a legal practitioner and has been so

enrolled for at least 7 years; or

(b)

the Minister is satisfied that the person has at least 7 years'

specialised training or experience in a subject matter relevant

to the jurisdiction of the Tribunal.

Qualification for appointment

general member

(4) A person must not be appointed as a general member unless:

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(a) the person is enrolled as a legal practitioner and has been so

enrolled for at least 5 years; or

(b)

the Minister is satisfied that the person has at least 5 years'

specialised training or experience in a subject matter relevant

to the jurisdiction of the Tribunal.

Period of appointment

(5) A senior member or general member holds office for a period of 5

years unless a shorter period is specified in the instrument of

appointment.

(6) If the instrument of appointment specifies a shorter period, the

instrument must state the reasons why the shorter period is

specified.

Basis of appointment

(7) A senior member or general member may be appointed on a

salaried or sessional basis.

Reappointment

(8) A person may be reappointed as a senior member or general

member by written instrument made within 6 months before the

end of the period specified in the person's instrument of

appointment.

(9) Before a person is reappointed as a senior member or general

member, the Minister must seek, and take into account, the advice

of the President in relation to the person's perfo

rmance against the

performance standard.

(10) Paragraph (2)(b) applies only in relation to every second

reappointment of a person to an office after the person's first

appointment to that office under subsection (1).

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209 Minister may establish assessment panel

(1) The Minister may, from time to time, establish one or more panels

(

assessment panels

) of persons to assess a candidate or candidates

for appointment as a member.

(2) The regulations may make provision for and in relation to

assessment panels.

(3) Without limiting subsection (2), the regulations may make

provision for and in relation to the following:

(a) the establishment of assessment panels;

(b) the composition of assessment panels;

(d) the methodology to be used by assessment panels in

assessing candidates for appointment as a member;

(e) the provision of assistance by the Department to assessment

panels, including secretariat services and clerical assistance.

210 Appointment of a Judge not to affect tenure etc.

(1) The appointment of a Judge as a member, or service by a Judge as

a member, does not affect:

(a)

the Judge's tenure of office as a Judge; or

(b)

the Judge's rank, title, status, precedence, salary, annual or

other allowances or other rights or privileges as the holder of

the Judge's office as a Judge.

(2)

For all purposes, the Judge's service as a member is taken to be

service as a Judge.

(3) A member who is a Judge ceases to hold office as a member if the

member ceases to be a Judge.

211 Extension of appointment

(1) The Minister may, at the request of the President and by written

instrument, extend a member's appointment if, apart from this

section, the member's appointment would cease to have effect

(other than under section 220 or 221) on a day (the

cessation day

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(2) The extension must be made before the cessation day.

(3) The extended appointment has effect until the earliest of the

following:

(a) the end of the period of 3 months after the cessation day;

(b) if the member gives a resignation under section 220

the

time when that resignation takes effect;

221

the time when that termination takes effect.

(4) An instrument made under subsection (1) is not a legislative

instrument.

212 Acting appointments

President

(1) The Minister may, by written instrument, appoint a person to act as

the President:

(a) during a vacancy in the office of President (whether or not an

appointment has previously been made to the office); or

(b) during any period, or during all periods, when the President:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

(2) A person must not be appointed to act as the President unless:

(a) the person is qualified, as mentioned in subsection 205(3), to

be appointed as the President; and

(b) the Minister has consulted the Chief Justice of the Federal

Court.

Other members

(3) The Minister may, at the request of the President and by written

instrument, appoint a person to act as a member other than the

President:

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(a) during a vacancy in the office of a member other than the

President (whether or not an appointment has previously

been made to the office); or

(b) during any period, or during all periods, when a member

other than the President:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

(4) A person must not be appointed to act as a member other than the

President unless:

(a) if the person is to act as a Judicial Deputy President:

(i) the person is qualified, as mentioned in subsection

206(3), to be appointed as a Judicial Deputy President;

and

(ii) the Minister has consulted the Chief Justice of the court

of which the person is a Judge; or

(b) if the person is to act as a Non-Judicial Deputy President

the person is qualified, as mentioned in subsection 207(3), to

be appointed as a Non-Judicial Deputy President; or

the person is

qualified, as mentioned in subsection 208(3), to be appointed

as a senior member; or

(d) if the person is to act as a general member

the person is

qualified, as mentioned in subsection 208(4), to be appointed

as a general member.

Extension of acting appointment

(5) If a person has been appointed under this section to act as a

member, the Minister may extend the person's appointment if the

Minister is satisfied that it is necessary to do so by reason of a

pending proceeding or other special circumstances.

(6) The extension must be made:

(a) in writing; and

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(b) before the day that the member who was absent or unable to

perform the duties of the member's office returns to perform

those duties.

(7) The extension must not be for more than 12 months.

213 Oath or affirmation of office

(1) A person who is appointed or reappointed as a member or to act as

a member must, before beginning to discharge the duties of the

member's office, take an oath or affirmation.

(2) The oath or affirmation is an oath or affirmation that the person

will well and truly serve in the office, and do right to all manner of

people according to law without fear or favour, affection or ill-will.

(3) An oath or affirmation to be taken by the President must be taken

before:

(a) the Governor-General; or

(b) a Justice of the High Court; or

(d) a Judge of the Supreme Court of a State or a Territory.

(4) An oath or affirmation to be taken by a member other than the

President must be taken before:

(a) the Governor-General; or

(b) a Justice of the High Court; or

(d) a Judge of the Supreme Court of a State or a Territory; or

(e) the President.

Subdivision B

--Members' terms and conditions

214 Remuneration

(1) A non-judicial member is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Remuneration Tribunal is in operation,

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the member is to be paid the remuneration that is prescribed by the

rules.

(2) A non-judicial member is to be paid the allowances that are

prescribed by the rules.

(3) This section has effect subject to the

Remuneration Tribunal Act

1973

215 Leave

Salaried members

(1) A salaried member has the recreation leave entitlements that are

determined by the Remuneration Tribunal.

(2) The Minister may grant the President leave of absence, other than

recreation leave, on the terms and conditions as to remuneration or

otherwise that the Minister determines.

(3) The President may grant a salaried member (other than the

President) leave of absence, other than recreation leave, on the

terms and conditions as to remuneration or otherwise that the

President determines.

Sessional members

(4) The President may grant leave of absence to a sessional member on

the terms and conditions that the President determines.

216 Other paid work

Salaried non-judicial members

(1) A non-judicial member appointed on a salaried basis must not

engage in paid work outside the duties of the member's offi

without the President's approval.

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Sessional non-judicial members

(2) A non-judicial member appointed on a sessional basis must not

engage in any paid work that conflicts or could conflict with the

proper performance of the member's duties.

217 Appearances before Tribunal

(1) A person covered by subsection (2) must not appear in a

proceeding in the Tribunal:

(a) as a representative of a party to the proceeding; or

(b) as an expert witness in the proceeding.

(2) The following persons are covered by this subsection:

(a) a member;

(b) a person who ceased to be a member during:

(i) the 12 months before the day of the appearance; or

(ii) if a law of a State or Territory has the effect of

prescribing a longer period before the day of the

appearance

that longer period.

(3) Subsection (1) does not apply if the person has permission to

appear in the proceeding from:

(a) if the person is the President

the Minister; or

(b) in any other case

the President.

218 Disclosure of interests

General duty to disclose interests

(1) If a member has an interest, pecuniary or otherwise, that conflicts

or could conflict with the proper performance of the member's

duties, the member must disclose the nature of the interest to the

President (or, if the member is the President, the Minister).

Disclosure of interests relating to proceedings

(2) If a member who is:

(a) a member of the Tribunal as constituted for the purposes of a

proceeding; or

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(b) performing or exercising a function or power of the Tribunal

in relation to a proceeding;

has an interest, pecuniary or otherwise, that conflicts or could

conflict with the proper performance of the member's duties in the

proceeding, the member:

(i) the parties to the proceeding; and

(ii) the President (or, if the member is the President, the

Minister); and

(d) must not take part in the proceeding or exercise any powers

in relation to the proceeding unless the parties and the

President (or, if the member is the President, the Minister)

consent.

Timing of disclosure

(3) A disclosure under this section must be made as soon as possible

after the relevant facts have come to the member's knowledge.

219 Register of interests

(1) The President must keep a register of disclosures made under

section 218.

(2) The President may keep the register by electronic means.

(3) The register must contain, for each disclosure:

(a) the nature of the interest disclosed; and

(b) any action taken as a result of the disclosure.

(4) The register is not a legislative instrument.

220 Resignation

(1)

A member may resign the member's appointment by giving the

Governor-General a written resignation.

(2) The member must also give a copy of the written resignation to the

President.

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(3) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

221 Termination of appointment

(1) The Governor-General may, on the recommendation of the

Minister, terminate the appointment of a non-judicial member if:

(a) the member is convicted of an indictable offence; or

(b)

the member is unable to perform the duties of the member's

office because of physical or mental incapacity; or

(c)

the member's conduct or behaviour amounts to serious

misconduct by the member; or

(d) the member is a salaried member and is absent, except on

leave of absence, for 5 consecutive days or for 10 days in any

12 months; or

(e) the member is a sessional member and is unavailable, except

on leave of absence, to perform the duties of the member's

office for more than 3 months; or

(f) the member engages in conduct that constitutes a serious

breach of the code of conduct; or

(g) the member engages in conduct that constitutes a serious

breach of the performance standard; or

(h) the member is a salaried member and engages, except with

the President's approval, in paid work outside the duties of

the member's office (see subsection

216(1)); or

(i) the member is a sessional member and engages in paid work

that conflicts or could conflict with the proper performance

of the member's duties (see subsection

216(2)); or

(j) the member fails, without reasonable excuse, to comply with

section 218 (disclosure of interests).

(2) Without limiting the kinds of conduct that may constitute a serious

breach of the code of conduct or performance standard for the

purposes of paragraph (1)(f) or (g), such conduct includes:

(a) repeatedly breaching the code of conduct or performance

standard; and

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(b) breaching the code of conduct or performance standard in a

way that is having, or is likely to have, a damaging effect on

public trust and confidence in the Tribunal; and

failing to comply with a direction under subsection 200(1) in

relation to the breach.

(3) The Governor-General must terminate the appointment of a

non-judicial member if the member:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(c)

compounds with the member's creditors; or

(d)

makes an assignment of the member's remuneration for the

benefit of the member's creditors.

222 President must notify Minister about grounds for termination

If the President reasonably believes that there are grounds for

terminating a non-

judicial member's appointment under section

221, the President must notify the Minister as soon as possible.

223 Additional terms and conditions

A non-judicial member holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Minister.

Members and staff of Tribunal

Part 8

Management of Tribunal

Division 4

Section 224

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183

Division

4--Management of Tribunal

Subdivision A

Management functions of President

224 Management of administrative affairs of Tribunal

(1) The President is responsible for managing the administrative

affairs of the Tribunal.

(2) The

administrative affairs

of the Tribunal do not include the

corporate and registry services of the Tribunal.

Subdivision B

Appointment and functions of Principal

Registrar

225 Principal Registrar

There is to be a Chief Executive Officer and Principal Registrar of

the Administrative Review Tribunal.

226 Functions of Principal Registrar

(1) The Principal Registrar has the following functions:

(a) to assist the President in managing the administrative affairs

of the Tribunal;

(b) to assist the Tribunal to pursue the objective in section 9;

(d) any other function conferred on the Principal Registrar by

this Act or another Act;

(e) to do anything incidental or conducive to the performance of

any of the above functions.

Note:

The Principal Registrar is also responsible for matters relating to the

Tribunal under the

Public Governance, Performance and

Accountability Act 2013

and the

Public Service Act 1999

(see sections

238 and 241).

(2) The following matters relating to the Tribunal are the

corporate

and registry services

of the Tribunal:

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(a) communications;

(b) finance;

(d) the work health and safety of members, staff members and

other persons interacting with the Tribunal;

(e) information technology;

(f) libraries;

(g) records management;

(h) administrative and case management support for proceedings

in the Tribunal;

(i) procurement and contract management;

(j) property;

(k) risk oversight and management;

(l) security;

(m) statistics;

(n) any other matter prescribed by the rules.

(3) The Principal Registrar is not subject to direction by the President

in relation to the Principal Registrar's performance or exercise of

functions or powers under:

(a) the

Public Governance, Performance and Accountability Act

2013

; or

(b) the

Public Service Act 1999

227 Appointment of Principal Registrar

Appointment by Governor-General

(1) The Chief Executive Officer and Principal Registrar is to be

appointed by the Governor-General, by written instrument, on the

recommendation of the Minister.

(2) Before the Minister makes a recommendation to the

Governor-General, the Minister must:

(a) be satisfied that the person has appropriate qualifications,

knowledge or experience; and

(b) be satisfied that the person was assessed as suitable for the

appointment through an assessment process that:

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Management of Tribunal

Division 4

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185

(i) was merit-based; and

(ii) included public advertising of the position; and

(iii) complied with the requirements (if any) prescribed by

the regulations; and

Period of appointment

(3) The Principal Registrar holds office for a period of 5 years.

Basis of appointment

(4) The Principal Registrar must be appointed on a salaried basis.

Reappointment

(5) Paragraph (2)(b) does not apply in relation to the reappointment of

a person who, immediately before the start of the period of

reappointment, holds office as the Principal Registrar under a

previous appointment under subsection (1).

228 Acting appointments

The President may, by written instrument, appoint a person to act

as the Principal Registrar:

(a) during a vacancy in the office of Principal Registrar (whether

or not an appointment has previously been made to the

office); or

(b) during any period, or during all periods, when the Principal

Registrar:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

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Management of Tribunal

Section 229

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229 Remuneration

(1) The Principal Registrar is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Remuneration Tribunal is in operation,

the Principal Registrar is to be paid the remuneration that is

prescribed by the rules.

(2) The Principal Registrar is to be paid the allowances that are

prescribed by the rules.

(3) This section has effect subject to the

Remuneration Tribunal Act

1973

230 Leave

(1) The Principal Registrar has the recreation leave entitlements that

are determined by the Remuneration Tribunal.

(2) The President may grant the Principal Registrar leave of absence,

other than recreation leave, on the terms and conditions as to

remuneration or otherwise that the Minister determines.

231 Other paid work

The Principal Registrar must not engage in paid work outside the

duties of the Principal Registrar's office without the President's

approval.

232 Disclosure of interests

(1) A disclosure by the Principal Registrar under section 29 of the

Public Governance, Performance and Accountability Act 2013

(which deals with the duty to disclose interests) must be made to

the President.

(2) Subsection (1) applies in addition to any rules made for the

purposes of that section.

(3) For the purposes of this Act and the

Public Governance,

Performance and Accountability Act 2013

, the Principal Registrar

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187

is taken not to have complied with section 29 of that Act if the

Principal Registrar does not comply with subsection (1) of this

section.

233 Resignation

(1) The Principal

Registrar may resign the Principal Registrar's

appointment by giving the Governor-General a written resignation.

(2) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

234 Termination of appointment

(1) The Governor-General may, on the recommendation of the

Minister, terminate the appointment of the Principal Registrar if:

(a) the Principal Registrar is convicted of an indictable offence;

(b) the Principal Registrar is unable to perform the duties of the

Principal Registrar's office because of physical or mental

incapacity; or

(c)

the Principal Registrar's conduct or behaviour amounts to

serious misconduct by the Principal Registrar; or

(d) the Minister is satisfied that the performance of the Principal

Registrar has been unsatisfactory for a significant period; or

(e) the Principal Registrar is absent, except on leave of absence,

for 5 consecutive days or for 10 days in any 12 months; or

(f) the Pri

ncipal Registrar engages, except with the President's

approval, in paid work outside the duties of the Principal

Registrar's office (see section

231); or

(g) the Principal Registrar fails, without reasonable excuse, to

comply with section 29 of the

Public Governance,

Performance and Accountability Act 2013

(which deals with

the duty to disclose interests) or rules made for the purposes

of that section.

(2) The Governor-General must terminate the appointment of the

Principal Registrar if the Principal Registrar:

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(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(c)

compounds with the Principal Registrar's creditors; or

(d)

makes an assignment of the Principal Registrar's

remuneration

for the benefit of the Principal Registrar's

creditors.

235 Additional terms and conditions

The Principal Registrar holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Minister.

Subdivision C

Leadership of Tribunal

236 Tribunal Advisory Committee

(1) The Tribunal Advisory Committee is established by this section.

Membership

(2) The Tribunal Advisory Committee consists of:

(a) the President; and

(b) the Principal Registrar; and

(d) such other members or staff members as are nominated in

writing by the President.

(3) The President is the Chair of the Tribunal Advisory Committee.

Functions

(4) The Tribunal Advisory Committee has the following functions:

(a)

to promote the Tribunal's objective in section

(b) to promote the training, education and professional

development of members;

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Management of Tribunal

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189

(d) to review the performance of the Tribunal, including its

financial performance;

(e) to oversee trends and patterns across, and systemic issues

arising in, the jurisdictional areas;

(f) to advise the President and the Principal Registrar on any

matter relating to the above functions;

(g) to advise the President on any matter relating to the code of

conduct, the performance standard or the practice directions;

(h) to do anything incidental to the performance of the above

functions.

(5) In performing the functions of the Tribunal Advisory Committee,

the members of the Committee (other than a member of the

Committee who is a Judge) must have regard to any views

expressed by stakeholders.

(6) Subsection (5) does not apply if the matter relates to a particular

proceeding in the Tribunal.

Meetings

(7) The President must convene such meetings of the Tribunal

Advisory Committee as are necessary for the performance of the

Committee's

functions.

(8) The President must preside at all meetings at which the President is

present.

(9) If the President is unable to attend a meeting, the President must

nominate another member of the Tribunal Advisory Committee to

preside at the meeting.

Part 8

Members and staff of Tribunal

Division 5

Staff and consultants

Section 237

190

Administrative Review Tribunal Bill 2023

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Division

5--Staff and consultants

237 Appointment of registrars

Appointment by Principal Registrar

(1) A registrar is to be appointed by the Principal Registrar by written

instrument.

Qualification for appointment

(2) A person must not be appointed as a registrar unless:

(a) the person is a staff member; and

(b) the person:

(i) has obtained a degree from a university, or an

educational qualification of a similar standing, in the

field of law; or

(ii) has obtained an educational qualification, or has training

or experience, related to dispute resolution; or

(iii) has, in the opinion of the Principal Registrar, experience

related to one or more functions or powers of the

Tribunal.

238 Staff

(1) The staff of the Tribunal must be persons engaged under the

Public

Service Act 1999

(2) For the purposes of the

Public Service Act 1999

(a) the Principal Registrar and the APS employees assisting the

Principal Registrar together constitute a Statutory Agency;

and

(b) the Principal Registrar is the Head of that Statutory Agency.

239 APS employees and others made available

(1) The Tribunal may be assisted by the following persons, whose

services are made available to the Tribunal in connection with the

Members and staff of Tribunal

Part 8

Staff and consultants

Division 5

Section 240

No. , 2023

Administrative Review Tribunal Bill 2023

191

performance or exercise of any of the Tribunal's functions or

powers:

(a) an employee of an Agency (within the meaning of the

Public

Service Act 1999

);

(b) an officer of the Supreme Court of Norfolk Island.

(2) When performing services for the Tribunal under subsection (1), a

person is subject to the directions of the Principal Registrar.

240 Consultants

The Principal Registrar may, on behalf of the Commonwealth,

engage consulta

nts to assist in the performance of the Tribunal's

functions.

Part 8

Members and staff of Tribunal

Division 6

Application of finance law and reporting requirements

Section 241

192

Administrative Review Tribunal Bill 2023

No. , 2023

Division

6--Application of finance law and reporting

requirements

241 Application of finance law

For the purposes of the finance law (within the meaning of the

Public Governance, Performance and Accountability Act 2013

(a) the following group of persons is a listed entity:

(i) the Principal Registrar;

(ii) the staff members;

(iii) persons engaged under subsection 90(1);

(iv) consultants engaged under section 240; and

(b) the listed entity is to be known as the Administrative Review

Tribunal; and

listed entity; and

(d) the persons mentioned in paragraph (a) are officials of the

listed entity; and

(e) the purposes of the listed entity include the functions of the

Principal Registrar mentioned in section 226.

242 Report by President

(1) As soon as practicable after 30 June in each financial year, the

President must prepare a report on the management of the

administrative affairs of the Tribunal during the financial year.

(2) The report for a financial year must include:

(a) a description of any measures taken by the Tribunal during

that year to pursue the objective in section 9; and

(b) an assessment of the operation of each jurisdictional area

during that year; and

the guidance and appeals panel for the purposes of

proceedings during that year; and

Members and staff of Tribunal

Part 8

Application of finance law and reporting requirements

Division 6

Section 242

No. , 2023

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193

(d) the number of applications made during the year to the

Tribunal for review of decisions; and

(e) particulars of the results of reviews of decisions by the

Tribunal during the year; and

(f) the number of guidance and appeals panel proceedings in the

Tribunal during that year, and particulars of the results of

those proceedings; and

(g) the number of proceedings in the Tribunal involving

non-participating parties during that year; and

(h) a summary of any actions taken by the Tribunal under section

185 (referring questions of law) during that year; and

(i) a summary of any actions taken by the President or

jurisdictional area leaders during that year to:

(i) identify systemic issues related to the making of

reviewable decisions arising in the caseload of the

Tribunal; and

(ii) inform relevant Ministers, relevant Commonwealth

entities and the Council of those issues; and

(j) an overview of any actions taken during that year (including

any actions taken under section 203) in relation to:

(i) non-judicial members upholding the code of conduct; or

(ii) non-judicial members meeting the performance

standard; or

(iii) the training, education and professional development of

members; and

(k) a description of any measures taken by the President during

that year to engage with:

(i) civil society; or

(ii) persons whose interests are affected by reviewable

decisions; and

(l) any other information prescribed by the rules.

(3) A report prepared under this section after 30 June in a year must be

given to the Minister by 15 October of that year.

(4) The Minister must cause a copy of the report to be tabled in each

House of the Parliament within 15 sitting days of that House after

the report is given to the Minister.

Members and staff of Tribunal

Part 8

Other matters concerning management

Division 7

Section 243

No. , 2023

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195

Division

7--Other matters concerning management

243 Registries

The Minister may establish such registries of the Tribunal as the

Minister thinks fit.

244 Proceedings arising out of management of Tribunal

Any judicial or other proceeding relating to a matter arising out of

the management of the administrative affairs of the Tribunal,

including any proceeding relating to anything done by the

President or the Principal Registrar under Divisions 4 to 7, may be

instituted by or against the Commonwealth.

Part 9

Administrative Review Council

Division 1

Preliminary

Section 245

196

Administrative Review Tribunal Bill 2023

No. , 2023

Part

9--Administrative Review Council

Division

1--Preliminary

245 Simplified outline of this Part

This Part establishes the Administrative Review Council. The

Council is separate from the Tribunal.

The Council does not review individual decisions. Its functions

relate to the Commonwealth administrative law system. Those

functions include matters relating to:

(a) monitoring the integrity and operation of the

Commonwealth administrative law system; and

(b) inquiring into and reporting on matters related to the

making of administrative decisions and the exercise of

administrative discretions; and

Commonwealth administrative law system, the making

of administrative decisions and the exercise of

administrative discretions.

The Council consists of the President, the Commonwealth

Ombudsman, the Australian Information Commissioner and other

members appointed by the Governor-General. To be appointed, a

member must have knowledge or experience in a specified area, or

be a senior official of a Commonwealth entity. The

Governor-General appoints one of the members to be the Chair of

the Council.

The staff assisting the Council are to be APS employees in the

Department whose services are made available to the Council. For

the purposes of the

Public Governance, Performance and

Accountability Act 2013

, the Council is part of the Department.

Part 9

Administrative Review Council

Division 2

Establishment

Section 246

198

Administrative Review Tribunal Bill 2023

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Division

2--Establishment

246 Administrative Review Council

The Administrative Review Council is established by this section.

247 Membership of Council

(1) The Administrative Review Council consists of the following

members:

(a) the President;

(b) the Commonwealth Ombudsman;

(d) at least 3, but not more than 10, other members.

(2) The performance or exercise of the functions or powers of the

Council is not affected by reason of the number of appointed

members falling below 3 for less than 6 months.

248 Application of finance law

(1) For the purposes of paragraph (a) of the definition of

Department

of State

in section 8 of the

Public Governance, Performance and

Accountability Act 2013

, the Administrative Review Council is

prescribed in relation to the Department.

(2) If a Council member is an official of a Commonwealth entity other

than the Department, then, for the purposes of the

Public

Governance, Performance and Accountability Act 2013

, the

Council member is not an official of the Department merely

because they are a Council member.

Administrative Review Council

Part 9

Council functions etc.

Division 3

Section 249

No. , 2023

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199

Division

3--Council functions etc.

249 Functions and powers of Council

(1) The Council has the following functions:

(a) to monitor the integrity and operation of the Commonwealth

administrative law system;

(b) to:

(i) inquire into the adequacy of procedures used in relation

to the making of administrative decisions and the

exercise of administrative discretions; and

(ii) consult and advise in relation to those procedures;

administrative decisions and the exercise of administrative

discretions;

(d) to inquire into the availability, accessibility and effectiveness

of review of administrative decisions and administrative

discretions;

(e) to develop and publish guidance in relation to the making of

administrative decisions and the exercise of administrative

discretions;

(f) to support education and training for officials of

Commonwealth entities in relation to:

(i) making administrative decisions and exercising

administrative discretions; and

(ii) the Commonwealth administrative law system;

(g) any other function conferred on the Council by this Act or

another Act;

(h) to do anything incidental or conducive to the performance of

any of the above functions.

(2) The Council may, on its own initiative or at the request of the

Minister, do any or all of the following:

(a) inquire into;

(b) prepare a report relating to;

Part 9

Administrative Review Council

Division 3

Council functions etc.

Section 250

200

Administrative Review Tribunal Bill 2023

No. , 2023

a matter relating to any of the Council's functions.

(3) The Council may do all things necessary or convenient to be done

for or in connection with the performance of its functions.

(4) A reference in this Division to an administrative decision or an

administrative discretion includes a reference to an administrative

decision made, or administrative discretion exercised, otherwise

than under an enactment.

250 Reports by Council

(1) When the Council concludes its consideration of a matter in respect

of which the Council has determined a report is to be prepared, the

Council must prepare a report on the matter and give the report to

the Minister.

(2) The Minister must cause a copy of the report to be tabled in each

House of the Parliament within 15 sitting days of that House after

the report is given to the Minister.

251 Meetings of Council

Convening meetings

(1) The Council must hold such meetings as are necessary for the

efficient performance of its functions.

(2) The Chair of the Council may convene a meeting at any time.

Presiding at meetings

(3) The Chair of the Council must preside at all meetings at which the

Chair is present.

(4) If the Chair is not present at a meeting, the Council members

present must elect one of themselves to preside at the meeting.

Quorum

(5) At a meeting of the Council, a quorum is constituted by 5 Council

members.

Administrative Review Council

Part 9

Council functions etc.

Division 3

Section 251

No. , 2023

Administrative Review Tribunal Bill 2023

201

Voting at meetings

(6) A question arising at a meeting of the Council is to be determined

by a majority of the votes of the Council members present and

voting.

(7) The person presiding at a meeting of the Council has a deliberative

vote and, if the votes are equal, a casting vote.

Conduct of meetings

(8) The Council may, subject to this Part, regulate proceedings at its

meetings as it considers appropriate.

Note:

Section 33B of the

Acts Interpretation Act 1901

contains further

information about the ways in which Council members may

participate in meetings.

Part 9

Administrative Review Council

Division 4

Appointment

Section 252

202

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Division

4--Appointment

252 Appointment of certain Council members

(1) Appointed members are to be appointed by the Governor-General

by written instrument.

(2) An appointed member holds office on a part-time basis.

253 Appointment of Chair of Council

(1) One Council member is to be appointed by the Governor-General

by written instrument as the Chair of the Council.

(2) An appointed member whose instrument of appointment contains a

statement of the kind mentioned in subsection 255(2) (exception

appointment for specified project) cannot be appointed as the Chair

of the Council.

254 Qualification for appointment

(1) A person is not to be appointed as an appointed member unless the

person:

(a) has an extensive knowledge of administrative law or public

administration; or

(b) has extensive experience providing legal services related to

administrative law; or

of people, or groups of people, significantly affected by

government decisions; or

(d) is an official of a Commonwealth entity who:

(i) is an Agency Head (within the meaning of the

Public

Service Act 1999

); or

(ii) is an SES employee; or

(iii) holds a position that is equivalent to, or higher than, a

position occupied by an SES employee.

Note:

The expression

SES employee

is defined in section 2B of the

Acts

Interpretation Act 1901

Administrative Review Council

Part 9

Appointment

Division 4

Section 255

No. , 2023

Administrative Review Tribunal Bill 2023

203

(2) Before a person is appointed as an appointed member, the Minister

must:

(a) take into account the need for a diversity of skills, expertise,

experience and knowledge within the Council; and

(b) be satisfied that:

(i) there will be at least 2 appointed members who were not

officials of a Commonwealth entity immediately before

their appointment; and

(ii) there will be at least one appointed member of the kind

mentioned in subparagraph (i) who is qualified as

mentioned in paragraph (1)(c).

255 Period of appointment

General rule

(1) An appointed member holds office for the period specified in the

instrument of appointment. The period must not exceed 5 years.

Exception

appointment for specified project

(2) An instrument appointing an appointed member may state that the

member is appointed for the purpose of taking part in a project

specified in the instrument that is being, or is to be, undertaken by

the Council.

(3) If an instrument appointing an appointed member contains such a

statement:

(a) the member is to take part in the project and has the rights of

a Council member only for the purposes of taking part in the

project; and

(b) despite subsection (1), if the appointment has not ceased

under subsection (1) and has not been terminated under

section 261

the appointment ceases when the Chair of the

Council certifies, in writing, that the Council has finished the

project.

Part 9

Administrative Review Council

Division 4

Appointment

Section 256

204

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256 Acting appointments

The Minister may, by written instrument, appoint a Council

member to act as the Chair of the Council:

(a) during a vacancy in the office of the Chair of the Council

(whether or not an appointment has previously been made to

the office); or

(b) during any period, or during all periods, when the Chair of

the Council:

(i) is absent from duty or from Australia; or

(ii) is, for any reason, unable to perform the duties of the

office.

Note:

For rules that apply to acting appointments, see sections 33AB and

33A of the

Acts Interpretation Act 1901

257 Remuneration

(1) An appointed member is to be paid the remuneration that is

determined by the Remuneration Tribunal. If no determination of

that remuneration by the Remuneration Tribunal is in operation,

the appointed member is to be paid the remuneration that is

prescribed by the rules.

(2) An appointed member is to be paid the allowances that are

prescribed by the rules.

(3) This section has effect subject to the

Remuneration Tribunal Act

1973

258 Leave

The Minister may grant leave of absence to an appointed member

on the terms and conditions that the Minister determines.

259 Disclosure of interests

(1) A Council member who has an interest, pecuniary or otherwise, in

a matter being considered or about to be considered by the Council

must disclose the nature of the interest to a meeting of the Council.

Administrative Review Council

Part 9

Appointment

Division 4

Section 260

No. , 2023

Administrative Review Tribunal Bill 2023

205

(2) The disclosure must be made as soon as possible after the relevant

facts hav

e come to the Council member's knowledge.

(3) The disclosure must be recorded in the minutes of the meeting of

the Council.

(4) Unless the Council otherwise determines, the Council member:

(a) must not be present during any deliberation by the Council

on the matter; and

(b) must not take part in any decision of the Council with respect

to the matter.

(5) For the purposes of making a determination under subsection (4),

the Council member:

(a) must not be present during any deliberation of the Council

for the purpose of making the determination; and

(b) must not take part in making the determination.

(6) A determination under subsection (4) must be recorded in the

minutes of the meeting of the Council.

260 Resignation

(1) An appointed member may resi

gn the appointed member's

appointment by giving the Governor-General a written resignation.

(2)

The Chair of the Council may resign the Chair's appointment as

the Chair without resigning the Chair's appointment as a Council

member by giving the Governor-General a written resignation.

(3) The resignation takes effect on the day it is received by the

Governor-General or, if a later day is specified in the resignation,

on that later day.

261 Termination of appointment

Termination of appointed members

(1) The Governor-General may, on the recommendation of the

Minister, terminate the appointment of an appointed member if:

Part 9

Administrative Review Council

Division 4

Appointment

Section 262

206

Administrative Review Tribunal Bill 2023

No. , 2023

(a) the appointed member is convicted of an indictable offence;

(b) the appointed member is unable to perform the duties of the

appoi

nted member's office because of physical or mental

incapacity; or

(c)

the appointed member's conduct or behaviour amounts to

serious misconduct by the appointed member; or

(d) the appointed member is absent, except on leave of absence,

from 3 consecutive meetings of the Council; or

(e) the appointed member fails, without reasonable excuse, to

comply with section 259 (disclosure of interests).

(2) The Governor-General must terminate the appointment of an

appointed member if the appointed member:

(a) becomes bankrupt; or

(b) applies to take the benefit of any law for the relief of

bankrupt or insolvent debtors; or

(c)

compounds with the appointed member's creditors; or

(d)

makes an assignment of the appointed member's

remuneration for the benefit of th

e appointed member's

creditors.

Termination of members appointed for a specified project

(3) The Governor-General may at any time terminate the appointment

of an appointed member whose instrument of appointment contains

a statement of the kind mentioned in subsection 255(2)

(exception

appointment for specified project).

262 Additional terms and conditions

An appointed member holds office on the terms and conditions (if

any) in relation to matters not covered by this Act that are

determined by the Minister.

Administrative Review Council

Part 9

Staff to assist Council

Division 5

Section 263

No. , 2023

Administrative Review Tribunal Bill 2023

207

Division

5--Staff to assist Council

263 Arrangements relating to staff of the Department

(1) The staff assisting the Council are to be APS employees in the

Department whose services are made available to the Council, by

the Secretary of the Department, in connection with the

performance or exercise

of any of the Council's functions or

powers.

Note:

The expression

APS employee

is defined in section 2B of the

Acts

Interpretation Act 1901

(2) The Secretary of the Department must consult the Chair of the

Council before making staff available to the Council.

(3) When performing services for the Council, the staff are subject to

the directions of the Council.

Part 9

Administrative Review Council

Division 6

Annual report

Section 264

208

Administrative Review Tribunal Bill 2023

No. , 2023

Division

6--Annual report

264 Annual report

(1) After the end of each financial year, the Council must prepare and

give a report to the Minister for presentation to the Parliament on

the operations of the Council during that financial year.

(2) The report for a financial year must include a description of any

systemic issues related to the making of reviewable decisions that

the President has informed the Council of during that year.

Note:

One of the President's functions is to inform relevant Ministers,

relevant Commonwealth entities and the Council of any systemic

issues related to the making of reviewable decisions that have been

identified in the caseload of the Tribunal: see paragraph 193(i).

(3) The report for a financial year may include a description of:

(a) any actions taken by the Council during that year in response

to a systemic issue related to the making of reviewable

decisions; and

(b) any response, that the Council is aware of, from a

Commonwealth entity or a Minister during that year in

relation to a systemic issue related to the making of

reviewable decisions.

Notice and information about administrative decision

Part 10

Preliminary

Division 1

Section 265

No. , 2023

Administrative Review Tribunal Bill 2023

209

Part

10--Notice and information about

administrative decision

Division

1--Preliminary

265 Simplified outline of this Part

Generally, decision-makers must take reasonable steps to give

notice of reviewable decisions to anyone whose interests are

affected. This requirement also applies to some decisions that are

related to reviewable decisions. Notices must include notice of any

review rights and decision-makers must have regard to matters

prescribed by the rules.

A person whose interests are affected by a reviewable decision

may request the decision-maker to give a statement of reasons for

the decision. Applications can be made to the Tribunal if a

statement of reasons is not given or is inadequate.

This Part contains the standard provisions for these matters. Other

legislation can include provisions that apply in addition to, or

instead of, these standard provisions.

Part 10

Notice and information about administrative decision

Division 2

Decision-makers to give notice of decisions

Section 266

210

Administrative Review Tribunal Bill 2023

No. , 2023

Division

2--Decision

makers to give notice of decisions

266 Decision-maker to give notice of decision and review rights

When this section applies

(1) If any decision in a review pathway is or would be a reviewable

decision, this section applies in relation to every decision in the

review pathway.

(2) However, this section does not apply in relation to a decision by a

court or a decision by the Tribunal under this Act.

(3) A

review pathway

is a decision and any decision on review or

further review of the decision.

General rules

(4) The decision-maker must take reasonable steps to give notice of

the decision to any person whose interests are affected by the

decision.

(5) The notice must include notice of the right (if any) to have the

decision reviewed, including, for a reviewable decision, the right to

apply to the Tribunal for review of the decision.

Exceptions

(6) However, subsection (4) does not require the decision-maker to

give notice if:

(a) another Act or an instrument made under an Act requires

notice to be given of review rights for the decision; or

(b) the decision is taken to have been made by:

(i) section 16 of this Act (decision is taken to be made if

timeframe expires); or

(ii) section 10 of the

Ombudsman Act 1976

(unreasonable

delay in exercising power); or

Notice and information about administrative decision

Part 10

Decision-makers to give notice of decisions

Division 2

Section 267

No. , 2023

Administrative Review Tribunal Bill 2023

211

(i) a decision not to impose a liability, penalty or any kind

of limitation on a person; or

(ii) a decision making an adjustment to the level of periodic

payments to be made to a person as a member of a class

of persons where a similar adjustment is being made to

the level of such payments to the other members of the

class; or

(iii) a decision that determines a person to be in the most

favourable of several categories of entitlement to a

monetary benefit established by an Act or an instrument

made under an Act;

and does not adversely affect the interests of any other

person.

Effect of failure to comply

(7) A failure to comply with this section does not affect the validity of

the decision.

267 Decision-maker must have regard to rules when giving notice of

decision

When this section applies

(1) If any decision in a review pathway is or would be a reviewable

decision, this section applies in relation to every decision in the

review pathway.

(2) However, this section does not apply in relation to a decision by a

court or a decision by the Tribunal under this Act.

General rule

(3) In giving notice of the decision to a person whose interests are

affected by the decision, the decision-maker must have regard to

the matters (if any) prescribed by the rules.

(4) Subsection (3) does not apply if the decision-maker has had regard

to the matters in giving notice of a decision of the same kind.

(5) Subsection (3) applies in relation to a notice given under:

Notice and information about administrative decision

Part 10

Decision-makers to give reasons for decisions

Division 3

Section 268

No. , 2023

Administrative Review Tribunal Bill 2023

213

Division

3--Decision

makers to give reasons for decisions

268 Requesting reasons for reviewable decision from decision-maker

(1) A person whose interests are affected by a reviewable decision

may request the decision-maker to give the person a statement of

reasons for the decision.

Note 1:

For which decisions are reviewable decisions, see section 12.

Note 2:

For when an organisation's or association's interests are taken to be

affected, see section 15.

Note 3:

For what must be included in a statement of reasons, see the definition

statement of reasons

in section 4.

(2) The request must be given to the decision-maker in writing.

Note:

Requests may be refused if made outside specified timeframes (see

subsection 269(8)).

269 Decision-maker to give statement of reasons

When this section applies

(1) This section applies if a person requests the decision-maker for a

reviewable decision to give the person a statement of reasons for

the decision under section 268.

General rules

(2) Within 28 days after receiving the request, the decision-maker

must give the person a statement of reasons for the decision.

(3) Before giving the statement of reasons to the person, the

decision-maker may remove from the statement any information

that concerns another person.

(4) Before giving the statement of reasons to the person, the

decision-maker may remove from the statement any information

specified in a certificate under section 272 (public interest

certificate in relation to statement of reasons).

Part 10

Notice and information about administrative decision

Division 3

Decision-makers to give reasons for decisions

Section 269

214

Administrative Review Tribunal Bill 2023

No. , 2023

(5) If the decision-maker removes information from a statement of

reasons under subsection (3) or (4), the decision-maker must, when

giving the statement, notify the applicant of the removal and the

reasons for it.

Exception

person is not affected

(6) Despite subsection (2), the decision-maker must refuse the request

if the person's interests are not affected by the decision.

Exception

person has already been given reasons

(7) Despite subsection (2), the decision-maker may refuse the request

if the person has already been given a statement of reasons for the

decision.

Note:

A statement of reasons for a decision may be given in the document

setting out the decision or separately.

Exception

timeframes

(8) Despite subsection (2):

(a) if the decision was set out in a document given to the person,

the decision-maker may refuse the request if the request is

not made within 28 days after the document was given to the

person; and

(b) if the decision was not set out in a document given to the

person, the decision-maker may refuse the request if the

request is not made within a reasonable time after the

decision is made.

Exception

would disclose information that concerns another

person

(9) Despite subsections (2) and (3), the decision-maker may refuse the

request if:

(a) giving the statement of reasons to the person would disclose

information that concerns another person; and

(b) it is not reasonably practicable for the decision-maker to

remove the information from the statement.

Notice and information about administrative decision

Part 10

Decision-makers to give reasons for decisions

Division 3

Section 270

No. , 2023

Administrative Review Tribunal Bill 2023

215

Exception

public interest certificate

(10) Despite subsections (2) and (4), the decision-maker may refuse the

request if:

(a) giving the statement of reasons would disclose information

specified in a certificate under section 272 (public interest

certificate in relation to statement of reasons); and

(b) the statement would be false or misleading if the information

were removed.

Decision-maker must explain refusal to give statement of reasons

(11) If the decision-maker refuses to give a statement of reasons for the

decision (other than under subsection (7)), the decision-maker must

give the person written notice that the request is refused.

(12) The notice must:

(a) explain the reason for the refusal; and

(b) be given within 28 days after receiving the request.

270 Applying to Tribunal to obtain reasons for reviewable decision

When this section applies

(1) This section applies if a person requests the decision-maker for a

reviewable decision to give the person a statement of reasons for

the decision under section 268 and:

(a) the person is given notice that the request is refused; or

(b) the person is not given a statement in response to the request

within 28 days after the request is received.

Tribunal may require decision-maker to give statement of reasons

(2) The person may apply to the Tribunal for a decision about whether

the decision-maker should give the person the statement of reasons.

(3) The Tribunal must decide whether the decision-maker should give

the person the statement of reasons.

(4) If the Tribunal decides that the decision-maker should give the

person the statement of reasons, the decision-maker must give the

Part 10

Notice and information about administrative decision

Division 3

Decision-makers to give reasons for decisions

Section 271

216

Administrative Review Tribunal Bill 2023

No. , 2023

person the statement of reasons within 28 days after the Tribunal

notifies the decision-

maker of the Tribunal's decision.

271 Applying to Tribunal to obtain adequate statement of reasons

When this section applies

(1) This section applies if:

(a) a person requests the decision-maker for a reviewable

decision to give the person a statement of reasons for the

decision under section 268; and

(b) the person is given a statement of reasons for the decision

under section 269 or 270.

Tribunal may require decision-maker to give adequate information

(2) The person may apply to the Tribunal for a decision about whether

the statement contains adequate information about any of the

following matters in relation to the decision:

(a) the findings on material questions of fact;

(b) the evidence or other material on which the findings are

based;

(3) The Tribunal must decide whether the statement contains adequate

information about the matter.

(4) If the Tribunal decides that the statement does not contain adequate

information about the matter, the decision-maker must give the

person an additional statement containing adequate information

about the matter within 28 days after the Tribunal notifies the

decision-

maker of the Tribunal's decision.

272 Public interest certificate in relation to statement of reasons

(1) The Attorney-General of the Commonwealth may certify, in

writing, that the disclosure of specified information in a statement

of reasons for a decision would be contrary to the public interest

for one or more of the following reasons:

Notice and information about administrative decision

Part 10

Decision-makers to give reasons for decisions

Division 3

Section 272

No. , 2023

Administrative Review Tribunal Bill 2023

217

(a) the disclosure would prejudice the security, defence or

international relations of the Commonwealth;

(b) the disclosure would involve the disclosure of deliberations

or decisions of the Cabinet or of a Committee of the Cabinet;

Crown in right of the Commonwealth in a judicial

proceeding that the information should not be disclosed.

(2) If an application is made under subsection 270(2) or 271(2) in

relation to the decision, the Attorney-General of the

Commonwealth is taken to have certified under subsection 91(1)

that the disclosure of the specified information in the proceeding in

relation to the application would be contrary to the public interest

for the reason specified in the certificate.

(3) If an application is made for review of the decision, the

Attorney-General of the Commonwealth is taken to have certified

under subsection 91(1) that the disclosure of the specified

information in the proceeding for the review would be contrary to

the public interest for the reason specified in the certificate.

(4) A certificate under subsection (1) is not a legislative instrument.

Part 11

Miscellaneous

Division 1

Preliminary

Section 273

218

Administrative Review Tribunal Bill 2023

No. , 2023

Part

11--Miscellaneous

Division

1--Preliminary

273 Simplified outline of this Part

Limitations apply to production and disclosure of some documents

and information by entrusted persons. An entrusted person is any

person who is, or has been, a member, the Principal Registrar, a

staff member or engaged to provide services to the Tribunal. There

are a number of situations where disclosure by entrusted persons is

authorised.

Some functions and powers of the Minister, President and Principal

Registrar may be delegated.

Functions or powers of the Tribunal in relation to a proceeding

may be performed or exercised by the Tribunal constituted for the

purposes of the proceeding under Division 4 of Part 4. In some

circumstances, Tribunal functions or powers may also be

performed or exercised by a member, the Principal Registrar, a

registrar or a staff member authorised by the President to do so.

The President may also perform or exercise Tribunal functions or

powers in some circumstances.

Matters dealt with in Division 5 include advisory opinions,

communicating electronically, giving documents, calculating short

periods of time, immunities, fees and legal or financial assistance.

Rules and regulations may be made relating to this Act.

Miscellaneous

Part 11

Confidentiality

Division 2

Section 274

No. , 2023

Administrative Review Tribunal Bill 2023

219

Division

2--Confidentiality

274 Protected information and documents

General rule

(1) An entrusted person must not be required to produce or disclose a

protected document or protected information to a court, tribunal,

authority or person (other than a parliament) that has the power to

require the production of documents or the answering of questions.

Exception

(2) However, subsection (1) does not apply to the extent that the

production or disclosure is necessary for the purposes of:

(a) this Act; or

(b) another Act or instrument made under an Act conferring

power on the Tribunal.

Meaning of

protected document

(3) A document is a

protected document

if the document:

(a) concerns another person; and

(b) was obtained by the entrusted person in the performance or

exercise of the entrusted person's fu

nctions or powers under

this Act, another Act or an instrument made under an Act.

Meaning of

protected information

(4) Information is

protected information

if the information:

(a) concerns another person; and

(b) was obtained by the entrusted person in the performance or

exercise of the entrusted person's functions or powers under

this Act, another Act or an instrument made under an Act.

Part 11

Miscellaneous

Division 2

Confidentiality

Section 275

220

Administrative Review Tribunal Bill 2023

No. , 2023

275 Evidence about Tribunal proceedings

An entrusted person must not be required to give evidence to a

court, tribunal, authority or person (other than a parliament) in

relation to any Tribunal proceeding.

276 Unauthorised disclosure of information

(1) A person who is an entrusted person commits an offence if:

(a) the person:

(i) makes a record of any information; or

(ii) discloses any information; and

(b) the person obtained the information:

(i) because of the person being an entrusted person; or

(ii) in the course of performing or exercising functions or

powers as an entrusted person.

Penalty: Imprisonment for 2 years.

(2) Subsection (1) does not apply if the making of the record, or the

disclosing of the information, is authorised by section 277

(authorisations to record or disclose information).

277 Authorisations to record or disclose information

Purposes connected with functions and powers

(1) An entrusted person may make a record of information, or disclose

information, if:

(a) the entrusted person obtained the information:

(i) because the person was an entrusted person; or

(ii) in the course of performing or exercising functions or

powers as an entrusted person; and

(b) the entrusted person makes the record, or discloses the

information, for purposes connected with the performance or

exercise of functions or powers under this Act, another Act

or an instrument made under an Act.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

Miscellaneous

Part 11

Confidentiality

Division 2

Section 277

No. , 2023

Administrative Review Tribunal Bill 2023

221

Disclosure required or authorised by law

(2) An entrusted person may disclose information if the disclosure is

required or authorised under this Act, another Act or an instrument

made under an Act.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

Disclosure to protect life, health or safety

(3) An entrusted person may disclose information if the entrusted

person reasonably believes that the collection, use or disclosure is

necessary to lessen or prevent a serious threat to the life, health or

safety of any individual, or to public health or safety.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

Publicly available information

(4) An entrusted person may make a record of information, or disclose

information, if the information has already been lawfully made

available to the public.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

Requirements to produce

(5) An entrusted person may disclose information or produce a

document to a court, tribunal, authority or person (including a

parliament) that has the power to require the production of

documents or the answering of questions.

Note:

A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the

Criminal Code

(6) However, subsection (5) does not apply if the disclosure or

production cannot be required because of section 274 (protected

information and documents).

Part 11

Miscellaneous

Division 3

Delegation

Section 278

222

Administrative Review Tribunal Bill 2023

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Division

3--Delegation

278 Delegation by Minister

General rule

(1)

The Minister may, in writing, delegate the Minister's functions or

powers under this Act to:

(a) the Secretary of the Department; or

(b) the President.

Exception

functions and powers that must not be delegated

(2) Despite subsection (1), the Minister must not delegate a function or

power the Minister has under section 295 (rules).

Secretary of the Department must comply with directions

(3) In performing or exercising a function or power delegated under

this section, the Secretary of the Department must comply with any

written directions of the Minister.

279 Delegation by President

General rule

(1)

The President may, in writing, delegate the President's

functions or

powers under this Act, another Act or an instrument made under an

Act to:

(a) a member; or

(b) the Principal Registrar; or

(d) a staff member.

Exception

functions and powers that must not be delegated

(2) Despite subsection (1), the President must not delegate:

Miscellaneous

Part 11

Delegation

Division 3

Section 279

No. , 2023

Administrative Review Tribunal Bill 2023

223

(a) a function or power the President has because the President

is:

(i) a member of the Tribunal as constituted for the purposes

of a proceeding; or

(ii) a Council member; or

(iii) authorised under section 281 to perform or exercise the

function or power; or

(b) a function or power under a provision listed in the following

table.

Functions and powers the President must not delegate

Item

Column 1

Provision

Column 2

Summary of topic of provision

section 14

decision-maker

Division 3 of Part 4

practice directions

subsection 109(2)

Tribunal guidance decisions

Division 5 of Part 7

referring questions of law

section 196

jurisdictional areas and lists

section 197

jurisdictional area leaders

section 199

assignment of members to

jurisdictional areas

section 200

President may give directions to

members

section 201

code of conduct

section 202

performance standard

subsection 203(3)

President may restrict member's

duties

section 222

President must notify Minister about

grounds for termination

Subdivision B of Division 4 of

Part 8

appointment and functions of

Principal Registrar

Part 11

Miscellaneous

Division 3

Delegation

Section 280

224

Administrative Review Tribunal Bill 2023

No. , 2023

Delegates must comply with directions

(3) In performing or exercising a function or power delegated under

this section, the delegate must comply with any written directions

of the President.

280 Delegation by Principal Registrar

General rule

(1) The Principal Registrar may, in writing, delegate the Principal

Registrar's functions or powers un

der this Act, another Act or an

instrument made under an Act to a registrar or staff member.

Exception

functions and powers that must not be delegated

(2) Despite subsection (1), the Principal Registrar must not delegate a

function or power that the Principal Registrar has because the

Principal Registrar is authorised under section 283 to perform or

exercise the function or power.

Delegates must comply with directions

(3) In performing or exercising a function or power delegated under

this section, the delegate must comply with any written directions

of the Principal Registrar.

Miscellaneous

Part 11

Performing and exercising functions and powers of Tribunal

Division 4

Section 281

No. , 2023

Administrative Review Tribunal Bill 2023

225

Division

4--Performing and exercising functions and

powers of Tribunal

Subdivision A

Performance and exercise of functions and

powers

281 Who may perform or exercise functions or powers

(1) A function or power of the Tribunal in relation to a proceeding

may be performed or exercised as follows:

(a) by the Tribunal as constituted for the purposes of the

proceeding;

(b) before the start of the hearing of the proceeding

by:

(i) the President; or

(ii) an authorised person;

by an

authorised person, but only as approved by the Tribunal as

constituted for the purposes of the proceeding;

(d) for a function or power under subsection 114(1) (Tribunal

may correct error in decision or statement of reasons)

by an

authorised person, but only:

(i) as approved by the President; and

(ii) if the Tribunal as constituted for the purposes of the

proceeding is for any reason unavailable;

(e) for a function or power under section 102 (reinstatement of

application) or subsection 115(2) (taxing costs)

by an

authorised person at any time.

(2) To avoid doubt, the paragraphs of subsection (1) do not limit each

other.

(3) For the purposes of paragraph (1)(c) and subparagraph (1)(d)(i), an

approval does not need to be in writing.

Part 11

Miscellaneous

Division 4

Performing and exercising functions and powers of Tribunal

Section 282

226

Administrative Review Tribunal Bill 2023

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282 How functions or powers must be performed or exercised

Authorised person must comply with President's directions

(1) In performing or exercising a function or power of the Tribunal, an

authorised person must comply with any directions given by the

President under this section.

(2) If the direction is made in writing, the direction is not a legislative

instrument.

Applying opinion, belief or state of mind

(3) If performing or exercising a function or power of the Tribunal

depends on the Tribunal's opinion, belief or state of mind in

relation to a matter, the President or an authorised person may

perform or exercise the function or power on the opinion, belief or

state of mind of the President or authorised person in relation to the

matter.

Subdivision B

Authorisations to perform and exercise

functions and powers of Tribunal

283 Authorisations for Principal Registrar

The President may, in writing, authorise the Principal Registrar to

perform or exercise a function or power of the Tribunal if:

(a) the President could authorise:

(i) a registrar to perform or exercise the function or power

of the Tribunal (see section 285); or

(ii) a staff member to perform or exercise the function or

power of the Tribunal (see section 286); or

(b) the rules prescribe that the Principal Registrar may be

authorised to perform the function or exercise the power.

284 Authorisations for members

(1) The President may, in writing, authorise a member to perform or

exercise a function or power of the Tribunal if:

(a) the President could authorise:

Miscellaneous

Part 11

Performing and exercising functions and powers of Tribunal

Division 4

Section 284

No. , 2023

Administrative Review Tribunal Bill 2023

227

(i) a registrar to perform or exercise the function or power

(see section 285); or

(ii) a staff member to perform or exercise the function or

power (see section 286); or

(b) the rules prescribe that a member may be authorised to

perform or exercise the function or power; or

provision listed in the following table.

Authorisations for members

Item

Column 1

Provision

Column 2

Summary of topic of provision

Part 3

starting a review

Division 5 of Part 4

Tribunal procedure

section 69

hearings to be in public unless practice

directions or Tribunal order requires

otherwise

section 70

Tribunal may restrict publication or

disclosure of information

section 76

taking evidence on oath or affirmation

section 78

inspection of documents produced under

summons

Subdivision B of Division 6 of

Part 4

management of proceedings

Subdivision A of Division 8 of

Part 4

withdrawing and dismissing applications

section 105

Tribunal decision on review of

reviewable decision

section 107

when Tribunal's decision on review

comes into operation

Division 10 of Part 4

after proceeding ends

section 127

Tribunal decision continues to operate

unless Tribunal orders otherwise

Part 6 (other than section 161)

proceedings in Intelligence and Security

jurisdictional area

Division 5 of Part 7

referring questions of law

Part 11

Miscellaneous

Division 4

Performing and exercising functions and powers of Tribunal

Section 285

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(2) However, a function or power of the Tribunal under section 54,

105, 107, 111 or 163 may be performed or exercised by a member

if and only if it relates to the performance or exercise of a function

or power by the member under section 103.

285 Authorisations for registrars

(1) The President may, in writing, authorise a registrar to perform or

exercise a function or power of the Tribunal if:

(a) the President could authorise a staff member to perform or

exercise the function or power (see section 286); or

(b) the rules prescribe that a registrar may be authorised to

perform or exercise the function or power; or

provision listed in the following table.

Authorisations for registrars

Item

Column 1

Provision

Column 2

Summary of topic of provision

Division 3 of Part 3

applying for review of decision

Subdivision A of Division 4

of Part 3

parties to proceeding

section 24

decision-maker must give Tribunal

additional statement if Tribunal requires

general rule

section 26

decision-maker must give Tribunal

additional documents on request

general

rule

section 28 (other than

subsection (8))

Exceptions

Tribunal may adjust

requirements

section 31

decision cannot be altered outside Tribunal

process

section 54

Tribunal can exercise powers of

decision-maker

section 65

certain parties may seek to withdraw from

being a party

subsection 66(2)

representation before Tribunal

Miscellaneous

Part 11

Performing and exercising functions and powers of Tribunal

Division 4

Section 285

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229

Authorisations for registrars

Item

Column 1

Provision

Column 2

Summary of topic of provision

subsections 68(2) and (3)

Tribunal may appoint interpreter

section 73

how a party may appear at a Tribunal case

event

section 74

Tribunal may summon person to give

evidence or produce documents

subsection 78(1)

inspection of documents produced under

summons

Subdivision B of Division 6

of Part 4

management of proceedings

Subdivision C of Division 6

of Part 4

dispute resolution processes

section 96

Tribunal may dismiss application if parties

consent

section 97

Tribunal must dismiss application if decision

is not reviewable decision

section 98

Tribunal may dismiss application if fee is

not paid

section 100

Tribunal may dismiss application if

applicant fails to comply with order etc.

Subdivision B of Division 8

of Part 4

decisions agreed by parties

section 105

Tribunal decision on review of reviewable

decision

section 107

when Tribunal's decision on review comes

into operation

section 111

notice of decision and statement of

reasons

review of reviewable decision

section 112

notice of decision and statement of

reasons

other proceedings

section 115

taxing costs

section 166

making and recording findings

section 167

communicating decisions

Part 11

Miscellaneous

Division 4

Performing and exercising functions and powers of Tribunal

Section 286

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Authorisations for registrars

Item

Column 1

Provision

Column 2

Summary of topic of provision

section 168

findings relating to procedures or practices

of agency

Division 3 of Part 10

decision-makers to give reasons for

decisions

(2) However:

(a) a function or power of the Tribunal under paragraph 22(1)(c)

or section 83 must not be performed or exercised in relation

to a proceeding by a registrar after the start of the hearing of

the proceeding; and

(b) a function or power of the Tribunal under section 54, 105,

107 or 111 may be performed or exercised by a registrar if

and only if it relates to the performance or exercise of a

function or power by the registrar under section 103.

286 Authorisations for staff members

The President may, in writing, authorise a staff member to perform

or exercise a function or power of the Tribunal if:

(a) it is a function or power of the Tribunal under:

(i) subsection 21(2) (parties and potential parties to be

notified of application); or

(ii) subsection 22(3) (parties to proceeding for review); or

(iii) section 72 (Tribunal must notify parties of Tribunal case

event); or

(iv) section 126 (parties to be notified of application); or

(v) section 139 (additional persons to be notified of

applications for review); or

(b) the rules prescribe that a staff member may be authorised to

perform or exercise the function or power.

Part 11

Miscellaneous

Division 5

Other matters

Section 288

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Division

5--Other matters

288 Tribunal may give advisory opinion

If another Act or an instrument made under an Act so provides, the

Tribunal may give an advisory opinion on a matter or question

referred to it in accordance with the Act or instrument and, for the

purpose of giving such an opinion, the Tribunal may hold such

hearings and inform itself in such manner as it considers

appropriate.

289 Certain things required to be done in writing may be done

electronically

(1) A requirement in any of the following provisions of this Act that a

thing be done in writing is taken to have been met if the thing is

done by electronic communication (within the meaning of the

Electronic Transactions Act 1999

) in the manner specified in the

practice directions:

(a) Division 4 of Part 3 (after an application is made);

(b) Part 4 (proceedings);

(d) Part 6 (proceedings in Intelligence and Security jurisdictional

area);

(e) section 270 (applying to Tribunal to obtain reasons for

reviewable decision);

(f) section 271 (applying to Tribunal to obtain adequate

statement of reasons);

(g) this Division.

(2) A requirement in another Act or an instrument under an Act that

information be given in writing to the Tribunal or a person for the

purposes of a proceeding in the Tribunal is taken to have been met

if the information is given by electronic communication (within the

meaning of the

Electronic Transactions Act 1999

) in the manner

specified in the practice directions.

Miscellaneous

Part 11

Other matters

Division 5

Section 290

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233

(3) Subsection (1) or (2) does not apply if Division 2 of Part 2 of the

Electronic Transactions Act 1999

applies to the requirement.

290 Giving documents

(1) A document or thing that is required or permitted by this Act or

any other law to be produced or given to the Tribunal must be

produced or given in accordance with the requirements (if any) in:

(a) the practice directions; and

(b) the rules.

(2) A document or thing that is required or permitted by this Act or

any other law to be produced or given to a person for the purposes

of a proceeding in the Tribunal must be produced or given in

accordance with the requirements (if any) in:

(a) the practice directions; and

(b) the rules.

291 Giving documents etc. to decision-maker

When section applies

(1) This section applies if the Tribunal or any person is permitted or

required under this Act to give a document or thing in relation to a

decision to the decision-maker for the decision.

Giving documents etc. to Secretary

(2) The Tribunal or person may instead give the document or thing to

the Secretary of the Department administered by the Minister who

administers:

(a) the Act under which the decision was made; or

(b) if the decision was made under an instrument

the Act under

which the instrument is made.

Giving documents etc. to holder of office

(3) If the holder of a particular office is prescribed by the rules, an Act

or an instrument made under an Act as a person to whom

documents or things may be given under this Act in relation to a

Part 11

Miscellaneous

Division 5

Other matters

Section 292

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class of decisions that includes the decision, the Tribunal or person

may instead give the document or thing to the holder of that office.

Note:

Sections 28A and 29 of the

Acts Interpretation Act 1901

deal with the

manner in which the documents may be given.

292 Calculation of short periods of time

If the period of time for doing anything:

(a) under this Act, any other Act or an instrument made under an

Act; or

(b) in accordance with an order of the Tribunal;

in relation to a proceeding in the Tribunal is less than 7 days, do

not count any day on which the registry of the Tribunal concerned

is not open to the public in working out whether the period has

ended.

293 Protection and immunity

Tribunal personnel

(1) Each of the following has the same protection and immunity as a

Justice of the High Court:

(a)

a member, in the performance of the member's duties;

(b) the Principal Registrar, in the performance of the Principal

Registrar's duties under

Part 3 (starting a review), Part 4

(proceedings), Part 5 (guidance and appeals panel), Part 6

(proceedings in Intelligence and Security jurisdictional area)

or Part 7 (appeals and references of questions of law to

Federal Court);

the performance of the person's

duties as an authorised person;

(d) a person conducting a dispute resolution process under this

Act, in conducting the dispute resolution process.

Representatives

(2) A legal practitioner or other person appearing before the Tribunal

on behalf of a party has the same protection and immunity as a

barrister appearing for a party in proceedings in the High Court.

Miscellaneous

Part 11

Other matters

Division 5

Section 294

No. , 2023

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235

Witnesses

(3) Subject to this Act, a person appearing before the Tribunal to give

evidence has the same protection, and is, in addition to the

penalties provided by this Act, subject to the same liabilities, as a

witness in proceedings in the High Court.

294 Legal or financial assistance

Applicants to Tribunal

(1) A person who applies, or proposes to apply, to the Tribunal for

review of a reviewable decision may apply to the Attorney-General

of the Commonwealth for assistance in respect of the proceeding in

relation to the application to the Tribunal.

(2) A person who makes an application, or proposes to make an

application, to refer a decision of the Tribunal to the guidance and

appeals panel (a

leave application

) may apply to the

Attorney-General of the Commonwealth for assistance in respect

of the leave application and the proceeding in relation to the

guidance and appeals panel application (if any) taken to be made

because of the referral.

Other parties to Tribunal proceedings

(3) A person who is, or proposes to become, a party to a proceeding in

the Tribunal may apply to the Attorney-General of the

Commonwealth for assistance in respect of the proceeding.

Court proceedings

(4) A person who:

(a) institutes, or proposes to institute; or

(b) is, or proposes to become, a party to;

a proceeding in a court in respect of a matter arising under this Act

may apply to the Attorney-General of the Commonwealth for

assistance in respect of the proceeding.

Part 11

Miscellaneous

Division 5

Other matters

Section 294

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Exceptions

proceedings prescribed by the rules

(5) Subsections (1) to (4) do not apply in relation to a kind of

proceeding prescribed by the rules.

(6) Subsection (2) does not apply in relation to a kind of leave

application prescribed by the rules.

Provision of assistance

(7) If the Attorney-General of the Commonwealth considers that:

(a)

it would involve hardship to the person to refuse the person's

application; and

(b)

in all the circumstances, it is reasonable that the person's

application should be granted;

the Attorney-General may authorise the provision by the

Commonwealth to the person of legal or financial assistance

determined by the Attorney-General in respect of the proceeding.

(8) The legal or financial assistance is subject to any conditions

determined by the Attorney-General of the Commonwealth.

Time for making applications not affected

(9) Nothing done under, or for the purposes of, this section extends a

period for making an application to the Tribunal.

Other assistance

(10) To avoid doubt, the power of the Commonwealth to make a

payment, or to make, vary or administer an arrangement or grant,

under this section must be disregarded for the purpose of

paragraph 32B(1)(a) of the

Financial Framework (Supplementary

Powers) Act 1997

Note:

The effect of this subsection is to make clear that this section does not

effectively limit the operation of section 32B of the

Financial

Framework (Supplementary Powers) Act 1997

. The Commonwealth

has the power to make, vary or administer an arrangement or grant

under that section whether the Commonwealth also has the power to

do so under this section.

Miscellaneous

Part 11

Rules and regulations

Division 6

Section 295

No. , 2023

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237

Division

6--Rules and regulations

295 Rules

(1) The Minister may, by legislative instrument, make rules

prescribing matters:

(a) required or permitted by this Act to be prescribed by the

rules; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) To avoid doubt, the rules may not do the following:

(a) create an offence or civil penalty;

(b) provide powers of:

(i) arrest or detention; or

(ii) entry, search or seizure;

(d) set an amount to be appropriated from the Consolidated

Revenue Fund under an appropriation in this Act;

(e) directly amend the text of this Act.

(3) Rules that are inconsistent with the regulations have no effect to

the extent of the inconsistency, but rules are taken to be consistent

with the regulations to the extent that the rules are capable of

operating concurrently with the regulations.

(4) The rules may make provision in relation to a matter by applying,

adopting or incorporating, with or without modification, a matter

contained in the practice directions:

(a) as in force or existing at a particular time; or

(b) as in force or existing from time to time.

(5) Subsection (4) has effect despite anything in subsection 14(2) of

the

Legislation Act 2003

Part 11

Miscellaneous

Division 6

Rules and regulations

Section 296

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296 Tribunal may charge fees

(1) The Tribunal may, on behalf of the Commonwealth, charge fees in

accordance with the rules.

(2) The rules may provide for fees to be payable in respect of the

following:

(a) applications to the Tribunal (including applications taken to

be made to the Tribunal);

(b) applications to the President;

(d) proceedings in the Tribunal;

(e) services provided by the Tribunal.

(3) Without limiting the scope of rules that may be made for the

purposes of subsection (2), those rules may prescribe, or prescribe

matters relating to, any or all of the following:

(a) the circumstances in which a fee is to be paid;

(b) who must pay;

(d) remittal, refund and waiver of fees.

(4) Rules made for the purposes of subsection (2) may do any or all of

the following:

(a) prescribe fees in respect of a particular class or classes of

applications, costs, proceedings or services;

(b) prescribe different fees in respect of different classes of

applications, costs, proceedings or services;

amount of, a fee;

(d) make provision in relation to the whole or a part of a fee;

(e) provide for the Tribunal to make orders relating to the

payment of a fee in relation to a proceeding.

(5) A fee must not be such as to amount to taxation.

(6) A fee charged under subsection (1):

(a) is a debt due to the Tribunal, on behalf of the

Commonwealth; and

Miscellaneous

Part 11

Rules and regulations

Division 6

Section 297

No. , 2023

Administrative Review Tribunal Bill 2023

239

(b) is recoverable by the Tribunal, on behalf of the

Commonwealth, in a court of competent jurisdiction.

297 Regulations

(1) The Governor-General may make regulations prescribing matters:

(a) required or permitted by this Act to be prescribed by the

regulations; or

(b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

Norfolk Island enactments

(2) The regulations may provide for:

(a) applications to be made to the Tribunal for review of

decisions made in the exercise of powers conferred by a

Norfolk Island enactment; and

(b) such modifications to the operation of this Act as are

necessary to provide for, and in relation to, the review of

those decisions in like manner to the review of equivalent

reviewable decisions under this Act; and

question referred to it under a Norfolk Island enactment.

Commonwealth of Australia Bills

ADMINISTRATIVE REVIEW TRIBUNAL BILL 2023